TMI Blog2022 (6) TMI 777X X X X Extracts X X X X X X X X Extracts X X X X ..... Director of the Corporate Debtor and pursuant thereto admittedly entered into an agreement along with their receipt, duly executed by the land owner after accepting part payment of Rs.2,50,00,000/-, there is hardly anything left to be doubted. The Operational Creditor has duly complied with all the procedural formalities in filing the petition and has filed affidavit under section 9(3)(b), the petition is complete in all respects. Pre-existing dispute - HELD THAT:- Even though the Corporate Debtor has tried to convince this Adjudicating Authority as regards some pre-existing disputes and has raised certain frivolous grounds of defence but any of the grounds of defence taken by the Corporate Debtor, is not convincing. Application admitted - moratorium declared. - C. P ( IB ) No. 18 / KB / 2021 - - - Dated:- 25-5-2022 - Mr. Rohit Kapoor, Member (Judicial) Mr. Harish Chander Suri, Member (Technical) Ms. Manju Bhuteria, Adv. Mr. Varun Kedia, Ad. For Operational Creditor Ms. Urmila Chakraborty,Adv. Ms. Sevanti Roy, Adv. Mr.Raghunath Ghose, Adv. For Corporate Debtor ORDER Per : Harish Chander Suri, Member (Technical) 1. The Court is convened by vid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an amount of Rs.1,00,00,000/- plus taxes and the same is payable by the Corporate Debtor on receipt of invoice. It is submitted that the Corporate Debtor through one of its Directors Mr. R.N.Agarwal duly accepted such confirmation letter and terms contained therein on behalf of the Corporate Debtor. The Corporate Debtor also stated that the Corporate Debtor could not share any further documents with the Operational Creditor due to a non-disclosure agreement signed by the Corporate Debtor. A copy of the letter to the Corporate Debtor dated 22nd December, 2017 and the confirmation letter from the Corporate Debtor dated 30th December, 2017 are annexed as Annexure- A-6 (colly). 6. It is submitted that in terms of the said agreement between the parties, invoice dated 31st January, 2018 was physically delivered to the registered office of the Corporate Debtor to the tune of Rs.1,18,00,000/- inclusive of GST, and the payment was due on 2nd March, 2018. It is submitted that the Corporate Debtor has duly received the invoice without any objection or demur. (Annexure-A-7). However, several calls as well as emails dated 24.04.2018, 24.05.2018,21.06.2018 have been sent to the Corporate Deb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. The Operational Creditor has submitted that the date of default, in repayment the outstanding operational debt is 2nd March, 2018. 12. The Operational Creditor has enclosed with the petition, the following documents:- i.Agreement executed between the Corporate Debtor and ESAB India Limited, ii. Letter dated 22.12.2017 from the Operational Creditor to the Corporate Debtor, iii. Confirmation Letter dated 30.12.2017, iv. Invoice dated 31.01.2018, v. Copy of the emails dated 24.04.2018, 24.05.2018, 21.06.2018 along with enclosures. vi. Notice dated October 15, 2020 along with the postal receipt and track report, vii. Copy of the letter dated 4th November, 2020. 13. In reply to the petition, the Corporate Debtor has filed reply affidavit through its Manager (Legal) and submitted that the petition is not filed in accordance with forms prescribed under the Code and the various Rules and Regulations; the petition is defective and that there is no default on the part of the Corporate Debtor; that the Operational Creditor has failed to show any existence of debt or any occurrence of default; that no operational debt whatsoever is due to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xempted the vacant land measuring 21286.47 sq. Meter from the provisions of the Urban Land (Ceiling Regulation)Act, 1976, specifically under the provisions as enumerated under Section 20 of the Urban Land Ceiling Act only for industrial use. 19. It is submitted that the Vendor has full right and absolute authority to enter into an Agreement for Sale of the property. The said landed property is free from all encumbrances, charges, liens, lis pendens, attachment and trust whatsoever or however. It is submitted that all rates, taxes, cesses and outgoings in respect of the said property for the period up to execution and registration of the conveyance shall be borne and repaid by the Vendor/ESAB and thereafter the intending purchaser. 20. In Consideration of Respondent having paid the advance and agreeing to purchase the said property in entirely, ESAB has granted the following rights in favour of the Corporate Debtor:- i. To cause searches in the relevant offices for the purpose of determining the title of the vendor to the said land. ii. To obtain vendor s answer and/or compliance with all requisitions on title that may be required by the Advocate of the Corporate D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id agreement. However, if the time taken to obtain NOC is 18 months, then the sale consideration was agreed to be of Rs.46 Crores and in the event, NOC is obtained within 24 months from the date of the said agreement, the final consideration amount would be Rs.48 Crores. At the time of signing the said agreement, the Corporate Debtor paid an adjustable advance of Rs. 2.50 Crores to ESAB India Limited which is recorded in the said agreement. 25. It was further agreed between ESAB and the Respondent that on fulfillment of the condition precedent or soon thereafter, ESAB would cause sale of the said property in favour of the Corporate Debtor free from all encumbrances etc. and that the balance consideration amount shall be paid by the Corporate Debtor to ESAB India Limited at the time of execution and registration of the Deed of Conveyance of the said land. 26. The Corporate Debtor denied that it had accepted the terms of the alleged confirmation letter dated 22nd December, 2017. The Corporate Debtor further denied that the purported invoice (Annexure A-7) to the petition was received by the Corporate Debtor or that it was physically delivered to the registered office of the Cor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im of the Operational creditor. The exact area of the land or alleged difference in signature of Mr. Ashish Chandak, being the employee of the Operational Creditor,is immaterial in the instant case. It is denied that the Operational Creditor has failed to render any service as consultant/ land broker to the Corporate Debtor. It is denied that the transaction between ESAB India Limited and the Corporate Debtor is far from completion. The Corporate Debtor admits that it has even obtained a sanctioned building plan in respect of the said property, while alleging that the transaction has not completed. It is denied that the claim of the Operational Creditor is barred by the limitation . It is denied that the demand notice issued by the Operational Creditor is misconceived or false or is not in accordance with the said code. 30. Learned Counsel for the parties have been heard at length and both of them have taken us through each and every documents they wanted to refer. On perusal of the documents of the Operational Creditor, the two letters one by Operational Creditor to the Corporate Debtor written on 22nd December, 2017 and the reply thereto dated 30th December, 2017 are the main ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Creditor under Section 9 of the Insolvency Bankruptcy Code, 2016 for initiating Corporate Insolvency Resolution Process against the Corporate Debtor, is hereby admitted. ii) We hereby declare a moratorium and public announcement in accordance with Sections 13 and 15 of the I B Code, 2016. iii) Moratorium is declared for the purposes referred to in Section 14 of the Insolvency Bankruptcy Code, 2016. The I.R.P. shall cause a public announcement of the initiation of Corporate Insolvency Resolution Process and call for the submission of claims under Section 15. The public announcement referred to in clause (b) of sub-section (1) of Section 15 of Insolvency Bankruptcy Code, 2016 shall be made immediately. iv) Moratorium under Section 14 of the Insolvency Bankruptcy Code, 2016 prohibits the following: a) The institution of suits or continuation of pending suits or proceedings against the Corporate Debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; b) Transferring, encumbering, alienating or disposing of by the Corporate Debtor any of its assets or any legal right or benef ..... X X X X Extracts X X X X X X X X Extracts X X X X
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