9911796707
TMI Blog2022 (7) TMI 658X X X X Extracts X X X X X X X X Extracts X X X X ..... , Bokaro Steel City, Jharkhand-827004 (hereinafter referred to as the Corporate Debtor). 3. It is submitted that the Corporate Debtor is a Private Limited Company incorporated under the provisions of the Companies Act, 1956. It is further submitted that Corporate Debtor is engaged in the business of housing construction for sale of flats and other allied services in Bihar and all major cities of India. It is submitted that in the year 2012, the Corporate Debtor came up with a Group Housing Multi Storied Residential Project in the name of "SARTHAK PARK" at plot no. 708, Khata No.185 admeasuring total area 43 decimal within Mouza Chas, Thana No. 30, District-Bokaro. 4. It is submitted that in the year 2015, the development agreement was executed between the land owners of the property i.e. Lalmati Devi and Sheo Balak Prasad and Shyama Bhagwati Infrastructure Pvt. Ltd. through its Director Prabhash Chandra (Developer), wherein it was agreed between the parties that all-together 50 flats will be developed on the property out of which 15 flats will be handed to the owner's personal use and the rest 35 flats will belong to the developer which will further be sold to individuals for res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the aforesaid project and completed approx. 60 to 65% of the project which can be verified from the photographs of the various towers of the project. However, in November, 2016 disputes arose between both the directors of the Company related to the project and the project was stopped abruptly. 10. It is submitted that the dispute between the Directors lingered on to such extent that one of the Directors namely Rakesh Srivastava asked the IDBI bank to "Block" & "Stop" the current account no. 0185102000004046 of M/s Shyama Bhagwati Infrastructures Pvt. Ltd. The IDBI bank vide letter dated 12.01.2017 froze the current account of M/s Shyama Bhagwati Infrastructure Pvt. Ltd. 11. It is submitted that vide various letters including of dated 01.02.2017, Prabhash Chandra, one of the Director of the Corporate Debtor informed to the buyers of the project that due to the prevailing dispute between the directors of the Corporate Debtor, the Bank account of the Corporate Debtor has been frozen by Rakesh Shrivastava, the other director of the company and therefore, in these adverse condition of the company, no further development in the construction of the multi storied apartment project can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to mention that the present application is maintainable even if the Company has been stuck off in terms of the landmark judgment passed in the matter titled as " Hemang Phophalia vs The Greater Bombay Co-operative Bank Limited and Anr.", wherein the Hon'ble NCLAT has held that "the Adjudicating Authority which is also the Tribunal is empowered to restore the name of the Company and all other persons in their respective position for the purpose of initiation of Corporate Insolvency Resolution Process' under sections 7 and 9 of the I & B Code based on the application, if filed by the 'Creditor' (Financial Creditor or Operational Creditor) or workman within twenty years from the date the name of the Company is stuck off under sub-section(5) of Section 248. 17. It is submitted that the Corporate Debtor with mala fide intention stopped the working of the project "Sarthak Park". It is further submitted that there is no work of construction that is going on at the site for more than past two years. The applicant contacted the Corporate Debtor various times to enquire about the handing over of the possession of the flats or to return their money back but the Corporate Debtor did not pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted that in the year 2010, one Mr. Prabhash Chandra the other Director of the Corporate Debtor had approached him to invest funds into real estate business and after much persuasion of Mr. Prabhash Chandra, Corporate Debtor agreed to invest substantial amount into the business of Real Estate and both of them decided to incorporate a company for pursuing such real estate business and ultimately M/s Shyama Bhagwati Infrastructure Private Limited was incorporated on the 8th day of July, 2011 before the Registrar of Companies, Bihar and Jharkhand. Mr. Prabhash Chandra, with a planful misrepresentation and false assurance persuaded him to form a company with him as the other co-director. 24. It is submitted that Corporate debtor after its incorporation entered into a development project at Gope Nagar, Chira, Chas, Bokaro, Jharkhand on the piece and parcel of land having total area of about 43 decimals bearing plot no. 704 and 708 under Khata No. 185 within revenue thana no. 30 by virtue of agreement executed on 30.07.2011 and 20.02.2012 and the project of development of a multi storyed building complex thereon in the name and style of "Sarthak Park" after sanction of the map vide file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oper account and audits of the Corporate Debtor but with one pretext or the other Mr. Prabhash Chandra, with mala fide intention did not provide the proper accounts and audits of the corporate debtor to him and after much persuasion on or about 20th August, 2016, he sent him the valuation report for the site. 29. It is submitted by the Ld. Counsel for the Corporate Debtor that upon perusing of such valuation report, it became palpably clear that taking the advantage of the dormant position of the other director, Mr. Prabhash Chandra, siphoned off funds from the project to his own pocket for his personal gains by manipulating the accounts and the audit reports for which I was constrained to request the branch manager of the IDBI Bank Limited, Ranchi to provide the bank statements of the current account of the corporate debtor from 07.09.2011 till the date of the letter i.e. 23.10.2016 and in pursuance to such request was made by Srivastava branch manager vide an email dated 29th October and 31st October, 2016 has forwarded the bank statements for the period 07.09.2011 till 10.10.2016, whereas the bank statements shows that an amount of Rs. 30,20,000/- was transferred by the other d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such accounts were never provided to Mr. Srivastava in spite of several reminders and requests. 34. It is submitted that till May, 2018 the other Director Prabhash Chandra evaded from providing with the complete accounts, ledgers, bills and vouchers for the financial year 2015-16, 2016-17, 2017-18 and also did not provide with the complete details of the flats booked along with customer name and contact number as well as the project sanctioned letter for loan from LIC housing finance corporation. 