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TMI Blog2019 (9) TMI 1361X X X X Extracts X X X X X X X X Extracts X X X X ..... February 15, 2019. The application is filed by Mr. Rakesh Aggarwal, authorised representative of the applicant, duly authorised by a resolution dated February 27, 2019 passed by Mridu Hari Dalmia Parivar Trust. The applicant and the respondent entered into a memorandum of understanding dated April 4, 2016 in respect of construction of a commercial project by the name of "Lokhandwala Business Bay" situated at Kurla Andheri Road, Mumbai. The respondent sought to avail of financial facilities from the applicant by selling the entire area comprised of the second and third floors in the said project, with a right to buy-back the said floors after a period of 24 months but before the expiry of 36 months from the date of advance. Copy of the memorandum of understanding dated April 4, 2016 is annexed to the application. 3. The applicant submits that the total consideration for buying the said floors was Rs. 41,16,96,000 (rupees forty one crore sixteen lakh ninety six thousand only) out of which the applicant agreed to disburse an amount of Rs. 25,00,00,000 (rupees twenty-five crores only) as advance with an obligation to pay the balance amount at the time of taking possession of the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licant also issued notice dated July 16, 2018 under section 138 of the Negotiable Instruments Act, 1881 to the respondent and its directors. Copy of notice dated July 16, 2018 and copy of the cheque return memo dated July 6, 2018 is annexed to the application. 10. The corporate debtor in its affidavit-in-reply contends that although there is a put option under the buy-back agreement, the applicant has initiated insolvency proceedings whereas the applicant is under an obligation to exhaust the put option. Further, it is the contention of the respondent that the applicant is charging an interest of 21 per cent. per annum along with 3 per cent. interest per month for delayed payment which corresponds to 36 per cent. per annum which is unjustified. 11. The applicant in its rejoinder has rebutted the contention that 21 per cent. interest has been charged in accordance with the memorandum of understanding and 3 per cent. interest has been charged per month under the buy-back agreement and that there is no bar for the applicant to initiate insolvency proceedings although there is a "put option" available to the applicant. 12. We have heard the parties and perused the records. 13. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sagar Lokhandwala and Moiz Mohammed Lokhandwala and demanding the amount in default, the notice dated August 8, 2018 issued to Lokhandwala Kataria Construction P. Ltd., invoking corporate guarantee. Copies of the abovementioned notices are annexed to the application. 18. The respondent's reply in e-mail dated May 9, 2018 admitting to the default is also annexed to the application. The copies of the bank return memos dated April 16, 2018, July 6, 2018 and October 5, 2018 for the dishonoured cheques issued by the respondent are also annexed to the application. 19. The respondent has nowhere raised a contention that it did not receive any amount as stated in the application. The debt has been admitted by way of its reply in e-mail dated May 9, 2018. The respondent has only raised contentions that even though there is put option under the buy-back agreement, the applicant has initiated insolvency proceedings and states that the applicant is under an obligation to exhaust the put option. Further, it is the contention of the respondent that the applicant is charging interest of 21 per cent. per annum along with 3 per cent. interest per month which is unjustified. 20. The responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... porate debtor has been established and the application deserves to be admitted. 24. The applicant has proposed the name of Mr. Ajit Kumar, a registered insolvency resolution professional having Registration Number (IBBI/IPA003/IP-N00062/2017-18/10548) as interim resolution professional, to carry out the functions as mentioned under the I and B Code and given his declaration ; no disciplinary proceedings are pending against him. 25. The application under sub-section (2) of section 7 of the I and B Code, 2016 is complete. The existence of financial debt of more than rupees one lakh against the corporate debtor and its default is also proved. Accordingly, the application filed under section 7 of the Insolvency and Bankruptcy Code for the initiation of corporate insolvency resolution process against the corporate debtor deserves to be admitted. Order This application filed under section 7 of the I and B Code, 2016, filed by Dalmia Group Holdings, proprietorship of Mridu Hari Dalmia Parivar Trust, financial creditor/applicant, against Lokhandwala Infrastructure Private Limited, corporate debtor for initiating corporate insolvency resolution process is at this moment admitted. We fur ..... X X X X Extracts X X X X X X X X Extracts X X X X
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