TMI Blog2020 (8) TMI 382X X X X Extracts X X X X X X X X Extracts X X X X ..... r that the alleged forged letters were created in a single night for taking an illegal defense of dispute and the Corporate Debtor is liable to be tried for perjury can be pleaded / agitated before the Competent Forum. The 1st Respondent / Operational Creditor had accepted the payments of ₹ 4,51,84,594/- in respect of supplies and full and final payment of ₹ 12/- lakhs on 17.5.2017. No tangible / substantial material / evidence is produced on the side of the Appellant to show that it was a final payment in full quit and nothing remains to be paid by the 2nd Respondent/ Corporate Debtor. Therefore, this Tribunal negatives the plea of the matter had been settled and no sum remains to be paid by the 2nd Respondent / Corporate Debtor to the 1st Respondent/Operational Creditor other than the purported full and final payment of ₹ 12 lakhs made on 17.5.2017. Dishonor of Cheques - HELD THAT:- The 1st Respondent / Operational Creditor had initiated Proceedings under Section 138 of the N I Act, 1881 against the Corporate Debtor . Although, the Appellant has taken a plea that these cheques were issued by the Corporate Debtor for some other project and not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 30.09.2019 passed by the National Company Law Tribunal, ( NCLT ) Principal Bench, New Delhi, in admitting the Section 9 application filed by the 1st Respondent / Financial Creditor . 2. Earlier, the Adjudicating Authority ( NCLT ) while passing the impugned order on 30.09.2019 at paragraph 14 to 16 had observed the following: - 14. As per the invoices issued by the operational creditor from time to time with regard to supply of aluminum / M.S. Shuttering material to the Corporate Debtor it is proved beyond doubt that goods in terms of Section 5(21) of the Code were procured by the Corporate Debtor from the Operational Creditor on various occasions. It is patent from the perusal of the invoices and the delivery challans that the Corporate Debtor had acknowledged the receipt of goods from the petitioner firm. 15. For determination of the aforesaid issue it would be necessary to read the definition of the expression Operational Debt given in Section 5(21) of the Code and the same is set out below: - Section 5(21) (21) operational debt means a claim in respect of the provision of goods or services including employment or a debt in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was of no avail. Likewise, on 27.1.2017 another request was made and that the 1st Respondent neither cured the defect nor supplied fresh materials as requested in earlier correspondence. 6. The Learned Counsel for the Appellant proceeds to make a relevant mention that in spite of an existence of a pre-existing dispute, the 1st Respondent / Financial Creditor projected an application u/s 9 of I B Code claiming a sum of ₹ 62,06,786 as an outstanding sum. The grievance of the Appellant is that the said application was filed before the Adjudicating Authority despite the fact that Section 8(1) Demand Notice was not delivered to it and there was a pre-existing dispute in the matter. 7. The clear-cut stand of the Appellant is that no Demand Notice was delivered to the Appellant in terms of Section 8 of the Code and further that no Affidavit was filed as per Section 9(3)(b) of the Code . Apart from that, there exists dispute between the parties and no debt is due and payable. 8. According to the Appellant, the 1st Respondent / Operational Creditor had filed an application before the Adjudicating Authority by suppressing material facts and without disclosing that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Learned Counsel for the 1st Respondent brings to the notice of this Tribunal that the 2nd Respondent / Corporate Debtor after receipt of materials from the 1st Respondent / Operational Creditor had utilised the same for its project, viz. Misty Heights and issued one appreciation letter to the Operational Creditor for its goods and services and quality of materials and the said appreciation letter indicates that the Corporate Debtor was fully satisfied with the material and the business standard of the Operational Creditor . 15. The Learned Counsel for the 1st Respondent projects an argument that since October, 2015 and later, during the financial year 2016-2017 and as per Last Invoice till 23.05.2017, the Operational Creditor had supplied materials, goods etc. to the Corporate Debtor amounting to ₹ 5,21,91,380.72/- against which a payment of only ₹ 4,59,84,594/- was received from the Corporate Debtor . 