TMI Blog2022 (2) TMI 412X X X X Extracts X X X X X X X X Extracts X X X X ..... of the terms and conditions including advances money paid and balance payable were finalized and agreeable to both the parties herein. The respondent herein along with the mentioned cheques had also issued cheques No. 000024 of ₹ 30,50,000, dated February 10, 2021 towards the full and final payment of the balance consideration as mentioned above. However, due to on-going disputes and refusal of the applicant liquidator to insert allotment of 3 car parking space in the revised agreement of sale, the respondent herein was constrained to issue directions to his bank to Stop Payment of said cheque of ₹ 30,50,000 - respondent, therefore, prays that applicant liquidator be hereby directed to register the agreement for sale in favour of the respondent at the earliest. The respondent undertakes to pay the balance consideration of ₹ 30,50,000 (after deducting necessary TDS) on the registration of the agreement. The respondent is directed to deposit balance amount with the liquidator within 15 days. On receipt of balance sale consideration liquidator shall go ahead for execution of sale agreement - If the respondent fails to deposit balance amount within the stipul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervalued transaction as provided under section 45 of the Code. 5. Further submitted that respondent is illegally holding and enjoying possession of unit No. 7 since the month of August, 2013 by just paying a sum of ₹ 4,50,000 (rupees four lakhs fifty thousand only) to the corporate debtor towards part consideration. The fact that the respondent is holding and enjoying possession since August, 2013 is evident from clause (K) of the agreement dated September 2, 2019 and also admitted by the respondent in his affidavit in reply at paragraph 6. It is pertinent to note that the amount of ₹ 4,50,000 is appearing in the balance-sheet of the corporate debtor as advances from related parties . 6. The applicant submits that the agreement was executed by and between the corporate debtor and respondent on September 2, 2016 (copy of the agreement is annexed as exhibit C to the MA at page 8 onwards) wherein at clause (J) it was recorded that the sister concern of the developers, viz., Mathura Enterprises was liable to pay respondent a sum of ₹ 43,00,000 as on August 31, 2016 and pursuant to the discussion and understanding it is agreed between parties that the said amo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is an established present position that the respondent is enjoying the fruits of the valuable property without making a payment. This situation has two remedies. The first is that the respondent should immediately deposit the impugned sum of ₹ 3,78,00,000 in the account of the corporate debtor which shall be put in a fixed deposit and shall remain unencumbered by any Authority. This deposit in the bank shall remain protected asset of the debtor company which shall not be subject to any attachment by any authority of law. This decision is taken primarily with the intention that at least the corporate debtor shall be able to collect its legal dues. In turn the resolution professional shall issue receipt of the said payment with an under standing that in due course of time the legal formalities of the transfer of property in favour of the respondent shall be completed. The second option is that the respondent-Mr. Dalvi should pay a monthly compensation from the date of allotment till date because he is enjoying the fruits of the property without making any investment, barring scanty earnest money. The resolution professional/liquidator are in process of finalization of the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by Drawer vide bank memo dated February 11, 2021. 13. It is submitted that the applicant issued demand notice under section 138 of the Negotiable Instruments Act, 1881 calling upon the respondent to pay the cheque amount of ₹ 30,50,000. However, the respondent instead of making the payment of the outstanding amount filed an Interlocutory Application No. 535 of 2021 seeking direction against the applicant to allot three car parking space as assured by the erstwhile directors in the agreement dated September 2, 2016 and only then respondent will make the payment of the cheque amount. This Tribunal vide its order dated August 3, 2021 was pleased to reject the said IA filed by the respondent on the grounds that the applicant has no power to allot car parking. 14. The applicant submits that it is quite evident from the above conduct of the respondent that he has no intentions to pay even the admitted amount and also deliberately failed to comply with the orders passed by this hon'ble Tribunal. The respondent has consistently on some or other pretext tried to delay the outcome of the present proceedings. 15. In the aforesaid circumstances, the applicant prayed to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alance consideration of ₹ 3,30,50,000 (rupees three crores thirty lakhs and three thousand only) and obtain a registered conveyance of the said premises in his favour. 