TMI Blog2020 (9) TMI 598X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.2019. Time Limitation - HELD THAT:- On perusal of the record, it is amply clear that amount so paid by the Respondent No. 2 has no time value of money by way of interest or repayable along with interest, as is also admitted by the Respondent No. 2 himself that the same is paid towards development and construction of the project and he has to get 25% from the net profit, as reflected in MOU and its various covenants/terms and conditions. Further, even if it is assumed that amount is paid as a loan, but admittedly it was paid in 2014 and as such is barred by limitation. The status of the Respondent No. 2 (Mr. Mukesh Desai) cannot be taken as Financial Creditor. Hence, the COC so constituted by the RP is void ab initio. Further, the Operational Creditor have liberty to file his application through RP and RP shall make all endeavour to file Form F.A., so filed by the Operational Creditor for withdrawal of the CIRP before this Adjudicating Authority - Application allowed. - IA 752 of 2019 in C.P. (I.B.) No. 178/NCLT/AHM/2018 - - - Dated:- 10-7-2020 - Manorama Kumari, Member (J) For the Appellant/Respondent : Dhiren Dave, PCS, Pratik Thakkar, Vishal Dave, Advocates and V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ived by the RP in response to the advertisement issued as per the IB Code, as all the creditors are aware that Company has huge assets and financially capable to repay the entire debt of the Company. 4) The Applicant further alleged that the Company is based at Gujarat and all the parties are also based at Surat, Gujarat, such as, Suspended Management as well as Mr. Mukesh Desai but the RP continued to convene the meeting at Ahmedabad instead of Surat, which cost inconvenience to the Applicant. Not only that, the IRP is also charging a some of ₹ 10,000/- as a local travelling expenses, which is too exorbitant and is not justifiable. 5) Further, in support of the contention, the Applicant annexed the Annexure-E, which is the reply of public notice, wherein, it is clarified that Mr. Mukeshbhai Nanubhai Desai is having an ownership of 25% shares in the land meant for a project named as Coconut , wherein, Mr. Mukeshbhai Nanubhai Desai said to have paid an amount of ₹ 12,57,42,071/- towards 25% of ownership. In the said notice, it is categorically stated that it was understanding that Castle Construction, partnership firm had to transferred amount paid to them in M/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lopers Pvt. Ltd. towards construction of said project upto sample flat in the said project. It is also covenanted that, after completion of the construction, whatever income earned from the flat purchasers, deduct price of land, construction cost, brokerage, corporation expenses, service tax Vat, Income Tax and all other expenses, whatever amount (net profit) remain, its 25% shall be paid to party of the second party by party of the first part towards profit (sic) 13) Thus, on perusal of the MOU, it is clear that the Respondent No. 2 is only entitled for 25% of the net profit of the project. That apart, as per MOU, both sides agreed that in case of any dispute, the matter shall be resolved by the arbitration. It is also a matter of record that as per Annexure-E, page No. 59 of the Application i.e. reply of public notice given for title clearance, wherein, Mr. Mukeshbhai Nanubhai Desai has been shown as having ownership of 25% share in the Coconut project and to that effect MOU has been executed. 14) On perusal of the record, i.e. page No. 44 of the Application, Notes on Accounts for the Year Ended March 31, 2019 , the term loan of Mr. Mukeshbhai Nanubhai Desai is shown as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 30-A, sub clause 4 and 5 of IBBI regulations on CIRP prescribes procedure to call for COC meeting and take approval of at least 90% voting and then upon approval to move application. To comply with the above requirement, RP asked FC whether he consents to withdraw CIRP proceeding. FC declined to withdraw and hence following resolution was passed by COC. Resolved that CIRP process shall not be withdrawn but will be continued. Thus, it is evident that withdrawal application is filed by an Operational Creditor and the issue was already discussed but the Respondent No. 2, who as on 01.05.2020, though not declared by this Adjudicating Authority as a Financial Creditor, has not consented to withdraw the Application claiming himself to be a sole Financial Creditor, which said fact is in the knowledge of the RP as he has received the copy of the instant application and has also filed reply but have also not apprised this Adjudicating Authority, which is not expected. 19) It is also evident and a matter of record that public announcement has been made but not a single claimant has put forward their claim before the RP. Under such situation it can be presumed that the Corpor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t issued by a bank or financial institution; i. the amount of any liability in respect of any of the guarantee or indemnity for any of the items referred to in sub-clauses (a) to (h) of this clause; 22) Further in the matter of Saregama India Ltd. vs. Home Movie Makers Pvt. Ltd., the Hon'ble NCLAT observed as under: By relying on the aforesaid Judgment of this Appellate Tribunal, we are of the view that the Appellant, who claims to be a Financial Creditor, however, claims made by it, is not a Financial Debt, it is reiterated that in the marketing agreements and subsequent correspondent exchanged between the Appellant and the Respondent, no way it is mentioned that the amount paid by the Appellant to be repayable along with interest over a period of time in a single or series of payments in future. However, we are of the firm opinion that the Appellant has not disbursed money against the consideration for the time value. Accordingly, we hold that the claim of the Appellant is not a Financial Debt within the meaning of Section 5(8) of IBC. 23) On perusal of the record, it is amply clear that amount so paid by the Respondent No. 2 has no time value of money by wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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