TMI Blog2020 (2) TMI 910X X X X Extracts X X X X X X X X Extracts X X X X ..... dicating authority to only ascertain and record satisfaction in an adjudication under Section 7 of the Code as to the occurrence of default before admitting the petition. Besides in a petition under Section 7 of the Code, it does not matter that the debt is disputed so long as the debt is due and payable. After a reading of Section 7 of the Code along with Rule 4 (2) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, we are satisfied that a default has occurred and the application under sub-section 2 of Section 7 is complete. The IRP proposed does not have any disciplinary proceedings pending against him - Petition admitted. Petition admitted - moratorium declared. - C.P. IB NO. 645(PB) OF 2019 - - - Dated:- 21-10-2019 - Chief Justice M.M.Kumar, President And Dr. Deepti Mukesh, Judicial Member Aniket Bhattacharyya, Karan Khanna and Aarzoo Aneja, Advs. for the Petitioner. Manish Gandhi, and Praveen Agarwal, Advs. for the Respondent. JUDGMENT C.J. M.M. Kumar, The 'Financial Creditors'-M/s. Vishal Fabrics and two others have filed the instant petition under Section 7 of the Insolvency and Bankruptcy Code, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... MoU), dated 24.07.2014 01.08.2014, executed between both the petitioners. 7. As per clause No. 3 of the aforesaid MoU, dated 24.07.2014, the Respondent was to pay interest/profit @2.5% per month on the amount deposited/invested by the petitioner No. 1 for which it issued seven post-dated cheques of representing principal and interest amount. As per clause No. 4 the Respondent had the option to refund the amount of ₹ 50,00,000/- received from the petitioner after six months from the date of the execution of the MoU, along with the profits as mentioned therein. Further the terms of the MoU incorporated in clause 11 states that there was a locking period for six months from the date of execution of the MoU which provided that in case the Respondent remains unable to refund the deposited amount along with profit, then the petitioner No. 1 would have the full right to sell the abovementioned flats. The relevant clause Nos. 3, 4 11 of the MoU read as under:- 3. That the party of the First part and the party of the Second part have mutually agreed that from the date of execution of this Memorandum of Understanding, the party of the First Part will pay interest/profit @ 2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,904/-, payable in 12 equal monthly instalments for which it issued twelve post-dated cheques. It was also agreed between the parties that the petitioner No.2 would return the entire original signed BBA/MoU/Doc's/Receipts etc. to the Respondent proportionately after paying monthly principal amount at quarterly basis. Further the terms of the MoU incorporated in clause 12 provides that the Respondent in case or due to any reason, if remains unable to honour any of the cheques mentioned in the MoU then in that case the petitioner No. 2 without prejudice to other rights available to him, would have the full right to sell the flats disclosed in the MoU and the Respondent would be under obligation to transfer the same to the prospective buyer without any obstacles. Clause 13 contained in the MoU was inscribed for the purpose that in case of default on the part of the Respondent, it would be liable to pay a penalty @ ₹ 10,000/- per day per default apart from applicable interest and the legal expenses. At this stage it would be profitable to read clauses 8, 9, 11 to 13 of the said MoU which are as under: 8. That the party of the First part and the party of the Second part ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Name Amount Cheque No. Bank Date 1 Dinesh Khetan 16,66,667/- 284660 Axis Bank 01-09-14 2 Dinesh Khetan 16,66,667/- 284661 Axis Bank 01-10-14 3 Dinesh Khetan 16,66,667/- 284662 Axis Bank 01-11-14 4 Dinesh Khetan 16,66,667/- 284663 Axis Bank 01-12-14 5 Dinesh Khetan 16,66,667/- 284664 Axis Bank 01-01-15 6 Dinesh Khetan 16,66,667/- 284665 Axis Bank 01-02-15 7 Dinesh Khetan 16,66,667/- 284666 Axis Bank 01-03-15 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the Respondent's project namely 'AVJ-Heights' at Sector Zeta-I, Plot No. (GH-12/2), Greater Noida (U.P.) were allotted and sold to the petitioner No. 3 by the Respondent. Petitioner No. 3 has paid a sum of ₹ 38,00,000/- vide two cheques bearing Nos. 006745 006746, dated 24.02.2014, being earnest money towards the sale consideration. As per clause 5 of the said MoU the Respondent undertook to handover the possession of the said flats to the petitioner No. 3 within one year from the date of execution of the same. Further clause 8 provided that the Respondent would buy back the allotted flats from the petitioner No. 3 anytime within four months from the date of execution of the MoU at a total value of ₹ 40,89,211/- which was to be paid through Post-Dated Cheques of four monthly equal instalments. Clause Nos. 11 to 13 as stipulated in aforesaid MoU, dated 01.08.2014 and described in preceding para 7, were also formulated in MoU, dated 24.10.2014. 