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TMI Blog2022 (9) TMI 138X X X X Extracts X X X X X X X X Extracts X X X X ..... e Insolvency Resolution Process (CIRP) against A.K. Hirise Private Limited (hereinafter referred to as the Corporate Debtor). 3. The Corporate Debtor is a private company incorporated on 21.08.2007. The authorized share- capital of the company is Rs.10,00,000/- and the paid up share- capital of the company is Rs.2,50,000/-. The Corporate debtor is engaged in the business of civil construction and of real estate and other activities. 4. The instant petition was filed o 03.09.2019. The total amount claimed by the Financial Creditors jointly is Rs.90,31,148/- and the date of default has not been mentioned in the petition. 5. Part I of this petition contains particulars of Financial Creditor. Part II contains particulars of Corporate Debtor. And part III contains particulars of the proposed Interim Resolution professional. Part IV of this petition contains details of particulars of Debt. Part V contains the documents, records and evidence of default. 6. Submissions on behalf of the Financial Creditor: 6.1 The case of the Financial Creditors is that by way of a Memorandum of Understanding (MOU) dated 09.11.2013 between the directors of the Corporate Debtor as party of the first par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Corporate Debtor has failed to repay the part principal amounting to Rs.21,04,561/- and interest thereon. Even after having clear admission and acceptance of their liability, the Corporate Debtor failed to honour their commitments and did not pay the outstanding amount till date. 6.8 The total payable amount by the Corporate Debtor to the petitioners is Rs.90,31,148/- inclusive of interests calculated as per the terms of the MOU. 6.9 The documents produced by the Financial Creditor in support of his claims include: a. Copy of the Master data of Corporate Debtor being Annexure B; b. MOU between the Petitioner No.s 1 & 2 and Corporate Debtor being Annexure C; c. Copy of Board Resolution of the Corporate Debtor regarding the bank account, being Annexure D d. Bank account statements of the Financial Creditors from, being Annexure E; e. Bank account statements of the Corporate Debtor from, being Annexure F 7. Submissions on behalf of the Corporate Debtor: 7.1 It is submitted that as per the document annexed in the said petition, it appears that an undated Memorandum of Understanding was executed by and between Aloke Kumar Banerjee, Mouha Banerjee, Priyam Kumar Ghosh and R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the statement that no due is payable by the respondent to the applicants. 8. Rejoinder on behalf of the Financial Creditor: 8.1 It is stated that the Affidavit-in-Reply is misconceived and it contains irrelevant facts and submissions on behalf of the corporate debtor that are not necessary for adjudication of the present application. 8.2 It is stated that the averments in the said affidavit by the Corporate Debtor are misconceived and reiteration of the contentions that should not be considered and has to be rejected by this Tribunal, at the appropriate stage. 8.3 The Corporate Debtor has not raised any dispute with regard to its liability to pay the Petitioners in terms of the agreement dated 9th November, 2013. There is no dispute regarding the Corporate Debtor's liability to make payments in terms of the said agreement dated 9th November, 2013. 8.4 The Corporate Debtor has deliberately not raised any dispute relating to the reliefs sought in the instant application. Since, there is no dispute regarding the corporate debtor's liability and the issuance of the instruments is an unequivocal promise to pay. 9. Supplementary Affidavit dated 30th September 2019 on behalf of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date of default has been mentioned in the Form 5 of the petition. Further, the brief synopsis provided in the petition mentions that the last payment was made on 04.11.2016. in the absence of the date of default, the date of cause of action cannot be determined. 10.5 Further, a perusal of the MOU shows that the four directors of the Corporate Debtor form the party of the first part and Shri Shyam Sundar Poddar along with Shri Sital Kumar Poddar form the party of the second part. The other petitioners herein are not party to the said MOU. 10.6 On perusal of Annexure E and F of the petition, it can be seen that the petitioners have transferred various amounts to the Corporate Debtor. The parties to the MOU being Shri Shyam Sundar Poddar and Shri Sital Kumar Poddar have cumulatively transferred Rs.90,000/- to the Corporate Debtor. The remainder of the amount claimed in the instant petition i.e Rs.69,00,000/- has been transferred by the petitioners who are not parties to the MOU. Since the MOU has been used to establish the basis of the financial relation with the Corporate Debtor, the same cannot be used to support the claims of the petitioners who are not parties to the MOU. The Fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eedings by leading evidence and not in summary proceedings under the Code. However, in light of the above disputes, the dishonoured cheques cannot be taken into account. 10.11 Under section 7(5) of the Code, the Adjudicating Authority may admit the petition if a default has occurred and if the application is complete. In the instant matter, the basis of establishing the default i.e the dishonoured cheques, itself are disputed. 10.12 In light of the above facts and circumstances, this Adjudicating Authority, therefore, is not satisfied that default on part of the Corporate Debtor is established. Further, in absence of an explicit date of default in the petition, the same is incomplete. As such, the instant petition is liable to be rejected. 10.13 Consequently, C.P.(IB) No. 1586/KB/2019 shall stand dismissed. Needless to say, the Financial Creditor is free to pursue its remedies under any other law, and the dismissal of the present petition shall not stand in the way of such pursuit of remedies. 10.14 The registry is directed to send e-mail copies of the order forthwith to all the parties and their Ld. Counsel for information and for taking necessary steps. 10.15 Certified Copy ..... X X X X Extracts X X X X X X X X Extracts X X X X
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