9911796707
TMI Blog2019 (9) TMI 1423X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst the Corporate Debtor herein vide order dated 11.04.2019 passed by this Adjudicating Authority. Since the Applicant herein had a claim against the Corporate Debtor, he approached the Resolution Professional and filed his claim in Form-F as required under the Code and allied Rules. (2) It is stated that the Applicant/Claimant holds 10,00,000 fully paid 11% redeemable optionally convertible cumulative shares of the Corporate Debtor. The Corporate Debtor had specifically agreed and undertaken to pay Dividend at a fixed rate of 11% on the said shares. (3) It is stated that towards the payment of the dividend for the period of three years from 06.07.2012 to 05.07.2015 and interest at 24% thereon for delay in payment of the same, the Corporate Debtor had issued a cheque for Rs. 36,58,000/- dated 19.12.2012 and the said cheque was dishonoured and returned with an endorsement 'Funds Insufficient'. (4) It is further stated that the Applicant herein issued a legal notice dated 21.12.2012 to the Corporate Debtor and its Directors under Section 138 of the Negotiable Instruments Act, 1881. The Corporate Debtor did not make any payment in furtherance of the Notice. Thereafter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Applicant. The RP ought to have appreciated that the Applicant is not in control of the Balance Sheet of the Corporate Debtor since it is an internal affair of the Management of any Company and no outsider has to say whatsoever in the same. The RP ought to have taken the claim of the Applicant into consideration based on the Share Certificate and other documents like the cheque and the legal notice. The Applicant has submitted a copy of complaint filed by ROC-Karnataka against the Company and its Directors for maintaining false and improper books of accounts, which ought to have been taken into consideration and appreciating that the Balance Sheet of the Company is fabricated and cannot be relied upon to ascertain the claim. The RP failed to appreciate that the Corporate Debtor has not maintained true and proper books of account and hence not recorded the issuance of preference shares issued under the Share Certificate. (11) It is further stated that the RP also erred in not appreciating that the Debtor company issued a cheque in favour of the Applicant for a sum of Rs. 36,58,600/- towards the payment of the committed dividend at 11% accrued in the hands of the Company, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said two cheques were dishonored with an endorsement 'Funds Insufficient'. Since the Corporate Debtor failed to make the payment, the claimant filed a Complaint before the Ltd. Magistrate in PCR No. 45508 of 2010 which was registered as C.C. No. 905 of 2011 against the Corporate Debtor and its Directors and the same is pending till date. (4) The Corporate Debtor on 22.12.2011 appeared before the Court of the Lok Adalat and settled the matter for cheque amount. (5) The cheques given on 30.01.2012 in furtherance of the Lok Adalat order dated 22.12.2011 were also dishonored with an endorsement 'Funds Insufficient'. The Corporate Debtor vide letter dated 27.07.2012 requested not to proceed with presenting of the two cheques given in furtherance of a settlement and requested the Claimant to take part payment and sought further time for remaining payment. (6) The Corporate Debtor failed to make any further payment and the claimant filed a Petition for winding up the Company before the Hon'ble High Court of Karnataka in Com. Pet. No. 151 of 2012 and in view of IRP being appointed the Petition is liable to be stayed by moratorium. (7) The Execution Petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ooks of accounts for the purpose of Income Tax Returns duly certified by Applicant's Tax Auditor. e. Copy of all correspondences regarding the matter with Innovative. (14) It is stated that the RP has not given any reason to reject the documentary proof produced by the Claimant and the admissions of the Corporate Debtor and the prescribed law of presumptions under Section 118 and 139 of the NI Act and the law enacted under Section 58 of the Indian Evidence Act and the law declared by the Hon'ble Supreme Court and this clearly establishes that the RP has colluded with the debtor Company and is biased against the Claimant. (15) It is also stated that the RP erred in rejecting the claim on the ground that the Claimant has not produced the additional documents summoned by him, without giving any reasons as to why the documents produced along with the claim are insufficient to prove the claim due by the Corporate Debtor. (16) It is stated that the RP has erred in not appreciating that the Corporate Debtor towards its admitted liability initially issued two cheques produced along with the bank memo of dishonor towards repayment of the loan and interest in favour of the Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... O.S. No. 4246/2016 informing the Hon'ble City Civil Court, Bengaluru of the moratorium and calling upon the Applicant herein to make this claim before RP in this Petition. (6) It is also stated that on 14.02.2019, the ROC filed a complaint against the Corporate Debtor and its Directors before the Hon'ble City Civil and Sessions Judge at Bangalore in PCR No. 9/19 registered as SPL.CC No. 404/2019 for the commission of offences of concocting false, fictitious and bogus entries in the books of account of the Company. (7) Despite providing all the documentation and the fact that claim of the Applicant herein is stayed by Moratorium due to the CIRP initiated against the Corporate Debtor, which is otherwise pending in OS No. 4246 of 2016 on the files of the City Civil Judge, CCH-76, Bengaluru and that the claim of the Applicant has been supported not just by pending proceeding in Civil Court but also vide a Cheque being issued in discharge of the liability, it would amount to grave to miscarriage of justice against the Applicant if the claim is not considered. (8) A perusal of Sections 118 and 139 of the Negotiable Instrument Act, 1881 provides that when a cheque is issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es which constitutes a presumption in so far as legal liability and further the RP failed to apply mandatory, statutory presumption under Sections 118 and 139 of Negotiable Instrument Act, 1881. (14) It is also stated that The RP erred in not appreciating that the MOU clearly evidences the commitment of the Corporate Debtor and that the Corporate Debtor collected the amount of Rs. 20,00,000/- from the Applicant herein under the MOU and the RP ought to have admitted the claim of the Applicant by taking into consideration based on other documents like the cheque and the legal notice. (15) The RP ought not to have ignored the complaint filed by the ROC, Karnataka, filed against the Company and its Directors for maintaining false and improper books of accounts. (16) The RP ought to have accepted the claim and present it before the CoC for CIRP. The RP extended his powers under the Code and rejected the claim outright without giving opportunity to place the claim before CoC. (17) The RP ought to have considered that the Corporate Debtor has filed the Memo dated 13.06.209 in OS No. 4246 of 2016 informing the moratorium dated 11.04.2019 whereby the proceeding in the suit have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the aforementioned amount and is hence liable to be dismissed. 8. As far as LA. No. 431 of 2019 is concerned, it is observed that the Resolution Professional has communicated to the Applicant vide his letter Ref: IP/IS/2019-20/OC-09 dated 14.07.2019 (as per the document produced as Document No. 2 along with the application) to provide certain documents to consider his claim. As per the letter of the learned RP it seems that the Applicant has not submitted the necessary documents as sought by the RP. However, the RP has also not countered the various issues raised by the Applicant by filing his statement of objections. It is stated that Applicant paid an advance of Rs. 20,00,000/- on 29.03.2006 under a Memorandum of Understanding dated 13.03.2009 and that the Corporate Debtor gave a cheque for an amount of Rs. 70,00,000/- dated 17.07.2013 towards payment of damages for delay of seven years which was dishonoured. Original Suit is said to be pending before the Hon'ble Civil Court at Bengaluru and criminal cases have also been filed against the Corporate Debtor and its Director. It is seen that the Applicant on page 8 of his application has admitted that no right, title or int ..... X X X X Extracts X X X X X X X X Extracts X X X X
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