TMI Blog2021 (1) TMI 110X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 7(4) of the I B Code on 21.01.2020 is not barred by limitation - Objection of the Corporate Debtor regarding the validity of Share Purchase Agreement due to non -registration is not under our jurisdiction. Hence, the Tribunal need not delve into that issue. Further, the objection of the Corporate Debtor regarding there being no common seal of the company and hence the said agreement is invalid document, even assuming without a common seal of the company the Managing Directors agreed into an agreement, the Company is liable for the acts committed by its directors and is bound to honour the agreement entered by the Directors on behalf of the Company. This Application is filed by the applicant for alleged breach of Share Purchase Agreement dated 21.11.2012. Corporate Debtor failed to honour the share purchase Agreement, and no payment was made - ince the present debt arises out of the Share Purchase agreement dated 21.11.2012, the said amount is a debt disbursed against the consideration for advance payment as per the agreement and hence is covered under the definition of financial debt and Applicant will be treated as Financial Creditor. Application on behalf of Financi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed to payback the advance paid by Financial Creditor. 4. The Financial Creditor submitted that the unpaid financial debt became due in terms of the agreement dated 21.11.2012. The Corporate Debtor acknowledged the debt from time to time vide their letters dated 05.09.2014, 17.03.2015, 28.11.2018 and reply notice dated 31.01.2018 wherein the liability is not denied. Hence, a sum of ₹ 4,25,32,016.405/-(=4,25,32,016.40) along with interest @24% per annum stands due as on date. 5. The Financial Creditor argued their case by relying on the judgment of the Hon'ble Supreme Court in the case of Punjab National Bank v/s. J-Marks Exim India Pvt. Ltd. C.P.(IB)-2176/2019 in which it is held as follows: 27. In the light of the above discussion and the fact that the Corporate Debtor in its financial statements for the F. Y. 2014-15 and F.Y. 2015- 16 filed with the Ministry of Corporate Affairs acknowledges the liability towards the Financial Creditor; and also in its letter dated 23.02.2017 submitted a proposal for one time settlement of dues of the Financial Creditor, IDBI Bank Limited and Bank of India, which was also revised on 15.09.2018. 28. Therefore, we hold tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 05.09.2014 and 17.03.2015 Financial Creditor issued letter agreeing to refund of the advance amount. On 28.11.2018 the Corporate Debtor issued another letter to the Financial Creditor stating as follows: - Sub: Refund of advance Baywatch Our telecom and various discussions regarding the subject matter. We are in verge of selling our property in order to settle our liabilities. As you are well aware that we are trying our level best to find a buyer and to refund your advance amount. Kindly bear with the delays in this regard and assure you the refund as soon as possible. 10. Considering the above reply sent by the Corporate Debtor, it can be seen that the Corporate Debtor acknowledged the debt of the Financial Creditor lastly on 28.11.2018. Hence, the instant application filed under Section 7(4) of the I B Code on 21.01.2020 is not barred by limitation. 11. Objection of the Corporate Debtor regarding the validity of Share Purchase Agreement due to non -registration is not under our jurisdiction. Hence, the Tribunal need not delve into that issue. Further, the objection of the Corporate Debtor regarding there being no common seal of the company and hence the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... market value of such transaction shall be taken into account; (h) any counter-indemnity obligation in respect of a guarantee, indemnity, bond, documentary letter of credit or any other instrument 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-clause (a) to (h) of this clause. 15. Since the present debt arises out of the Share Purchase agreement dated 21.11.2012, the said amount is a debt disbursed against the consideration for advance payment as per the agreement and hence is covered under the definition of financial debt and Applicant will be treated as Financial Creditor. In the aforesaid background, Financial Creditor has suggested the name of Mr Amier Hamsa Ali Abbas Rawther, IBBI/IPA-001/IP-P01727/2019-2020/12620, email id amierhamsa@gmail.com for appointment as Interim Resolution Professional (IRP). He has filed a declaration in Form 2 affirming that he is a registered Insolvency Professional and no disciplinary proceedings are pending against him. The application on behalf of Financial Creditor is complete and no disciplinary proceeding is pending ..... X X X X Extracts X X X X X X X X Extracts X X X X
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