TMI Blog2023 (9) TMI 140X X X X Extracts X X X X X X X X Extracts X X X X ..... had attached copies of their passbook of Canara Bank which clearly shows that there was a direct disbursal to the Corporate Debtor and there is no denial on that count by the Corporate Debtor. It is trite law that under the IBC once a debt which becomes due or payable, in law and in fact, and if there is incidence of non-payment of the said debt in full or even part thereof, CIRP may be triggered by the financial creditor as long as the amount in default is above the threshold limit. It is also well accepted that debt means a liability in respect of a claim and claim means a right to payment even if it is disputed. There is sufficient material on record to prove that there was disbursal of funds by Respondent No.2 to the Corporate Debtor in their account. Admittedly, the amount so disbursed is Rs.1.90 crore. The bank transaction details were made a part of Part IV before the Adjudicating Authority - the submission advanced that Corporate Debtor was not required to repay Respondent No.2 does not inspire our confidence as it is a mere assertion not supported by evidence. Clearly the CoC had decided in the 3rd CoC meeting after considering all facts and circumstances that it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... For the Appellant : Mr. Mansumyer Singh, Mr. Shravan Chandra Shekhar, Advocates For the Respondents : Mr. Sunil Kumar Jain, Advocate For R-2 3 Ms. Priyanka Chouhan, Liquidator For R-1 JUDGMENT [Per: Barun Mitra, Member (Technical)] Present is a set of four appeals filed under Section 61 of Insolvency and Bankruptcy Code, 2016 ( IBC in short) by the Appellant which arises out of two orders dated 01.11.2021 and 04.08.2022 (hereinafter referred to as first and second impugned orders ) passed by the Adjudicating Authority (National Company Law Tribunal, New Delhi) in CP(IB) No. 354/2021 and related IAs. Aggrieved by the said impugned orders, the present appeals have been preferred. 2. The brief facts of the case which are necessary for deciding this appeal are as outlined below: - The Corporate Debtor M/s Drishti India Limited ( Drishti in short) had entered into a Development Agreement ( DA in short) with SAJ Housing Private Limited ( SHPL in short) on 29.05.2012. The DA was for development of a piece of land for a housing society. The sole ownership of the land was with the Corporate Debtor. As per terms and conditions of the DA, SHPL as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plication for liquidation of the Corporate Debtor. SHPL filed its claim before the Resolution Professional on 25.02.2022 for an amount of Rs.148,33,59,926/-. The claim was not accepted by the Resolution Professional on 28.02.2022 on the ground of being time- barred. SHPL filed IA No. 1447/2022 in CP(IB) No. 354(PB)/2021 on 04.03.2022 against rejection of their claim by the Resolution Professional on the ground that their claim was within time as the Adjudicating Authority had excluded 57 days from the CIRP period because of the interim stay granted by this Tribunal. Pursuant to 3rd CoC deliberations, the Resolution Professional filed IA 960/PB/2022 in CP(IB) No. 354(PB)/2021 on which the Adjudicating Authority ordered liquidation of the Corporate Debtor on 04.08.2022 hereinafter referred to as the second impugned order . Vide the second impugned order, the Resolution Professional was appointed as the Liquidator and IA 1447/2022 filed by SHPL was disposed of by giving them an opportunity to make their claim before the liquidator. The other reliefs sought by SHPL regarding revival of CIRP was held as not surviving any longer in view of the approval of the liquidation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Corporate Debtor which has been relied upon by Respondent No.2 to claim that the Corporate Debtor owed a debt to them shows the alleged amount under the head of Long-term borrowings with the sub-head of Security Deposit - (Under Development of Land Agreement) . This entry in the balance sheet does not establish the jural relationship of debtor and creditor between the Corporate Debtor and the Respondent No.2. Hence, the consideration amount does not fall under the definition of financial debt under Section 5(8) of the IBC. In the absence of any contract or understanding fastening any liability upon the Corporate Debtor, the filing of Section 7 petition by Respondent No.2 was an abuse of the process of law. 6. Emphasizing that the key feature of financial transaction as postulated by Section 5(8) of the