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TMI Blog2022 (5) TMI 1480X X X X Extracts X X X X X X X X Extracts X X X X ..... th Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 through its Authorized Representative, Mr. Anil Malhotra with a prayer to initiate the Corporate Insolvency Resolution Process against M/s. Par Excellence Real Estate Private Limited (hereinafter referred to as the 'Corporate Debtor/Respondent'). 2. The Corporate Debtor namely, M/s. Par Excellence Real Estate Private Limited with CIN: U70200DL2014PTC271234 is a Company incorporated on 03.09.2014 under the provisions of the Companies Act, 2013, having registered office at DSC-319, DLF, South Court, Saket New Delhi 110017, which falls within the jurisdiction of this Tribunal. 3. The Operational Creditor has submitted that the Corporate Deb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to the tune of Rs. 20,00,000/- (Rupees Twenty Lacs Only) and deposited an amount of Rs. 1,00,000/- (Rupees One Lacs Only) towards TDS deducted on payment made to the Operational Creditor. However, the Corporate Debtor has failed to make the payment towards the balance amount of Rs. 36,25,000/- (Rupees Thirty Six Lacs Twenty Five Thousand Only). 5. The Corporate Debtor sought certain period of time from the Operational Creditor to make payments towards the pending amounts and the Operational Creditor agreed to the same because of their professional relationship but the Corporate Debtor failed to make the requisite payments. 6. That on 12.11.2019, an e-mail was received from Mr. Kuldeep Sharma, representative of Corporate Debtor for con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertinent to mention that no reply to the demand notice dated 31.01.2020 was received by the Operational Creditor. 10. There is no notice of pre-existing dispute or payment of debt, as contemplated under the Code, which has been received by the Operational Creditor. Hence the present petition. 5. That the detailed particulars of the Operational Debt as provided by the Applicant in Part IV of the Application are reproduced below: 6. That the Operational Creditor has submitted that the Corporate Debtor made a part-payment of Rs. 20,00,000/- only against the debt due and payable and failed to repay the balance amount of Rs. 36,25,000/-. Under the circumstances, it was constrained to issue a Demand Notice dated 31.01.2020 under Section 8 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Balance Sheets. 11. That while examining the Balance Sheet of the Corporate Debtor for the year 2017-18 for the purpose of computing the Limitation, we came across the following disclosure made by the Corporate Debtor regarding the Related Party Transactions: 12. That from perusal of the aforesaid disclosure at Sl. No. 4 of the Related Party Transactions in the Balance Sheet of the Corporate Debtor, it has emerged that the Applicant Company i.e., Zoom Communication Private Limited is a "Related Party" to the Corporate Debtor i.e., Par Excellence Real Estate Pvt. Ltd., by virtue of both the Companies having common Directors. 13. However, from the pleadings on record, we notice that neither the Applicant nor the Corporate Debtor has r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i (DIN: 00209894) and the Invoice raised by the Applicant, it is evident that Sh. Gulshan Kumar Jhurani (DIN: 00209894) was Director in both the Corporate Debtor as well as the Applicant Company on the date when the invoice under reference was raised and when the default had occurred. 19. Hence, it is clear from the aforesaid analysis that both the Applicant Company, which has claimed the operational debt based on an invoice for a loan procured for the Corporate Debtor and the Corporate Debtor against whom the Applicant is seeking to initiate CIR Process were having common Director namely, Mr. Gulshan Kumar Jhurani (DIN: 00209894). By way of visiting the records at the MCA Website and on piercing the corporate veil, it is clear that not on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not been filed for the resolution of Insolvency rather, the parties have attempted to kick start the CIR Process with a malicious intent for a purpose other than the resolution of insolvency of the Corporate Debtor, which is not permissible under the IBC 2016. As per the Code, if any person [as defined under Section 3(23) of IBC] initiates the Insolvency Resolution Process fraudulently or with malicious intent for any purpose other than for the resolution of the insolvency, or liquidation and such an act is punishable under Section 65 (1) of IBC 2016. Hence, before taking any action under Section 65(1) IBC 2016, we think it proper to issue a show cause notice, under Rule 59 of the National Company Law Tribunal Rules 2016, to M/s. Zoom Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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