19. The applicant liquidator preferred this application wrongfully invoking to the provisions of section 45 in this case despite knowing that my transaction with corporate debtor is not affected by the said provisions. For the purpose of invoking the provisions of section 45 of the Code it is requisite condition of the Code that the applicant, who has been appointed as the resolution professional of the corporate debtor, must upon examination of the transaction in satisfied that : (a) The transaction has been entered with the corporate debtor at the relevant time as defined under section 46 of the Code ; (b) The transaction is undervalued in nature ; and (c) The transaction has not taken place in the ordinary course of business of the corporate debtor. 20. Only when the aforesaid three basic conditions are met, the applicant as resolution professional is empowered and entitled to file an application under section 45 of the Code for declaring the transaction as void and for reversal of the transac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... q.meters equivalent to ₹ 19,178 per sq.ft. Thus, the total value of the said premises considering the Ready Reckoner price is ₹ 3,51,91,630 whereas under the said letter of allotment dated August 4, 2013 the said premises has been agreed to be sold and transferred to me for an agreed consideration of ₹ 3,78,00,000 which is higher than the Ready Reckoner price. A copy of the relevant extracts of the Ready Rec koner Price of the property is annexed as exhibit C to the affidavit-in-reply February 12, 2019 of respondent. Hence it can be clearly seen that the said transaction executed between the corporate debtor and respondent is not an undervalued transaction and the value mentioned in the letter of allotment dated August 4, 2013 and agreement for sale dated September 2, 2016 is not undervalued transaction as falsely alleged and contended by the applicant liquidator. (c) Ordinary course of business/stock in trade The corporate debtor is a real estate company and selling of units and premises is the ordinary course of business activities. The said premises is not the assets of the company but was its stock in trade and as such selling the said premises to me f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent to pay the balance consideration for the said premises and to complete the sale thereof. This Tribunal accepted the respondent's submission that only a sum of ₹ 3,30,50,000 was due and payable in accordance with the terms of clause 11 of the agreement. The relevant portion of the said order is reproduced as under : 2. M. A. Nos. 642 and 2894 of 2018-It was agreed by the proposed purchaser and the occupant of the property as well as the representative of the RP that the area as stipulated in the agreement dated August 2, 2016 is to be clearly demarcated by way of a map. 3. It was also directed by this Bench that the balance amount, i. e., ₹ 3.78 crores minus ₹ 47.5 lakhs was to be paid and as per the schedule of payment that would be mutually agreed by both. However, the registration and the full and final payment has to happen simultaneously. 4. Any NOC required by the respondent for raising finance from a financial institutions may be given by the petitioner on the request of the respondent. 5. Learned counsel from SICOM mentions that no NOC from SICOM is required as SICOM has relinquished its right on this property as per sections 52 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aring the said earlier agreement with respect to sale of the said premises null and void and seeking physical possession of the same from Mr. Gopal Shivram Dalvi, further, Mr. Gopal Shivram Dalvi at the time of hearing of the said M. A. showed interest and intended to purchase the said premises and agreed to pay balance consideration of ₹ 3,30,50,000 pay able by him under the said earlier agreement to the vendor. Accordingly, the hon'ble National Company Law Tribunal, Mumbai (Special) Bench vide Order dated January 28, 2020 directed Mr. Gopal Shivram Dalvi to pay the balance consideration of ₹ 3,30,50,000 to the vendor as per the schedule of payment as mutually agreed by both and also directed that the full and final payment and registration should happen simultaneously. Copy of the order dated January 28, 2020 passed by this Tribunal is annexed as annexure 3 to the reply. (H) The purchasers have agreed to complete the sale process and purchase the said Premises in due compliance of the order dated January 28, 2020 and the discussion and on terms and conditions finalized with the vendor by making payment of the balance consideration of ₹ 3,30,50,000 (rupe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to state that our client shall not be in a position to accept any further modification, alteration or suggestion in the said draft. Your client may proceed with payment of stamp duty and book an appointment for registration without any further delay. Our client is available on December 17, 2020 or December 18, 2020 or December 22, 2020 or December 24, 2020 for the purpose of execution and registration of the attached agreement for sale subject to prior confirmation. Regards, Adv. Abdullah Qureshi, Senior Associate, IndiaLaw LLP Mumbai +91 9821693842. 31. Despite issues and disputes going on, in due compliance of the said order dated January 28, 2020 the respondent adhering to his part of obligation till date has paid ₹ 3,00,00,000 to the corporate debtor in liquidation as per the following schedule : Sl. No. Payment of mode Date of payment Amount (Rs.) 1. Cheque No. 00016 October 10, 2020 50,00,000 2. Cheque No. 000021 November 3, 2020 50,00,000 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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