10. The petitioners have further claimed that the Respondent was not regular in payment of interest/profit as promised to them from the inception. There was delay and every time the cheques were handedover to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Mr. Dinesh Khaitan, the Respondent had transferred an amount of ₹ 25,00,000/- in the account of Petitioner No. 1-Vishal Fabrics vide bank transfer, dated 05.08.2015 and an amount of ₹ 85,47,143/- in the account of Mr. Dinesh Khaitan during the period 02.08.2014 to 05.08.2015. (iv) There was another financial assistance obtained for the financial need of the company against one property bearing No. 2486, Block C, Sushant Lok-I, Gurugram, Haryana. It was discussed and agreed between the parties that the said property would be purchased by Mr. Dinesh Khaitan and his associates namely Mr. Neeraj Kumar and Mr. Krishan Kumar for a sale consideration of ₹ 4,00,00,000/-. On such assurances of Mr. Dinesh Khaitan, one time settlement process initiated with the Bank, whereupon the said Bank consented for one-time settlement for an amount of ₹ 2,56,00,000/-. Towards obtaining the one-time settlement, an amount of ₹ 6,00,000/- was transferred by Mr. Dinesh Khaitan to the Bank. Afterwards taking undue advantage of circumstances of the Respondent, said persons turned hostile and stated that they have got the agreement drafted and printed on stamp paper for an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e unlawful deeds and attempts of the petitioners and their associates, the Official/Director of Respondent Company preferred complaints, dated 10.11.2018 and 15.11.2018, before the Police Station Anand Vihar, New Delhi, as well as Deputy Commissioner of Police (Annexure A-10). Thereafter Complaint Case bearing No. 5826 of 2018, titled as 'Asha Jain v. Dinesh Khaitan Ors.' (Annexure A-11) was preferred before the Court of Chief Metropolitan Magistrate, Karkardooma Court, New Delhi, which is pending adjudication. 15. A rejoinder to the reply has been filed by the Financial Creditors reiterating the submissions made in the petition and controverting the assertions in the reply. 16. We have heard learned counsel for the parties and have also perused the record. 17. Having heard learned counsel for the parties we are of the considered view that the Financial Creditor has succeeded in establishing a case for triggering the Corporate Insolvency Resolution Process. 18. In para 6 of the written, objections submitted by the respondent, a loan of ₹ 2,88,00,000/- paid by the petitioners in the year 2014, has been candidly admitted by it. It is not disputed by the Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Petitioners-Financial Creditors. The Code requires the adjudicating authority to only ascertain and record satisfaction in an adjudication under Section 7 of the Code as to the occurrence of default before admitting the petition. Besides in a petition under Section 7 of the Code, it does not matter that the debt is disputed so long as the debt is due and payable. 22. We further find that the provisions of Section 7 (2) and Section 7 (5) of IBC have been complied with as discussed in detail in our order, dated 27.11.2018, rendered in the case of ECL Finance Ltd. v. Digamber Buildcon (P.) Ltd. (IB-1039(PB) of 2018). 23. After a reading of Section 7 of the Code along with Rule 4 (2) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, we are satisfied that a default has occurred and the application under sub-section 2 of Section 7 is complete. The IRP proposed does not have any disciplinary proceedings pending against him. 24. As a sequel to the above discussion, this petition is admitted and Mr. Anil Tayal is appointed as an Interim Resolution Professional. 25. In pursuance of Section 13 (2) of the Code, we direct that Interim Insolvenc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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