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TMI Blog2019 (9) TMI 1609X X X X Extracts X X X X X X X X Extracts X X X X ..... ompany which has been termed as the Corporate Debtor. The transaction leading to filing of the present Application as reflected in the application jg stated to be as under: a. On 30.05.2013 a Memorandum of Understanding (MOU) was executed between the parties for the grant of loan of Rs. 50,00,000/- by Financial Creditor to the Corporate Debtor at 2% interest per month along with the mortgage of two flats by the Corporate Debtor to the Financial Creditor wherein the charge in relation to which was never created in favor of the Financial Creditor. b. On 01.06.2013 after the approval from the board of Financial Creditor, payment of loan to Keltech Infrastructure Limited was made through cheque for amount of Rs. 50 lakhs and the same was ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re dishonored, Since, then no other cheques were deposited in the bank. h. On 02.05.2017, Financial Creditor issued a letter seeking repayment of dues but this letter was returned unserved, i. On 05.06.2017 another letter demanding for the repayment of the entire dues was issued by the Financial Creditor but was never replied by the Corporate Debtor. j. On 27.10.2017 a demand notice was issued by the Financial Creditor which was never replied. k. From December 2017, neither of the letters were replied nor any payment was made by the Corporate debtor. 2. Consequent to the issue of notice by this Tribunal, the Corporate Debtor filed a reply in which the following contentions have been taken: a. Corporate Debtor states that debt sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inancial Creditor and now the Corporate Debtor is challenging the existence of Memorandum of Understanding itself. b. It is submitted that Builder Buyer Agreement was only entered for the security as the said charge was never created in compliance of the provisions of Companies Act 2013. The Builder Buyer Agreement was signed by the Financial Creditor as a part of document required for the purpose of creation of charge in favour of Financial Creditor, the Corporate Debtor did not complete other document such as filing of CRC- 1 in compliance with the provision of Section 78 of the Companies Act 2013. The Corporate Debtor is portraying wrong picture of said BBA as satisfaction of the debt, which infact was never intended between the partie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Debtor and documents annexed therewith shows that an agreement dated 1 October 2016 has been entered into between Corporate Debtor and Financial Creditor from which the following facts have been recited "And whereas the promoter is allowed to construct residents flats etc and the same are allowed to be sold or transferred to any person by the Promoter under the terms and conditions of the sale of the said plot by the CIPL and the Allottee/ Buyer has examined the relevant papers. And whereas the promoter to construct on the aforesaid plot a multi storeyed building to be called "Kumar Golf Vista" with a number of flats got prepared building has been undertaken in accordance therewith. And Whereas the allotee/ Buyer has examined the buildi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reed to appropriate the loan amount granted earlier as the consideration for the flat purchase as otherwise the wordings as extracted above is an anomaly. It is pertinent to note that the execution of the agreement dated 1 October 2016 is not denied by the parties. Hence, considering the said agreement to be the fresh bargain as entered into between the parties thereby giving a go by to the earlier MOUs as well as the loan transaction of Rs. 50 Lakhs, 9. Still, the Financial Creditor will be entitled to maintain a petition under Section 7 IBC,2016 in case of a default in handing over possession of the flat, being the subject matter of the agreement within the time schedule and for the refund of the money made available under the agreement ..... X X X X Extracts X X X X X X X X Extracts X X X X
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