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2022 (9) TMI 565 - Insolvency & Bankruptcy
Maintainability of application - initiation of CIRP - Corporate Debtor committed a default in payment of it dues - failure to execute the lease deed - Financial Creditors - existence of debt and dispute or not - principles of natural justice - HELD THAT:-Admittedly, the Letter of Intent (LOI) has been executed between the petitioner and the respondent qua lease of place situated in Block No. 249-G Udyog Vihar, Gurgaon i.e. entire building comprising three basements plus ground plus three floors for lump sum value of Rs. 48.00 lacs per month including Rs. 8.00 lacs towards maintenance charges on rent. In response to that the applicant herein had to deposit six months' rent on which part deposit equivalent three months' rent payable within seven days of the signing of the Letter of Intent and the post clearance of the Legal Due Diligence (LDD) - It is admitted that a sum of Rs. 1.2 crore were extended as per LOI dated 30.07.2015 and the lease was to be executed by the parties accordingly in view of the said LOI. But no lease deed was executing afterward hence the said LOI did not fructify into the lease deed. The applicant herein deposited an amount of Rs. 1.2 crore as earnest money, according to the LOI dated 30.07.2015.
This Tribunal makes it abundantly clear that Hon'ble NCLAT in SPICEJET LTD. VERSUS AFFORDABLE INFRASTRUCTURE AND HOUSING PROJECTS PVT. LTD. [2020 (2) TMI 1506 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, DELHI] does not bar any right of the parties and it is open to the respective parties to raise all factual and legal pleas before the Competent Authority/Adjudicating Authority when the necessary Application seeking appropriate relief is filed by the concerned party and further that said Authority' shall determine the said Application on merits, of course, after providing due opportunities to the contesting parties to air their the views, by adhering to the Principles of Natural Justice.
Hon'ble Supreme Court of India in the matter of M/S CONSOLIDATED CONSTRUCTION CONSORTIUM LIMITED VERSUS M/S HITRO ENERGY SOLUTIONS PRIVATE LIMITED [2022 (2) TMI 254 - SUPREME COURT], clearly laid down that if any advance payment has been made for providing goods and services, that would fall within the definition of Operational Debt. Herein, the applicant paid advance money Rs. 1.20 crore to the respondent corporate debtor for taking the premise situated in Gurgaon on lease and the said amount was not repaid as the respondent failed to execute the lease-deed.
Further, it is also observed in this context that advance made of Rs. 1.2 crore to the respondent Corporate Debtor was without any interest accrued thereon, therefore, the same does not come to the purview of the definition of Financial-Debt as 5(8) of the Code as the same was not for the time value for money, as defined under Section 5(8) of the Code.
The present petition under Section 7 of the Code qua the advance payment for the goods and services is not maintainable as the said advance payment does not come under the purview of definition 'Financial Debt' rather the same amounts to Operational Debt.
This Tribunal is of the view that the present petition under Section 7 of the Code is not maintainable. Accordingly, the present petition u/s. 7 stands rejected, with no order as to costs.