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TMI Blog2022 (10) TMI 639X X X X Extracts X X X X X X X X Extracts X X X X ..... he Insolvency & Bankruptcy (Application to Adjudicating Authority) Rules, 2016 seeking initiation of Corporate Insolvency Resolution Process against M/s. Seriatim Land and Housing Private Limited, the Respondent. 2. The Respondent namely, M/s. Seriatim Land and Housing Private Limited is a Company incorporated on 13.06.2005 with CIN: U45201DL2005PTC137525 under the provisions of the erstwhile Companies Act, 1956 having its registered Office at C-3/260, Janakpuri New Delhi West Delhi-110058, which is within the jurisdiction of this Tribunal. That the Authorized Share Capital of the Respondent is Rs. 20000000/- and Paid-up Share Capital is Rs. 19900000/- as per the Master Data of the Respondent. 3. During the course of preliminary hearing, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide sale deed dated 05.05.2006. M/s. ABW Infrastructure Limited ('Developer') has undertaken to develop the said land by constructing a Multi-Storied building. The Respondent entered into an Agreement with M/s. ABW Infrastructure Limited for developing the said land by constructing a Multi-Storied Building. The Developer and the present Applicants executed a Memorandum of Understanding (MOU), in which the Developer allotted units for commercial purpose to the Applicants after receiving the full consideration amount and also agreed to pay monthly 'Assured Investment Return' to the Applicants till the proposed Retail and Office space is leased out. The Developer assured to give the possession of the units within 24 months from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certificate of recovery in favour of the Financial Creditor would give rise to a fresh cause of action to the Financial Creditor to initiate proceeding under Section 7 of IBC, 2016 for initiation of CIRP within 3 years from the date of Judgment/or Decree or issue of certificate of recovery if the dues of the Financial Creditor/Creditor under the Judgment or Decree or in terms of certificate of recovery or any part thereof remains unpaid 6.5. Since, the Respondent has failed to pay the debt in accordance with the Recovery Certificate issued by the District Magistrate, Gurugram., in view of the default committed by the Corporate Debtor, the present Application has been filed under Section 7 of IBC, 2016. The Applicants pressed for issuance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the District Magistrate is satisfied that any financial establishments have failed- (a) to return the deposit after maturity or on demand by the depositor; or (b) to pay interest or other assured benefit: or (c) to provide the service promised against such deposit; or (ii) where the District Magistrate has reason to believe that any financial establishment is acting in a calculated manner detrimental to the interests of the depositor, with intention to defraud them and if the District Magistrate is satisfied that such financial establishment is not likely to return the deposits or make payment of interest or other benefits assured or to provide the services against which the deposit is received, the District Magistrate may, in ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e raised in the present application has already been decided by this Adjudicating Authority vide order dated 09.06.2022 in IB-381/ND/2022. While dismissing the application, it was held by the Adjudicating Authority that there is no evidence on record to show that the money in question was in fact paid to present respondent out of the said agreement. Furthermore, section 4 of the Haryana Protection of interest of Depositors in financial Establishment Act, 2013 only empowers the District Magistrate to pass an order of attachment and not the order for recovery of money. It is further stated that the said judgment has been upheld by the Hon'ble Appellate Authority vide order 30.08.2022 in Company Appeal (AT) (Insolvency) No. 968 of 2022 Aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he cannot pass any order for recovery of the money. We have also perused the orders passed by the District Magistrate which clearly shows that an order of attachment has been passed in terms of Section 4 of the Haryana Act. In view of the aforesaid reasons, we are of the view that the Applicant has failed to make out a case under Section 7 of IBC, 2016. We accordingly dismiss the Application as not maintainable." 10. We would further like to refer to the order of the District Magistrate, Gurugram which has been relied upon by the Applicants. The relevant extract of the order dated 12.12.2018 is reproduced overleaf: 11. At this juncture, we would like to refer to the judgment of the Hon'ble NCLAT dated 30.08.2022 in Company Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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