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TMI Blog2020 (4) TMI 703X X X X Extracts X X X X X X X X Extracts X X X X ..... ;ble Tribunal may deem fit in the interest of justice. 2. The brief facts of the case are as under: 2.1 Applicant claim to have paid Rs. 2 crores as earnest money towards the purchase of land of the Corporate Debtor. To that effect, the Applicant has filed proof of RTGS as well as account transfer receipt. It is submitted by the Applicant that in response to the advertisement made by the IRP, that he has submitted his claim as per prescribed Form-F i.e. submission of claim by the creditor (other than Financial Creditor and Operational Creditor) under regulation 9-A of the Insolvency & Bankruptcy Board of India (Insolvency Regulation Process of Corporate Person) Regulation, 2016 vide application dated 21.05.2019, being unaware of the technicalities of Law. 2.2 It is further submitted that the Applicant later-on realizing that the Applicant's claim falls under the provision of regulation-8 of the Insolvency & Bankruptcy Board of India (Insolvency Regulation Process of Corporate Person) Regulation, 2016 and subsequently, revised his claim by filing the prescribed "Form-C" i.e. submission of claim by Financial Creditor under the regulation-8 of the Insolvency & Bankruptcy Boar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cord, 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 a letter dated 27.02.2019 as Annexure-B purported to be issued in the name of Corporate Debtor and E-receipt of transfer of funds showing transfer of the amount in the account of beneficiary viz. Digjam Ltd. (Corporate Debtor). 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 of assets of Corporate Debtor. 5. Further, one document i.e. Annexure-B at Page No. 12 dated 27.02.2019 claimed to be issued in the name of Digjam Ltd. by the Applicant with regard to the offer/proposal for purchase of surplus land available at Mills Premises in Jamnagar of the Corporate Debtor. In the said offer, there are as many as 4 conditions. For the sake of convenience, those conditions are reproduced herein below; -Rate: Rs. 2,25,00,000/- (Rupees Two Crores Twenty-Five Lakhs only) per acre, plus value for building and other assets, for land area approximately 10 Acres together with structures thereon on "as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r and acceptance of an offer must be absolute without giving any room of doubt. 8. 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. 9. Applicant in this case totally failed to produce any document 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 27.02.2019 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. 10. Further to consider as 'financial creditor', we need to look at the definition of "Financial Creditor" as claimed by the Applicant, by subsequently filing the revised Form, which is reproduced herein below; "Section 5(7) "Financial Creditor" means any person to whom a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ailed to produce any documents/purchase agreement to substantiate his claim and/or show his bona flde as 'financial debt' so as to stand in the footing of "Financial Creditor". 12. Not only this, there is also shadow of doubt on Annexure-B i.e. letter dated 27-2-2019 of the applicant upon which total claim is based as the claimant failed to produce proof of dispatch, claiming that applicant has paid the amount against the land of the Corporate Debtor as earnest money, the claim cannot be accepted in absence of any acceptance from the side of Corporate Debtor, so as to term it as valid contract. It maybe presumed to be a manufactured document as the applicant has failed to show his bona fide. Under such circumstances, his claim as other stakeholders is/are also clouded and needs thorough verification by RP. 13. The Applicant in the application pleaded that the amount is paid as earnest money. Basically, earnest money serves two purposes: it remains as a security or earnest 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, su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e name of an unregistered proprietorship firm and the said suit is to be instituted in the name of proprietor" 16. Thus, a proprietorship firm is not a legal entity - it is only the proprietor of the firm who is a legal entity and as such the petition should have been filed by the sole proprietor in his name on behalf of his sole proprietorship firm. 17. Section 3 of sub-section (23) speaks about the definition of a person which read as under: - "person" includes; (a) An individual; (b) A Hindu undivided family; (c) A company; (d) A trust; (e) A partnership; (f) A limited liability partnership; and (g) Any other entity established under a statute, and includes a person resident outside India 18. That apart, the documents so relied and/or annexed are not duly certified by the authorised representative or advocate filing the petition or application and further, documents so relied and/or annexed shall be duly verified from the original as per rule 23(2) of NCLT Rules 2016. 19. Under such circumstances, G. K. Ganapathy Reddy and Associates cannot issue any authority letter. In view of that also the Application is bad in eye of law. 20. Again, on perusal of the rec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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