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TMI Blog2020 (7) TMI 558X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 passed in IB-28/ND/2018 passed by Adjudicating Authority, National Company Law Tribunal, New Delhi, Bench III, vide which the Adjudicating Authority dismissed the Application under Section 7 of the Insolvency and Bankruptcy Code, 2016 (I&B Code in Short) which was filed by the Appellant. 2. It has been argued and it is the Case of the Appellant that on 30th May, 2018 a Memo of Understanding (MoU) was executed between the Parties. The said document is at Annexure 2 (Colly) Page 50. As per this 'MoU', the Appellant gave a loan of Rs. 50 Lakhs by cheque dated 01.06.2013 to the Respondent/Corporate Debtor for 12 months with monthly interest of 2 %. The loan was given for a period of 12 months. The Respondent issued post dated cheques for nex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claims that then notice dated 27.10.2017 (Page 189) was sent but the same was also not replied. 5. The appellant claims that there was debt due and there was default and hence Application under Section 7 was filed on 4th January, 2018. 6. On behalf of the Respondent, the case put up before the Adjudicating Authority as per the reply (Page 234) and which is argued in Appeal also is that the Appellant suppressed material facts in the Application under Section 7 of Insolvency and Bankruptcy Code, 2016. Respondent claims that the Appellant had entered into an Agreement dated 01.10.2016 (Page 263) whereby the Respondent agreed to transfer the property bearing No. K-708, 7TH Floor in Block No. K-1, Crossing Republic, Sector 6 in NH 24, Gaziabad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t has continuously communicated and offered possession of the said premises to the Appellant. Letter dated 7th March 2018 (Page 290) is pointed out by the Respondent as the document by which possession was offered to the Appellant. Respondent Claims that the Agreement dated 01st October, 2016 is substituted mode of performance of contract and repayment of principle amount by way of transfer of property which was agreed upon. 7. In a transaction of loan, Parties may agree to convert the relationship into that of Builder Buyer. Nothing prohibits the Parties. The latest admitted document between the Parties is the Agreement Dated 01.10.2016 as of Buyer-Seller. In an Application under Section 7 of Insolvency and Bankruptcy Code, 2016 it is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lculated the period of 12 months and grace period of 180 days to find that the possession had been offered within given time. The Adjudicating Authority, held that the Application under Section 7 was filed on 4th January, 2018 which was much before the period of 12 months plus 180 days as stated in the Agreement dated 01.10.2016 and thus observed that it was premature petition and dismissed the same. 10. The Appellant claims that during the pendency of proceeding under Section 7 of Insolvency and Bankruptcy Code, 2016, the Director of the Respondent had entered into settlement, copy of which has been filed at Annexure - 4A (Page 91) and offered two Cheques. One Cheque was of Rs. 25 lakhs and another was of Rs. 45 lakhs. The Cheque of Rs. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt as seen in the Builder Buyer Agreement dated 1st October, 2016. No doubt, in the primary stage, after the 'MoU' dated 30th May, 2013 two Buyer/Seller Agreements dated 03.06.2013 were executed but then that arrangement appears to have been given up when Parties entered into further three fresh 'MoU's dated 01.06.2014, 01.06.2015 and 01.06.2016 referring to earlier Cheque of loan dated 01.06.2013. In these circumstances, where record shows the latest arrangement between the Parties of Builder Buyer Agreement dated 01.10.2016 and even possession has been offered on 7th March, 2018 (Page 290), which cannot be said to be beyond the period stipulated in the Agreement, we do not find any reason to admit the Application under Section 7 as was f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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