TMI Blog2020 (2) TMI 1078X X X X Extracts X X X X X X X X Extracts X X X X ..... urchase Facility or issue of Bonds, Debentures, loan stock etc. d) The amount does not arise of any liability in respect of hire purchase contract, or lease or any other instrument to suggest that the Appellant is deemed as finance or capital lease. e) The amount has not been raised under any other transaction including any forward sale or purchase agreement having the commercial effect of borrowing. f) It is not the amount of any derivatives transaction entered into. g) The amount is not against any counter indemnity. h) It is not the amount of any liability in respect of any guarantee. In view of the aforesaid position of fact and there being a disputed question of fact relating to payment of amount for the purpose, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Debtor ). Genesis Management Consultancy Services Private Limited and the Corporate Debtor entered into agreement dated 6th December, 2016 whereby the Corporate Debtor sought advisory and other services from the Appellant s Company. The said agreement was executed between Managing Director of the Corporate Debtor and the C.E.O. of Genesis Management Consultancy Services Private Limited where the Appellant represented and put his signature in the capacity of C.E.O. Relevant clause no.3 regarding the professional fees for the aforesaid advisory agreed between the parties reads as follows: 3. PROFESSIONAL FEES Medinn Belle or promoters of Medinn Belle will pay Genesis Fees which will be charged on success basis whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isition, Piramal requires Medinn to acquire an infringing trademark called NPD Endura Mass . In order to pay for this consideration towards acquisition of NPD Endura Mass, Medinn is falling short of the liquid funds required and requires some external funding support. Therefore, Medinn through its directors has requested Mahesh to lend them a sum of ₹ 1.7 cr. (one crore seven lakhs only). Mahesh has agreed to lend to Medinn a sum of INR 1.7 cr. (one crore seven lakh only) for a very short term. These funds are agreed by Medinn to be returned at the earliest as soon as 1) either the deal is consummated with Piramal or 2) Medinn will generate other funds to return the money to Mahesh within 3 months. It is further a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndorsement of exceeds arrangement . Only thereafter a legal demand notice under Section 138 of Negotiable Instrument Act was issued by the Appellant on 28th April, 2018 which is pending in the Court of Metropolitan Magistrate at Esplande, Mumbai. 6. The stand of the Corporate Debtor is that the manufacturer of famous brand Endura Mass since 1st February, 2001. In August, 2009, it came to its knowledge that there is one product with deceptively similar trade mark NPD Endura Mass being sold in the market and Mr. Sanjay Kumar Chetwani is a key person behind this mischief. The Respondent had filed a police complaint to that effect against Mr. Sanjay Kumar Chetwani including two others. 7. The Respondent- Corporate Debtor neve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clear said dispute with Mr. Chetwani, Piramal discussed with the Appellant. The Appellant with the collusion of Mr. Chetwani and Mrs. Sonia Sanjay Chetwani, who was indulged in a firm namely M/s. NPD Health Care with a product TM NPD Endura Mass in a pre-planned manner met with the Respondent. In said sitting they stated that Piramal wants that the Respondent should purchase trade mark NPD Endura Mass which is a pre-condition of Piramal. As a part of said deal both the aforesaid cases i.e. Civil Suit filed by Mr. Chetwani and FIR lodged by the Respondent was to withdraw. In the said deal, the Respondent paid a handsome amount to purchase trade mark namely NPD Endura Mass to Mr. Chetwani. In the entire deal with Mr. Chetwani and Mrs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant is deemed as finance or capital lease. e) The amount has not been raised under any other transaction including any forward sale or purchase agreement having the commercial effect of borrowing. f) It is not the amount of any derivatives transaction entered into. g) The amount is not against any counter indemnity. h) It is not the amount of any liability in respect of any guarantee. 13. In view of the aforesaid position of fact and there being a disputed question of fact relating to payment of amount for the purpose as discussed above, we find no ground to interfere with the decision of the Adjudicating Authority (National Company Law Tribunal), Principal Bench, New Delhi. In absence of any merit, the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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