16. The Learned Counsel for the 1st Respondent takes a stand that the 2nd Respondent / Corporate Debtor had relied on three years old forged and fabricated letters to raise the false ground of pre-existing dispute and this alleged forged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said notice was duly tendered by the postman for acceptance, but the same was refused to be received by the Corporate Debtor and as per decision of Hon ble Supreme Court in Gujarat Electricity Board and Ors. Vs. Atmaram Sungomal Poshani reported in AIR 1989 Supreme Court Page 1433 the service of notice was deemed to be a proper service upon the Corporate Debtor . 21. The Learned Counsel for the 1st Respondent contends that on earlier occasion, the 2nd Respondent / Corporate Debtor went into Insolvency and CIRP was issued against it and that the Corporate Debtor filed an Company Appeal(AT)(Ins.) No. 484/2018 before this Tribunal and raised an illegal defence of not receiving the Demand Notice and subsequently, settled the matter with the Operational Creditor . 22. In the Application before the Adjudicating Authority the 1st Respondent /Operational Creditor under Part- IV column the due amount from the 2nd Respondent /Corporate Debtor had mentioned as ₹ 61,24,637/- along with interest at 24% p.a. amounting to ₹ 22,04,870/-, in all a sum of ₹ 83,29,507/- 23. It is the stand of the 1st Respondent that it filed an additional affidavit statin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver physical possession to the Buyers. 28. The Resolution Professional of the 2nd Respondent / Corporate Debtor in its Affidavit dated 28.1.2020 had averred that from the preliminary documents received from the Appellant, it came to light that an outstanding sum of ₹ 4,63,00,000/- is due to the Corporate Debtor from M/s. Apex Heights Pvt. Ltd. based on a business loan given by the Corporate Debtor to it, in the year 2016. Further, out of a claim of ₹ 45,70,80,961/- filed by the Corporate Debtor during the initiation of CIRP of another Company Maple Realcon Pvt. Ltd. out of which only a meagre sum of ₹ 17,01,182/- was accepted and the balance was rejected by the Resolution Professional of Maple Realcon Pvt. Ltd. etc. 29. The grievance of the Resolution Professional / 2nd Respondent is that till date the Appellant, or the other members of the suspended management of the Corporate Debtor , has not provided the pertinent documents and information sought for, except the financial statement for the year 2018-19 and the tax audit reports. Furthermore, the suspended management of the Corporate Debtor had also failed to provide substantial data for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny Appeal) (AT)(Ins.) 452/2018 wherein it is stated as under:- All these disputes were raised by the respondent much prior to issuance of demand notice under Section 8(1) issued on 7th July, 2017. There is nothing on record to suggest any correctional measure was taken by the appellant. On the other hand, respondent pleaded before the Adjudicating Authority that there is an existence of dispute . 34. The Learned Counsel for the Appellant refers to the decision of Hon ble Supreme Court in Mobilox Innovations(P) Ltd. Vs. Kirusa Software (P) Ltd. (2018) 1 SCC Page 353 wherein at paragraph 42 observed as under:- 42. This being the case, is it not open to the adjudicating authority to then go into whether a dispute does or does not exist .We have already noticed that in the first Insolvency and Bankruptcy Bill, 2015 that was annexed to the Bankruptcy Law Reforms Committee Report, Section 5(4) defined dispute as meaning a bona fide suit or arbitration proceedings . . In its present avatar, Section 5(6) excludes the expression bona fide which is of significance. Therefore, it is difficult to import the expression bona fide into Section 8(2)(a) in order to judge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity that there was no change in the address of the Corporate Debtor in the Ministry of Corporate Affairs Record which also shows the same address. Even the Resolution passed by the Corporate Debtor on 27.03.2019 had shown the same Registered Office address. Therefore, the Adjudicating Authority had very rightly adverted to Section 27 of the General Clauses Act and Section 20 of the Companies Act, 2013 read with Rule 35 of the Companies (Incorporation) Rules, 