9911796707
TMI Blog2019 (5) TMI 1841X X X X Extracts X X X X X X X X Extracts X X X X ..... follows: (1) M/s.Posterscope Outdoor Advertising Private Limited ('Applicant/Petitioner/Operational Creditor') is a Company incorporated under the provisions of Companies Act and having its registered office at 6th Floor, B-Wing, Poonam Chambers, Dr.Anne Besant Road, Worli, Mumbai-400018. The Company is engaged in the business of providing advertising and allied services including display on hoardings and printing, maintaining and replacing of flex hoardings, etc. (2) M/s. Nitesh Housing Developers Private Limited is a Company incorporated on 04.12.2007 under the provisions of Companies Act, 1956 with CIN: U45201KA2007PTC044553. The Authorised Share Capital of the Company is Rs. 10,00,00,000/- (Rupees Ten Crores Only) and Paid-up Share Capital of the Company is Rs. 9,15,00,000/- (Rupees Nine Crores and Fifteen Lakhs Only). The Company is engaged in the business of development, maintenance and sale of residential and commercial real estate in India. (3) M/s.Nitesh Estates Limited and M/s. Nitesh Residency Hotels Private Limited ('Sister Concerns') are Sister Concerns of the Corporate Debtor engaged in a similar business. The Corporate Debtor and its Sister Con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raw the representations made by it to the Associations. Moreover, in the Settlement Agreement, the Corporate Debtor and its Sister Concerns acknowledged and undertook to pay amounts in the following manner: a. Rs. 35,00,000/- (Rupees Thirty Five Lakhs Only) at the time of execution of the Settlement Agreement; b. Rs. 30,00,000/- (Rupees Thirty Lakhs Only) payable within 6 months of the date of execution of the Settlement Agreement with the Corporate Debtor undertaking to pay Rs. 10,00,000/- (Rupees Ten Lakhs Only) in two equal instalments and the other two Sister Concerns each undertaking to pay Rs. 10,00,000/- (Rupees Ten Lakhs Only) in two equal instalments. (6) In accordance with the terms of the Settlement Agreement, Applicant withdrew its representations made to the Associations. Nitesh Estates Ltd. withdrew the winding-up proceedings against Applicant and the same was recorded vide order dated 15.12.2016 in CP No.266/16. The Corporate Debtor and its Sister Concerns only paid a sum of Rs. 35,00,000/- (Rupees Thirty Five Lakhs Only) to the Applicant. (7) However, thereafter, the Corporate Debtor and its Sister Concerns have failed to make any payments towards the balanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arly and explicitly falls within the definition of an operational debtor and winding-up proceedings can be instituted against it. Further, Applicant provided the services to the Corporate Debtor's specifications and to the satisfaction of the Corporate Debtor. The Corporate Debtor, in order to illicitly escape its liability to pay for services it received, asserted that the services were substandard to concoct a reason to terminate the services and institute the winding-up proceedings against Applicant as a mechanism to arm-twist Applicant to settle its claims for a lesser amount. Moreover, with respect to the winding-up proceedings, the same came to be settled and the Settlement Agreement came to be executed to that effect. In the Settlement Agreement, the Corporate Debtor acknowledges that Applicant had provided services and that monies were due from it to Applicant. In the Settlement Agreement, the Corporate Debtor undertook to pay the amount of Rs. 10,00,000/- to Applicant within six months of its execution, which it has failed to do. The debt stems from the Settlement Agreement and the false and fictitious narration of events in the reply preceding the Settlement Agreement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of dues arising under any law for the time being in force and payable to Central Government, any State Government or any local authority. The Petitioner does not fall within the definition of operational creditor as defined in the Act since the amount being claimed is not a debt as defined in the Act. (6) It is also stated that the amount claimed by the Petitioner is in respect to the Settlement Agreement doesn't comes under the purview of operational debt since the same has arisen out of a Settlement between M/s. Nitesh Estates Ltd. and M/s. Posterscope Outdoor Advertising Pvt. Ltd. and the Respondent Company is not involved in the said Agreement and therefore amount due from a Settlement Agreement cannot be deemed as an Operational Debt, and therefore only on this ground the Petition is liable to be dismissed in limine. (7) The Settlement with which the Petitioner has come before this Court has not been signed by M/s. Nitesh Housing Developers Pvt. Ltd. Though it is alleged by the Petitioner that Nitesh Estates Ltd. has signed the Settlement Agreement on behalf of the Respondent, the Respondent has not given any authorization or consent by way of a Board Resolution