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TMI Blog2021 (2) TMI 147X X X X Extracts X X X X X X X X Extracts X X X X ..... initiate Corporate Insolvency Resolution Process (CIRP) against HBS View Private Limited (Corporate Debtor). 2. The Corporate Debtor is a private company limited by shares and incorporated on 14.02.2012 under the Companies Act, 1956, with the Registrar of Companies (RoC), Maharashtra, Mumbai. Its CIN is U70109MH2012PTC226906. Its registered office is at No.505, Ceejay House, Dr Annie Besant Road, Worli, Mumbai 400 018, in the State of Maharashtra. Therefore, this Bench has jurisdiction to deal with this petition. 3. The present petition was filed on 16.08.2019 before this Adjudicating Authority on the ground that the Corporate Debtor failed to make payment of a sum of Rs.2,16,00,000.00 (Rupees two crore sixteen lakh only) as principal an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .004074 dated 20.12.2017 on 08.03.2018 in his bank, viz., Saraswat Cooperative Bank Limited, Carnac Bunder Branch, which was dishonoured by the respondent's bankers. Statutory Notice as required under section 138 of the Negotiable Instruments Act, 1881, was issued, which was neither replied to by the respondent, nor was the amount paid. Therefore, the petitioner lodged criminal complaint under section 138 of the Negotiable Instruments Act, 1881. The respondents duly entered appearance before the court. Thereafter, a settlement was arrived at mutually and consent terms were filed into court, leading to withdrawal of the criminal complaint against the respondent. (d) The present petition has been filed citing breach of consent terms and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted their respective flats. Ultimately, in 2016, the old building was demolished; (b) Under an Agreement for Development dated 06.05.2012, the Society appointed the respondent/corporate debtor as developers for redevelopment of the property. Like other erstwhile occupants, the petitioner herein is also entitled to a new flat in the new building named as 'HBS View 360,' by way of permanent alternative accommodation; (c) In March 2017, the petitioner approached the respondent herein and offered to sell the flat that she was entitled to in the new building, since she had already purchased a flat somewhere else by availing of a housing loan, and the petitioner was finding it difficult to pay the EMIs in the matter. Given the prevailing mark ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the transaction. It is the respondent's case that since the petitioner was not refunding the earnest money deposit, it had no alternative but to replace the previous cheque with two new post-dated cheques for Rs.1,14,84,000/- and Rs.99,00,000/-. These two cheques again got dishonoured, and therefore, the respondent requested the petitioner to terminate the transaction and refund the earnest money with interest, which the petitioner did not do. The petitioner instead chose to file two criminal complaints before the Learned Additional Chief Metropolitan Magistrate, Sewri, Mumbai, under section 138 of the Negotiable Instruments Act, 1881. In view of the above, the respondent had no alternative but to settle both complaints by executing co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers dealt with therein, went on to hold that a power of attorney holder is not competent to file an application on behalf of a financial creditor or operational creditor or corporate applicant (para 38 of the judgment). 11. This judgment holds the field at present, and we are bound by it. Therefore, the present petition filed by a power of attorney holder on behalf of the petitioner is not maintainable. Be that as it may, we have considered the petition even on merits. 12. We have considered the underlying nature of the transaction between the parties. The petitioner had offered her flat, which she was entitled to in the premises in question on account of redevelopment of the existing building, to the respondent. The respondent had paid w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ues to receive rents from the respondents arising out of the agreement for redevelopment. He further pressed his point that every contractual debt would not be an operational debt as no goods or services have flowed form the petitioner to the respondent. Further, in the present case, the payment has been made by the respondent to the petitioner and not vice versa. 16. There is merit in the contention of the learned counsel for the respondent. Section 5(21) of the IBC defines an operational debt as "a claim in respect of the provision of goods or services, or a debt in respect of the payment of dues arising under any law for the time being in force and payable to the Central Government, any State Government or any local authority." In the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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