2014 in and by which the service is to be effected on the Registered Office address and that process was carried out. Therefore, this Tribunal holds that it was Sufficient service of the Demand Notice . As such, the plea taken on behalf of the Appellant that there was no service affected upon the Corporate Debtor is not acceded to by this Tribunal. The other plea taken that there was no service by hand or electronic mail service to the Corporate Debtor relegates to the background and it pales into insignificance because of the fact that failure/omission to effect service by hand or electronic mail service is not fatal to the instant case. 38. As per Section 3 (23) (e) of the I B Code person includes Par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12 lakhs made on 17.5.2017. 42. In regard to the plea of dishonour of cheques amounting to ₹ 6 lakhs taken by the 1st Respondent / Operational Creditor , the contention of the Appellant is that the same was not taken as a plea by the 1st Respondent and as such the same is not to be accepted, it is to be relevantly pointed out if the Corporate Debtor had paid the full and final payment of ₹ 12 /- lakhs on 17.5.2017 and that the 1st Respondent / Operational Creditor has accepted the payment of ₹ 4,51,84,594/- against supplies, then there is no need or necessity for the Corporate Debtor to issue three cheques dated 22.11.2018 amounting to ₹ 6 /-lakhs to and in favour of the 1st Respondent / Operational Creditor which were dishonoured. In reality, the 1st Respondent / Operational Creditor had initiated Proceedings under Section 138 of the N I Act, 1881 against the Corporate Debtor . Although, the Appellant has taken a plea that these cheques were issued by the Corporate Debtor for some other project and not for the project concerning the subject matter in issue, the same is not established by the Appellant to the subjective satisfaction of thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Learned Counsel for the intervenors to lend support to his contention referred to the order dated 4.2.2020 passed by this Tribunal in Company Appeal (AT)(Ins.) No. 926/2019 Flat Buyers Association Winter Hills 77, Gurgaon Vs. Umang Realtech Pvt. Ltd. through IRP and others wherein at paragraph 21, 22 and 25, it is observed as under: OBSERVATIONS ON FINDINGS OF THIS APPELLATE TRIBUNAL: 21. In Corporate Insolvency Resolution Process against real estate, if allottees ( Financial Creditors) or Financial Institutions/ Banks (Other Financial Creditors) or Operational Creditors of one project initiated Corporate Insolvency Resolution Process against the Corporate Debtor (real estate company), it is confined to the particular project, it cannot affect any other project(s) of the same real estate company (Corporate Debtor) in other places where separate plan(s) are approved by different authorities, land and its owner may be different and mainly the allottees (financial creditors), financial institutions (financial creditors) operational creditors are different for such separate project. Therefore, all the asset of the company (Corporate Debtor) are not to be maximized. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... panies in the interest of the allottees and survival of the real estate companies and to ensure completion of projects which provides employment to large number of unorganised workmen. and prayed for allowing the application to secure the ends of justice. 47. At this juncture, this Tribunal, considering the facts and attendant circumstances of the present case which float on the surface opines that it is just and proper for the intervenors to take recourse before the Resolution Professional/ Competent Forum and to seek necessary reliefs for redressal of their grievances in accordance with Law. Viewed in that perspective the I.A. No. 426 / 2020 is not entertained and is closed. I.A. No. 3687/2019 (stay) is closed. 48. Before parting, this Tribunal, pellucidly makes it clear that the Resolution Professional of the 2nd Respondent/ Corporate Debtor while continuing/conducting the Corporate Insolvency Resolution Process of the Corporate Debtor can lay a claim before the Adjudicating Authority towards his fees and expenses incurred for the initiation of CIRP from 30.09.2019 onwards by filing necessary application if he so desires/advised. - - TaxTMI - TMITax - Insolvency & ..... X X X X Extracts X X X X X X X X Extracts X X X X
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