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TMI Blog2018 (1) TMI 1247X X X X Extracts X X X X X X X X Extracts X X X X ..... t 16B, Sector-l, Greater Noida (West). It was assured by the Corporate Debtor of repayment and that as a collateral security flat No.B-1, 904 to the extent of 1292 sq.ft. was also given. An unconditional guarantee was also given for the buy back of the said flat at a pre-settled and determined sum of Rs. 31,00,000/- in relation to which post dated cheques were also given commencing from 22.09.2016.Based on the specific request of the Corporate Debtor it is averred by the Financial Creditor that the said post dated cheques were not encashed. However, on 10.04.2017, the oral understanding based on which the investments were made was formalised and reduced into writing and signed by both parties and post dated cheques No. 792979 for Rs. 1,50,000/- dated 22.03.2017 as well as cheque bearing No. 792978 dated 22.06.2017 for a like amount issued in relation to agreement dated 10.04.2017 were dishonoured for want of sufficient funds. Again, cheque No. 792973 for Rs. 25,00,000/-also suffered the same fate. Consequent to the dishonour of cheques, a notice was sent to the Corporate Debtor on 08.07.2017. However, there has been no response to the said notice even though it was sent to the regi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner as an investment and also contended that the Corporate Debtor had given unconditional guarantee to buy back the allotted flat at pre-settled and determined amount of Rs. 31,00,000/- and also to pay interest @ 24% per annum with effect from 22.06.2016. Hence it is the submission of the Ld. Counsel for the Petitioner that as per agreement the same is to be considered and treated as amounts made available for time value for money as given in the definition of financial debt in Section 5(8) of IBC, 2016.The issue of post dated cheques, it is contended even though stands dishonoured subsequently, points out to the special understanding between the parties to treat the money as investment as well as to payback the said investment with assured return and it is contended by the Ld. Counsel for the Petitioner that it is squarely covered by the judgment as passed by the Hon'ble NCLAT in Nikhil Mehta & Sons v. AMR Infrastructure Ltd. in CA(AT)(Insolvency) No.07 of 2017 dated 21.07.2017. Taking into consideration the ratio laid in the above judgment as well as provisions of IBC, 2016, Ld. Counsel for the Petitioner represents that this Petition is maintainable under the provisions of IBC, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... greement." 6. In light of the above clause, it is contended by Ld. Counsel for the Corporate Debtor that the time period for handing over possession of the flat is available to the Corporate Debtor till April, 2019 and if at all there can be any default, it cannot be prior to the said period and can be only after it and in the circumstances since there has been no occurrence of default and in the absence of it the Petition as filed is not maintainable. In addition, technical objections relating to the Application being not complete, that the proposed IRP is not qualified and eligible and in this regard it is also pointed out that issue of demand notice dated 18.7.2017 annexed as Annexure E(colly) filed along with the Application by the Petitioner is also not relevant. 7. By way of rebuttal Learned Counsel for Petitioner points out the rejoinder which has been filed by the Petitioner wherein the Petitioner has sought to rely on the decision of the Hon'ble NCLAT already referred to and has also reiterated its contention as contained in the Petition and also points out efforts made to rectify certain mistakes which have been pointed out by the Corporate Debtor in relation to the com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration of the provisions of IBC,2016 in relation to Financial Creditor, financial debt and triggering the process of insolvency by way of Financial Creditor by virtue of Section 7 at paragraph 20, the following has been stated and which is reproduced below: From the aforesaid agreement/Memorandum of Understanding it is clear that appellants are "investors" and has chosen "committed return plan". The respondent in their turn agreed upon to pay monthly committed return to investors. Thus, the amount due to the appellants come within the meaning of 'debt' as defined in Section 3(11) of the 'I&B Code' which reads as follows:- "(11) "debt" means a liability or obligation in respect of a claim which is due from any person and includes a financial debt and operational debt;" 9. The fact of issue of post dated cheques for Rs. 25,00,000/- being the amount invested and for a further amount of Rs. 600,000/- by way of post dated cheques on quarterly basis towards interest clearly points out to the intention of the Corporate Debtor to treat the amounts received as amount invested. If the contention of the Ld. Counsel for Corporate Debtor that a default has not occurred and cannot oc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd other rules and regulations framed thereunder. 11. The moratorium as envisaged under the provisions of Section 14 as extracted hereunder shall follow in relation to the Corporate Debtor and the same is declared prohibiting all of the following, namely:- "(a) the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; (b) transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; (c) any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; (d) the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. However, the supply of essential goods or services to the corporate debtor as may be specified shall not be terminated or suspended or interrupted during ..... X X X X Extracts X X X X X X X X Extracts X X X X
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