9911796707
TMI Blog2021 (9) TMI 491X X X X Extracts X X X X X X X X Extracts X X X X ..... another corporate entity having CIN: U45400WB2007PTC116109 and having its registered office at Punwani Chambers, 3rd Floor, 7-B, Kiran Sankar Roy Road, Kolkata-700001, West Bengal (hereinafter referred as the Corporate Debtor). 3. It is submitted in the petition that the Financial Creditor was approached by the Corporate Debtor for sale of one flat of 1600 sq ft. @ Rs. 3,000/- per sq.ft. and one covered car parking @ Rs. 2,00,000/- (Rupees Two Lakhs only) amounting to Rs. 50,00,000/- (Rupees Fifty Lakhs only) at its proposed project site at 28 & 29 Barik Para Road, P.S. Behala, Kolkata-700034 in the light of the terms of Development Agreement dated 12th May, 2013 entered into by the Corporate Debtor with Srijan Mondal and others. It is submitted that the Financial Creditor on being approached by the Corporate Debtor found the proposal viable, and thus accepted the same and decided to pay 10% advance of property value, i.e. Rs. 5,00,000/- (Rupees Five Lakhs only) for purchase of the aforesaid property which the Corporate Debtor accepted on bank transfer of Rs. 5,00,000/- (Rupees Five Lakhs only) on 6th March, 2014. The Financial Creditor has annexed the Bank Statements of the Fina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to this Adjudicating Authority that she agrees to accept the appointment as Insolvency Resolution Professional if an order admitting the present application is passed, and that she is currently not serving as an Insolvency Professional in any other proceedings and no disciplinary proceedings pending against her with the Board or Indian Institute of Insolvency Professionals of ICAI. 7. The Corporate Debtor in its reply affidavit dated 5th March, 2020 filed through one of its Directors Mr. Agam Kumar Chowdhary submitted that allegations made in the petition are denied and disputed and that the petition is an abuse of process of this Tribunal. It is submitted that the petition has been filed to settle a personal score by invoking the provisions of IBC. It is submitted that Mr. Ashok Kumar Agarwal was a business associate of the Directors of the Corporate Debtor and the said Mr. Ashok Kumar Agarwal is also a Director in various associate companies of the Corporate Debtor. 8. It is submitted that the debt arises out of advance of property and that no document has been produced or relied upon to show that the said sum was in respect of any immovable property either by way of Money Rece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ank transfer on 6th March, 2014. It is stated that the Bank statements of Financial Creditor showing payment of Rs. 5,00,000/- and Development Agreement dated 12th May, 2013 between the Corporate Debtor and the owners of the land but what is surprisingly is that there is no privity of contract between the Financial Creditor and the Corporate Debtor because the Development Agreement is between Srijan Mondal and others with the Corporate Debtor herein and not between the Financial Creditor herein. It is also not clear as to how and in what capacity and on what terms and conditions, the Financial Creditor gave that money to the Corporate Debtor. The only proof is that a sum of Rs. 5 lakhs has been transferred by cheque No. 163245 in favour of the Corporate Debtor as amount advanced for purchase of property. No details of the property have been mentioned anywhere in the petition against which the said amount was advanced to the Corporate Debtor. If the property had been booked by giving advance/part payment, where would the question of payment of interest arise. There is no such agreement on record to show that the parties had agreed to pay interest on the said amount. A unilateral cal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... try and alter the fact of that liability. 12. Ld. Counsel referred and relied upon the judgments of the Hon'ble Supreme Court of India in the cases of Espn Software India (p) Ltd. vs. Modi Entertainment Network Ltd. (2012) 173 comp cas 465 (Delhi) and Asset Reconstruction Company (India) Limited vs. Bishal Jaiswal & Jaiswal & Anr. [Civil Appeal 323 of 2021 (Supreme Court)]. The Learned Counsel further argued that from the balance sheets of the Corporate Debtor, it is apparent that the Corporate Debtor treated the Financial Creditor as an 'investor' and borrowed the amount pursuant to forward sale purchase agreement for a commercial purpose i.e. sale of the flat and treating the same at par with 'loan' in their return. The amount invested by the applicants come within the meaning of 'Financial Debt' as defined in section 5(8)(f) of the IBC, 2016. 13. The Ld. Counsel further relied upon M/s. Al-Amin Limited vs. K.P. Sethumadhavan, and submitted that, wherein it was held that the inclusion of a debt in a balance sheet duly prepared and authenticated would amount to admission of a liability and therefore satisfies the requirements of law for a valid acknow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the applicants is a Financial Creditor nor is there any proof that the provisions of the Companies Act, 2013 have been complied with by the applicant. Ld. Counsel further submitted that it is an established law that all advances do not necessarily attract provision of IBC and the applicant knowing the same has spun a story without any evidential backing to misutilise the code to recover non-existent debts as defined in the Code. It is submitted that the applicant is trying to use this Forum as a tool of recovery of dues, which is not permissible under the Code. Ld. Counsel submitted that in a catena of cases, various Courts and Tribunals have observed that the IBC cannot be used to substitute for a recovery mechanism. It is submitted that the Code cannot be used to extract the sum of money owned to a particular person. 16. The next submission by the Ld. Counsel for the Corporate Debtor is that the application is barred by time because the application was filed on 14th October, 2019. It is submitted that the acknowledgement of debt as per section 18 of the Limitation Act, 1963 is mandated to be within 3 years of the application i.e. on or after 15.10.2016 because the Development ..... X X X X Extracts X X X X X X X X Extracts X X X X
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