35. It is submitted that due to non-filing of the statutory compliances for the deliberate and mala fide inaction on the part of the other director Prabhash Chandra, a notice dated 19.05.2018 was received from the office of the Registrar of Companies, Jharkhand for removal of the name of companies from the Registrar of Companies. 36. It is submitted that vide letter dated 27th May, 2018, Srivastava has duly replied to the false and frivolous allegation as raised by the other director Prabhashh Chandra and made it clear that the Board meeting will remain suspended till the records and documents are provided to him as per his requisition in several earlier representation. 37. During the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11/09/2018 stuck off the names of the Corporate Debtor from the register due to the reason that the company was not functioning up to mark for the two financial years and the Corporate Debtor has failed to fulfil its obligations whereby the applicants/ allottees have suffered in huge loss, damages, great mental tension and pecuniary losses. It is submitted that due to the delay in handing over the project. The allottees of the project decided to form a society vide Memorandum of Association in the name of Sarthak Park Consumer Welfare Society and notified the Corporate Debtor vide letter dated 16.12.2019 to deliver the possession but there was no response. It is submitted that the Corporate Debtor has neglected to provide any probable or satisfactory solution to the applicants. The applicants, therefore, filed the present petition to initiate CIRP in respect of the Corporate Debtor. In reply to the petition, the Corporate Debtor allegedly claimed for non-payment of sale consideration which is uncertain and an absurd ground. The Corporate Debtor has twisted the material facts with mala fide intention. It is submitted that the Corporate Debtor has intentions to cheat the applicants f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the other director namely Prabhash Chandra to Mr. Shrivastav. The development project continued only with such loan and/or investment which was agreed between the two directors to be refunded to with interest from the income of the project. 44. It is submitted that as Mr. Srivastava was out stationed and could not manage the day to day affairs of the corporate debtor, and he provided substantial funds to the project as and when requested by the other director namely Mr. Prabhash Chandra, upon mutual trust and good faith. 45. It is submitted that within a year, i.e. by the end of 2015 it become slowly and apparently clear to Mr. Srivastava that Mr. Prabhash Chandra being the other director of the Corporate Debtor was siphoning off the funds as being invested by him by manipulating the books of accounts and not providing the audits of the Corporate Debtor with him. 46. It is submitted that from the Bank statement it revealed that Mr. Prabhash Chandra transferred Rs.30,20,000/- to his personal proprietorship firm namely Gigat Co. and a sum of Rs. 4,93,000/- to his wife's account. 47. It is submitted that by a letter dated 28th December, 2016 Mr. Srivastava called upon Mr. Prabh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rector Mr. Prabhash Chandra and the applicants in this petition and the present petition is a sham petition and barred by limitation. 54. It is submitted that self-contradictory statements have been made in paragraph 3 and 5 of the petition, whereas in paragraph 3, it was stated that the developer had avowed to complete the said multi-storied residential property within 30 months with further extension of 6 months from the registration of the development agreement i.e. 11.04.2015 and the period of 36 months expires on 10.04.2018 and on the contrary at paragraph 5, it was stated that the builders shall give possession of the flat to the flat purchasers on or before January, 2019. 55. Ld. Counsel further submitted that Clause 23 of the agreement for sale is absurd and detrimental to the interest of the Company. It is absolutely absurd proposition that without paying the entire consideration amount of the respective flats, proposed buyers shall be entitled for registration of the flat only after the payment of 10% of the sale consideration of the flat which would itself show that the agreements are all sham documents prepared at the instance of the other Director namely Prabhash Cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he started applying all types of illegal pressure, then the other director adopted another way by conspiring to usurp and grab the entire property and all money (Rs.1,47,30,000/-), invested by the answering director in this project. Prabhash Chandra prepared all these notices by himself on behalf of the customers (each and every line and sentences, the entire matter are exactly the same). All planning has been done in association with the customers. The society has also been formed on the direction of Prabhash Chandra to fulfill all his mala fide intentions. Through his wife, own brother & Own Sister-in-law, Relatives & Close Friends, Prabhash Chandra is very much there in the society as a conspirator behind the curtain and handling the thing in his own way. The entire scenario has been plotted under conspiracy to make " Shyama Bhagawati Infrastructures Pvt. Ltd." insolvent & which will be no more in existence along with One Director. As a result no fingers or questions will be raised on conspirator Prabhash Chandra for handling funds and manipulating accounts of the company arbitrarily and there will be no question of returning of Rs.1,47,30,000/-, the investment of the answering ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll these applicants who are stated to have booked their flats and deposited the amount with the Corporate Debtor have joined hands and made an association to file this application because individual applicants could not have filed any such application but since the claim of most of the applicants had become time barred, and since some of them are related to one of the Directors of the Corporate Debtor namely Prabhash Chandra, a letter was issued by that Director to bring all their claims within limitation. Letter dated 28th May, 2018, written by the said Director to all the applicants specifically referring to the agreement dated 17th July 2015 being agreement for purchase of flat with the builder. Clause 8 of the said agreement, however, specifically provided the amount of consideration to be paid by the applicants who booked their flats as under:- " That, the Flat Purchaser will pay to builder rest of the amount of consideration amount of flat sale excluding the initial payment amount and booking amount in the following manner:- (i) 10 percent at the time of foundation. (ii) 10 percent at the time of tie beam. (iii) 10 percent at the time of First roof casting (iv) ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