towa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore, the Petitioner was duty bound to issue a fresh notice claiming an amount of Rs. 5,00,000/- (Rupees Five Lakhs Only) which was not done. The Petitioner has not served a demand notice as per Section 8 of the Code to the Respondent with regard to the actual amount that is now outstanding which is Rs. 5,00,000/-. Hence, on this ground alone the Petition deserves to be dismissed. (12) It is also stated that even if considered for argument sake though not payable, the claim under demand notice dated 17.07.2018 is Principal of Rs. 10,00,000/- and interest of Rs. 15,000/- totalling to Rs. 10,15,000/-; whereas the amount alleged in the Petition is Principal amount is Rs. 5,00,000/- and the interest is Rs. 1,57,500/- totalling to Rs. 6,57,500/-. There is difference of Rs. 1,40,000/- approx. in the interest amount just within the span of two months and the same is not at all payable. (13) It is further stated that the Petition is filed by the Petitioner is signed by the Counsel for the Petitioner which is not as per the requirement of the law. Further the Petition filed by the Petitioner is not supported and verified on oath by verifying Affidavit as required under law. Such as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion under Section 9(5)(2)(d) if notice of dispute has been received by the Petitioner or there was a record of dispute in the information utility. (18) It is stated that the Petition filed by the Petitioner is a faulty and cannot be processed with since the claim amount under Demand Notice varies from the claim amount under the Petition. That the claim in the notice annexed in their Petition shows the amount as Rs. 10,15,000/-, whereas in the Petition the amount has been shown as Rs. 6,57,500/-. The Petition needs to be dismissed since the amount claimed in the statutory notice and the Petition do not match. (19) The Respondent further states that on receipt of the notice dated 17.07.2017, due to the negligence of the employee of the Respondent, some amount has been paid to the Petitioner wrongfully. In fact, the amount is not at all payable by the Respondents since the Board of Directors had not authorised the payment to the Petitioner. In fact, the Respondent is entitled to get the refund of the amount wrongfully paid, to which the Respondent reserves the right to file a recovery suit before the Trial Court. (20) It is also stated that this application has been filed with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Settlement Agreement itself has not contemplated payment of interest on delayed payments, the Petitioner cannot seek payment of interest at all. Hence, the Petition itself needs to be dismissed on the ground that the claim amount which includes interest being claimed itself is also in dispute. (25) It is stated that the original claim before the Bombay High Court itself was in dispute. That the winding up Petition was originally initiated by the Respondent herein before the Bombay High Court and that since the claims of the Respondent in that winding up matter was against the interest of the Petitioner they agreed to settle the dispute by way of a Settlement Agreement by payment of Rs. 65,00,000/-. This Petition filed by the Petitioner is a counter blast to the same through which the Petitioner is seeking to extract monies by the threat of IBC, 2016 admission which has serious ramifications for the future of the Respondent Company and its survival would be at stake. 4. Heard Ms.Sahana Devanathan, learned Counsel for the Applicant and Shri Uday Shankar, learned Counsel for the Respondent. I have carefully perused the pleadings of the parties and the extant provisions of the Code ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement as did not talk about the payment of any interest for failure to pay outstanding installments. The petitioner failed to make out a case that the Respondent is insolvent and the other hand the Respondents has asserted that there are about 500 employees directly/indirectly depending on it. And the Company runs the now Famous 'Ritz Cariton hotel on Residency Road, which is an iconic brand in Bengaluru. As stated supra, a winding up petition was filed against the petitioner. 8. It is settled position of law that provisions of Code cannot be invoked for recovery of outstanding amount but it can be invoked to initiate CIRP for justified reasons as per the Code. The Hon'ble Supreme Court in the case of Mobilox Innovations Private Limited Vs. Kirusa Software Private Limited (2018)1 SCC 353, has inter alia, held that IBC, 2016 is not intended to be substitute to a recovery forum. In another latest judgement rendered in Transmission Corporation of A.P. Ltd. Vs. Equipment Conductors and Cables Ltd., (CA No.9597 of 2018) dated 23rd October, 2018, (2018) 147 CLA 112 (SC) Supreme Court of India, it is, inter alia, held that existence of undisputed debt is sine qua non of initiatin ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
