TMI Blog2022 (9) TMI 275X X X X Extracts X X X X X X X X Extracts X X X X ..... r the Appellant that Corporate Debtor did not owe any Operational Debt . Tthe submissions of Learned Counsel for the Appellant that the Corporate Debtor did not owe any Operational Debt to the Operational Creditor, is rejected - appeal dismissed. - Company Appeal (AT) (Insolvency) No. 171 of 2022 - - - Dated:- 2-9-2022 - [Justice Ashok Bhushan] Chairperson And [Mr. Barun Mitra] Member (Technical) For the Appellant : Mr. Abhijeet Sinha, Mr. Alok K. Aggarwal, Ms. Anushruti, Ms. Anushka Sharma, Advocates For the Respondent : Mr. T.S. Ahuja, Ms. Sheena Sukhija and Mr. Yakchhandar Jain, Advocates. Mr. S. P. Singh Chawla, Advocate with Mr. Amit Talwar, IRP for R-2 JUDGEMENT Ashok Bhushan , J. 1. This Appeal by Suspended Director of the Corporate Debtor has been filed against the Order dated 12th January, 2022 passed by the National Company Law Tribunal, New Delhi, Court No-IV (hereinafter referred to as The Adjudicating Authority) admitting Section 9 Application filed under Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as the Code ) by the Respondent-Operational Creditor. 2. Brief facts of the case necessary to be noticed for deciding th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e signature of term sheet was not made by the Corporate Debtor further payment of Rs. 1 Crore was not made. Operational Creditor had begun construction of site with effect from 16.10.2016 and incurred certain expenses. When the Corporate Debtor did not sign the Term Sheet, by letter dated 26.12.2017 Corporate Debtor was asked to refund amount of Rs. 5 Crores which included Rs. 1 Crore spent by the Operational Creditor. Detailed Progress Report was claimed to be sent by Operational Creditor to Mr. Paramjit Gandhi on 04th August, 2017, 06th September, 2017 and 01st October, 2017. A Demand Notice under Section 8 of the Code was issued by the Operational Creditor on 13th April, 2018 claiming an amount of Rs. 05 Crores with interest. Demand Notice was served on Corporate Debtor. Section 9 Application was filed by the Operational Creditor in the month of May, 2018. Notice was issued to the Corporate Debtor. Reply to the Section 9 Application was filed by the Corporate Debtor. Corporate Debtor came with the case that Mr. Paramjit Gandhi was acting as an agent of Operational Creditor who informed that Operational Creditor is ready to pay amount of Rs. 23.60 Crore for taking over the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Creditor has not complied its obligation under the term sheet dated 25th April, 2017, the amount stands forfeited. There were no services involved which is apparent from term sheet dated 25th April, 2017. The transaction involved and investment by Operational Creditor to Development Agreement dated 01.10.2016 relied by the Operational Creditor was an unsigned document. Mr. Paramjit Gandhi was not authorized to communicate on behalf of the Corporate Debtor since he ceased to be director of the Corporate Debtor with effect from 22nd April, 2016. 4. Learned Counsel appearing for the Respondent refuting the submissions of Learned Counsel for the Appellant submits that amount of Rs. 3 Crores was paid to the Corporate Debtor by the Operational Creditor in furtherance of proposed development agreement to be entered between the parties. The Development Agreement dated 01.10.2016 was sent to the Corporate Debtor through Mr. Paramjit Gandhi which was not signed and later email was received that unless substantial amount is not paid, agreement shall not be signed. No agreement dated 19th April, 2017 or 25th April, 2017 were signed between the parties. The Operational Creditor has written ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om 01.11.2016 to 24th April, 2017. Further payment which is Rs. 1 Crore was made by the Operational Creditor to the Corporate Debtor on 05th April, 2017 which is also an admitted fact thus total amount of Rs. 4 Crores has been paid by the Operational Creditor to the Corporate Debtor. 