# In the matter of Mr. Sanjay Kumar Vs Gannon Dunkerley And Company Limited And Anr.

> NCLAT judgment dated 2024-05-30. Citation: TCN-2024-NCLAT-00393. The appeal was filed against an order dated 04.09.2023 by the National Company Law Tribunal…

- **Court:** NCLAT
- **Order date:** 30 May 2024
- **Citation:** TCN-2024-NCLAT-00393
- **Category:** IBC
- **Source page:** https://caseease.in/cases/ibc/nclat-new-delhi/mr-sanjay-kumar-vs-gannon-dunkerley-and-company-limited-and-anr-1c58d0cb

## Summary

### Background

The appeal was filed against an order dated 04.09.2023 by the National Company Law Tribunal (NCLT), Allahabad Bench, which admitted a petition under Section 9 of the Insolvency and Bankruptcy Code (IBC), initiating the Corporate Insolvency Resolution Process (CIRP) against the appellant. The dispute arose from a contract awarded to Gannon Dunkerley & Co Ltd (Operational Creditor) by National Highway and Infrastructure Development Corporation Ltd (NHIDCL) for a project. The Operational Creditor then appointed Kapasi Infracon LLP (Corporate Debtor) as a sub-contractor. Disputes arose regarding payments, rental charges for equipment, and the completion of work. The Operational Creditor filed a Section 9 IBC petition against the Corporate Debtor, which was admitted by

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## Facts

On 09.11.2017/21.11.2017, Gannon Dunkerley & Co Ltd (Operational Creditor) was awarded a contract by National Highway and Infrastructure Development Corporation Ltd (NHIDCL). The contract involved the construction of a section of road from Jhanji to Demow. The Operational Creditor appointed Kapasi Infracon LLP (Corporate Debtor) as a sub-contractor. Disputes arose between the Operational Creditor and the Corporate Debtor regarding payments, rental charges for equipment, and the completion of work. From 12.11.2019 to 27.12.2021, disputes arose regarding the amount due. The Corporate Debtor completed 41.50% of the project. On 20.05.2022, the Corporate Debtor approached the Operational Creditor seeking release of funds. On 13.06.2022, the Operational Creditor

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## Issues and analysis

### Issue 1: Whether a pre-existing dispute existed between the Operational Creditor and the Corporate Debtor …

**Ratio:** The existence of a pre-existing dispute is a valid ground for rejecting a Section 9

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**Reasoning:** The Appellate Tribunal found that the Corporate Debtor had raised a plausible contention

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**Interpretation:** The existence of a pre-existing dispute is determined by examining the facts

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**Application:** In this case, the Appellate Tribunal found that the Corporate Debtor had

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## Parties

- **Judges:** Yogesh K…; Ajai Das Me…
- **Appellants:** Sanjay…
- **Respondents:** Kapasi Infracon…; Gannon Dunkerley…

## Timeline

- **2017-11-09 — Contract A…**: Gannon Dunkerley & Co Ltd…
- **2019-11-12 — Disputes…**: Disputes arise between Operational…

## Legal provisions

- [Insolvency and Bankruptcy Code, 2016, Section 9 — Application for initiation of corporate insolvency…](https://caseease.in/legal-provisions/insolvency-and-bankruptcy-code-2016/section-9)

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