# In the matter of Naresh Sevantilal Shah Vs. Malharshanti Enterprises and Anr. CA (AT) (Ins) No. 415 of 2020

> NCLAT judgment dated 2021-01-19. Citation: TCN-2021-NCLAT-00399. This case involves an appeal against an order passed by the National Company Law Tribunal…

- **Court:** NCLAT
- **Order date:** 19 Jan 2021
- **Citation:** TCN-2021-NCLAT-00399
- **Category:** IBC
- **Source page:** https://caseease.in/cases/ibc/nclat-new-delhi/naresh-sevantilal-shah-vs-malharshanti-enterprises-and-anr-ca-92e3fbc8

## Summary

### Background

This case involves an appeal against an order passed by the National Company Law Tribunal (NCLT), Mumbai, which initiated Corporate Insolvency Resolution Process (CIRP) against CAN Enterprises Private Limited (Corporate Debtor). The appeal was filed by Naresh Sevantilal Shah (Appellant), challenging the NCLT's decision based on a Company Petition filed by Malharshanti Enterprises (Operational Creditor) under Section 9 of the Insolvency and Bankruptcy Code (I&B Code). The Operational Creditor claimed that the Corporate Debtor failed to pay a sum of Rs. 94,64,770 as principal and Rs. 68,66,919 as interest, totaling Rs. 163,31,689, as of August 22, 2018. The Appellant argued that pre-existing disputes existed before the demand notice was issued, rendering the CIRP

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## Facts

The Corporate Debtor, CAN Enterprises Private Limited, engaged the Operational Creditor, Malharshanti Enterprises, for construction work on a project called 'Rose Villa' under a work order dated May 25, 2014. The Operational Creditor claimed non-payment of Rs. 94,64,770 as principal and Rs. 68,66,919 as interest as of August 22, 2018. The Operational Creditor issued a demand notice under Section 8 of the I&B Code on December 2, 2017, followed by another on August 23, 2018. The Corporate Debtor claimed pre-existing disputes regarding the quality of work and delay in completion, and invoked arbitration on April 10, 2018. The Adjudicating Authority admitted the petition under Section 9 of the I&B Code. The Appellant, Naresh Sevantilal Shah, the suspended Director

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## Issues and analysis

### Issue 1: Whether there was a pre-existing dispute between the parties and whether the pre-existence of …

**Ratio:** The existence of a dispute must be pre-existing, i.e., it must exist before the receipt

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**Reasoning:** The court reasoned that the Corporate Debtor did not raise any objection pertaining to

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**Interpretation:** The interpretation of 'pre-existing dispute' under Section 8 and 9 of the

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**Application:** In this case, the court found that the arbitration notice was sent after the

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## Parties

- **Judges:** Jarat Kuma…; Balvinder…; +1 more
- **Appellants:** Naresh Sevantilal…
- **Respondents:** CAN Enterprises…; Malharshanti…

## Timeline

- **2014-05-25 — Work Ord…**: Corporate Debtor hired the service of the Operational Creditor by a Work Order for…
- **2015-09-25 — Memorandum of…**: Appellant and Operational Creditor entered into a memorandum of understanding in respect…

## Legal provisions

- [Insolvency and Bankruptcy Code, 2016, Section 8 — Insolvency resolution by operational creditor](https://caseease.in/legal-provisions/insolvency-and-bankruptcy-code-2016/section-8)

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