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TMI Blog2021 (4) TMI 1297X X X X Extracts X X X X X X X X Extracts X X X X ..... tanding amount of (Rupees Six Crore Only) as on 07.03.2019 along with interest at 18% per annum till date. 2. This Petition/Application under section 9 is filed by Mr. G.S Shivakumar, Managing Partner on behalf of the Petitioner Company being duly authorised by Resolution dated 06.03.2019. Copy of the Resolution is annexed to the Petition. 3. Brief facts of the case, as per the Petitioner, which are relevant to the issue in question, are inter alia as follows: (1) The Petitioner is a partnership firm involved in the business of land development, construction and other incidental activities. The Respondent had purchased the immoveable property of the land bearing Sy. No.88/2, measuring 8 Acres 13 Guntas and Sy No.89/2, measuring 1 Acre 28 Guntas (28 Guntas Kharab), both situated at Kannamangala Village, Kasaba Hobli, Devanahalli, vide Sale Deed dated 08.06.2015. (2) It is submitted that in consideration of the development carried out by the Petitioner with respect to the said property and expenditure incurred for conversion of said property to residential purpose, approval of provisional plan from the BIAPPA, erection of fence around the compound wall of the said property, lev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Respondent issued Reply dated 30.03.2019 disputing the due amounts reiterating that the Petitioner and Respondent had entered into Sale Agreement and all amounts were already paid. The 12 undated cheques were given prior to entering the Sale Deed to show their bonafides as purchasers. However, the petitioner stated that it had misplaced 5 cheques and never returned the same. The Respondent alleges that the Petitioner has concocted documents and is making false claims. (9) Petitioner has filed Affidavit supporting the Application as required by the Code, 2016. Copy of the NeSL Report of CD showing the status of authentication by debtor as disputed. (10) The Petitioner has annexed Banker's Certificate by State Bank of India Chitradurga branch and Canara Bank, Vyalikaval branch, both dated 26.06.2019 certifying that the Petitioner has not received any monies into the account from the Respondent Company. 4. The Respondent filed Statement of Objections with the below stated submissions: (1) The Corporate Debtor submits that it purchased a plot of land measuring 8 Acres 13 Guntas in Sy No.88/2 and 1 Acre 28 Guntas (excluding 28 Guntas of Kharab) in Sy No.89/2 of Kannamangala ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deration to the Petitioner, all the cheques were to be returned to the Respondent. (5) It is submitted that 7 cheques were returned and 5 cheques were not returned stating that they were misplaced and would be returned. Further, the Respondent was notified that apart from O.S No.87/2014, the Civil Aviation Society had also filed another suit in OS No.770/2015 before the Senior Civil Judge at Devanahalli, to restrain the Respondent from obtaining plan approvals from concerned authorities. (6) The Respondent issued Legal Notice dated 28.09.2016 demanding the Petitioner to act upon the Deed of Indemnity and settle and close the pending disputes with respect to the schedule property. Copy of legal notice is annexed to the Objections. (7) The Petitioner in its Reply to the Notice demanded Rs. 6 Cr relying on concocted Memorandum of Agreement (MOA). The false claim made by the Petitioner is contrary to the Sale Deed. The Petitioner issued notice under section 138 of Negotiable Instruments Act on 03.03.2017 which was replied. Subsequently 5 cases under Negotiable Instruments Act have been filed by the Petitioner. Copies of the Complaints are annexed to Objections. (8) It is also s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... OS No. 1445/2020 for declaration that the MOU is null and void, as an afterthought to deny the legitimate claim of the Petitioner before this Tribunal. The Respondent had not filed any case challenging the MOU since 2015. The suit has been filed with a malafide intention. The application seeking initiation of CIRP may be admitted against the Respondent. 9. Heard Ms. Ramya Bai, learned Counsel for the Petitioner and Mr. Ajesh Kumar, learned Counsel for the Respondent, through video conferencing. We have carefully perused the pleadings of the Parties and extant provisions of the Code and the Rules made thereunder. 10. On a perusal of copy of the Memorandum of Agreement dated 08.06.2015, it is seen that the Respondent has entered into the agreement consciously bearing the seal and signature of the MD. It is seen from Clause (C) that in consideration of development carried out by the Petitioner and the expenditure incurred for conversion of the schedule property to residential purpose, approval of plan, erection of fence, leveling and liaison of all such works the amount payable by the Respondent is arrived at Rs. 6 Crore. Clause (D) also mentions the manner of payment and list out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly undertaken to defend such case before the court of law in accordance with law to see that the Schedule property is not affected by any adverse order passed in such case. Apart from that the Petitioner had not given any undertaking to resolve the dispute by any other means as being claimed by the Respondent. In the Reply Notice it was also undertaken that the Respondent would be defended in O.S No.770/2015 by the Petitioner. Further, the Petitioner cannot be held responsible for any agreements between the Respondent and its subsequent buyers. 13. From the above exchanges between the two sides, it is clear that there was no dispute raised with regard to the payment of Rs. 6 crore. The dispute, if any was with regard to the indemnity clause and with reference to the cases in court viz a viz the Civil Aviation claims. This issue of Rs. 6 crore was brought in by the Respondent when the subsequent buyer withheld the payments. We are in agreement with the Petitioner that on a perusal of the Memorandum of Agreement, the acknowledgement of debt is clear. Further, if the MOA was not valid, nothing stopped the Respondent to challenge the same before the relevant forum at that time itself. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evenues, continue its business and pay its debts. It is only harping on its contention that it has not entered into Memorandum of Agreement dated 08.06.2015 and is in denial of the liability. However, as mentioned above, this claim does not appear to be correct and there does not appear to be any bonafide dispute. The dispute stated to be pre-existing is unrelated to the debt in question, and is subsequent to the MOA as per which the debt arose. 17. The Petitioner has not suggested the name of any IRP for appointment. This Tribunal has therefore sought the acceptance of a registered Insolvency Professional, Sri Kanekal Chandrashekhar bearing IP Registration No. IBBI/IPA-002/IP-N00642/2018-2019/11964; r/o No. 6, Shree, 9th Cross, Bhuvaneshwari Nagar, Hebbal Kempapura, Dasarahalli Main Road, H A Farm Post, Bangalore 560024. Vide his written communication in Form 2 dated 08.04.2021, Sri K. Chandrashekhar has given his consent for appointment as the Resolution Professional. He has stated that he is currently qualified to practice as an Insolvency Professional and has certified that there are no disciplinary proceedings pending against him. He has affirmed that he is eligible to be app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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