Home Case Index All Cases Insolvency and Bankruptcy Insolvency and Bankruptcy + Tri Insolvency and Bankruptcy - 2020 (5) TMI Tri This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2020 (5) TMI 423 - Tri - Insolvency and BankruptcyMaintainability of application - Applicant claiming himself to be the Financial Creditor has claimed to have paid an amount to the Corporate Debtor against the purchase of the land of the Corporate Debtor as earnest money - HELD THAT:- On perusal of the record, it is found that there is no agreement, as such, with regard to the sale and purchase between the Corporate Debtor and Applicant. In support of the contention, the Applicant has annexed E-receipt of transfer of funds as well as few counterfoil showing transfer of the amount in the account of Corporate Debtor viz. Digjam Ltd. Apart from these documents, no other document(s) is/are annexed, where from it can be deduced, that the amounts are paid against the agreement for the sale and purchase of land of Corporate Debtor. It is well settled that the offer and acceptance must be based or founded on three components - certainty, commitment and communication. If any one of the three components is lacking either in the offer or in the acceptance, there cannot be a valid contract - Applicant in this case totally failed to produce any document(s) in support of his claim which would make the Applicant even entitled in the category of other "stakeholder" Even if it is assumed for the time that the alleged letter dated 14-9-2018 of the Applicant is received by the Corporate Debtor, then even law does not cast a duty on the person to whom a proposal is made to reply to that proposal and hence acceptance cannot be inferred from the silence of the offeree and as a general rule, a proposal is not accepted by mere silence on the part of the offeree. The Applicant is claiming himself in the category of clause (f) of sub-section 8 of section 5 which speaks about "any amount raised under any other transaction, including any forward sell or purchase agreement, having the commercial effect of borrowing - In the instant matter, the Applicant has failed to produce any documents/purchase agreement to substantiate his claim and/or show his bona fide as 'financial debt' so as to stand in the footing of "Financial Creditor." The Applicant in the application pleaded that the amount is paid as earnest money. Basically, earnest money serves two purposes: it remains as security or earnest money for performance of the contract of sale but it becomes part of payment of the purchase money immediately on fulfilment of the contract, which is found absent in this case because of want of documents, such as, Contract Agreement for sale and purchase. Admittedly, there is no contract between the Applicant and Corporate Debtor. Application dismissed.
|