9. Learned Counsel for the Appellant has much relied on Term-Sheet dated 25th April, 2017 which according to the Corporate Debtor is the only signed document on the record. The said Term-Sheet dated 25th April, 2017 has been brought on record by the Appellant as Annexure A-3 at page 102 of the Appeal Paper Book. The said Term-Sheet noticed that amount of Rs. 3 Crores has been received from Operational Creditor and further Rs. 1 Crore in April, 2017. On the basis of Term-Sheet dated 25th April, 2017, Learned Counsel for the Appellant submits that the amount of Rs. 23.60 Crores was amount for transfer of the Company in favour of the Operational Creditor which does not indicate any services. The Learned Counsel for the Respondent strenuously refuted the document dated 25th April, 2017 and submits that the said document is a fictitious document manufactured by the Appellant. The copy of the Application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raph 2,3,4 and 5 of the Legal Notice which is to the following effect: 2. My clients serve you with this present legal notice with an intention to fulfill its part of obligation under the Agreement to sell at 19.04.2017 with you good self. It is further reminded to your goodself about the postdated cheques and request you to honor your commitment under the Agreement to Sell dated 19.04.2017. 3. Without prejudice to my client s rights and contentions, you are hereby put to notice, under the Agreement to Sell dated 19.04.2017, your noncompliance of the same shall result in forfeiture of the advance amount handed over by your goodself to my client. Therefore, it is requested your goodself to honor your obligations under the Agreement to Sell dated 19.04.2017 with my clients. 4. It is further put to a request on behalf of my clients to replace the dishonored cheque stated above and also honor your commitment for the other cheques provided to my client by you in terms of the Agreement to Sell dated 19.04.2017. 5. You are hereby served with the present legal notice to comply with the said terms and conditions of the agreement to sell and on not doing the same you shal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12. We thus do not find any merit in the submission of Learned Counsel for the Appellant based on the Term Sheet dated 25th April, 2017 to contend that the transaction between the parties was transaction for taking over the Company of Rs. 23.60 Crore. The first Development Agreement which was admittedly forwarded to Corporate Debtor was Development Agreement dated 01.10.2016 which subsequently could not be signed between the parties. The Development Agreement dated 01.10.2016 referred to the proposed payment of Rs. 3 Crores and the payment of Rs. 3 Crores as referred to in the Development Agreement was actually paid by the Operational Creditor and subsequently Rs. 1 Crore was paid on 05th April, 2017. The Proposed Development Agreement is genesis of the transaction between the parties. Clause (A), (B), (C), (D) and (E) of the Development Agreement is relevant to notice: (A) Whereas the First Party absolutely owns and is in possession of a free hold plot of land bearing Khasra No. 1008, 1009/1 1009/2. 1010, 1011 1012, at Village Maharauli, NH-24, District Ghaziabad (U.P.) total area admeasuring 69.60 square meter, equivalent to 8324 square yard (approx) by virtue of Sale D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RS. 1.00 CR DT. 08.10.2016 ON ALLAHABAD BANK SOUTH EXT. NEW DLEHI. C. CHQ. NO 102057 RS. 1.00 CR DT. 11.10.2016 ON ALLAHABAD BANK SOUTH EXT. NEW DLEHI. [ii] The residual amount of the Developer Agreement shall be paid by the SECOND PARTY to the FIRST PARTY through 4 Half yearly post-dated cheques of Rs. 5,15,00,000/- (Five Crore Fifteen Lac) each for the purpose of construction. In all cases the remaining amount of 20,60,00,000/- (Twenty Crore Sixty Lac) shall be paid before the time of issuing Final Call Notice by the Second Party to the Buyers/Allottee(s) for taking possession of the Flats/Housing Units developed by the SECOND PARTY. (DETAILS OF PAYMENT AS UNDER): A. CHQ. NO 102058 RS. 5.15 CR DT. 04.04.2017 ON ALLAHABAD BANK SOUTH EXT. NEW DLEHI. B. CHQ. NO 102059 RS. 5.15 CR DT. 03.10.2017 ON ALLAHABAD BANK SOUTH EXT. NEW DLEHI. C. CHQ. NO 102060 RS. 5.15 CR DT. 03.04.2018 ON ALLAHABAD BANK SOUTH EXT. NEW DLEHI. D. CHQ. NO 102061 RS. 5.15 CR DT. 03.10.2018 ON ALLAHABAD BANK SOUTH EXT. NEW DLEHI. 14. The payments as contemplated in paragraph 7 has been made by the Operational Creditor i.e. Rs. 3 Crores which was paid and four postdated cheque ..... X X X X Extracts X X X X X X X X Extracts X X X X
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