IBC is consideration for time value of money, this feature is glaringly amiss in the transaction of Rs.1.90 crore made by the Respondent No.2. Moreover, the Respondent No.2 has failed to produce any document that discloses the nature of transaction to be a loan carrying any interest. Under such circumstances, it cannot be claimed that there was a time value of money and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Having never objected to the constitution of CoC and having never participated in the said meetings, they cannot claim entitlement to challenge the decision of the CoC to initiate liquidation proceedings with 100% vote share. The CoC having applied its commercial wisdom and proposed liquidation, the CIRP having been concluded and liquidation proceedings under Section 33(2) of the IBC having commenced, the appeal has become infructuous by efflux of time. CA (AT) (Ins.) No.967/2021 10. It is contended by Learned Senior Counsel of Corporate Debtor that there was no demand of money made by the Corporate Debtor on Respondent No.2. Neither was any agreement/ document executed with Respondent No.2 with regard to the transaction of Rs.1.90 crore. It was also submitted that there was no consent or agreement on the payment of any interest on the alleged deposit. The said money was not utilized by the Corporate Debtor for its own advantage or earnings. Moreover, the deposit being in the nature of non-refundable security deposit having no commercial effect of borrowing, it cannot be treated as debt amount. Respondent No. 2 does not fall under the definition of Financial Creditor unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id to the Corporate Debtor for development rights cannot in any manner be considered as financial debt. Furthermore, the Respondent No.2 had acknowledged in their letter dated 26.03.2012 addressed to the Corporate Debtor that the payment was made under an agreement to develop 10 acres of land. Hence the amount paid by the Respondent No. 2 was not a credit given to the Corporate Debtor but a consideration amount under the DA which was to be executed between Corporate Debtor and SHPL. Hence even if any liability arose, it was against SHPL and not against Corporate Debtor. 14. It was also contended that even the balance sheet entries do not reflect time value of money as it is captioned security deposit for development of land which is non-refundable. This clearly shows that it was merely security deposit and not in the nature of a debt which is subsisting or presently due. It was stoutly denied that this amount had been given to them as credit with interest rate of 24% for if it was so there would have been a separate agreement to that effect. It was therefore contended that the application under Section 7 of the IBC to initiate CIRP is an abuse of the process of law which has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trying to reopen the issues at a belated stage. Moreover, it is the commercial wisdom of CoC whether to continue with CIRP or to liquidate the company. Once the CIRP has been concluded, the wisdom of CoC cannot be questioned. Moreover, when the CoC has resolved to liquidate the company, the Resolution Professional has no other option but to move an application under Section 33 of IBC for liquidation of the Corporate Debtor. CA(AT)(Ins.) No.1093 of 2022 19. It has been submitted by the Learned Senior Counsel of SHPL, that they were approached by the Corporate Debtor with the proposal of developing a land for a housing society. For this purpose, a DA was entered into in 2011 with the Corporate Debtor with 56% ownership rights to SHPL in the built-up area. A total consideration amount of Rs.16.15 crore was paid by SHPL and other constituents which also included their share of Rs. 10 crore in lieu of which the possession of land with irrevocable development rights was to vest with SHPL with all authority from the Corporate Debtor. It is submitted that the Corporate Debtor admitted the consideration amount to be an unsecured loan under the heading of long-term borrowing in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oC therefore failed to abide by the timelines of CIRP and frivolously passed the resolution to liquidate the Corporate Debtor. 22. Refuting the above contentions made on behalf of SHPL, the Learned Senior Counsel of Respondent No.1 submitted that the Resolution Professional had not only issued a public announcement but email was also sent to SHPL on 09.11.2021 and 17.11.2021 to hand over possession of the land given to them and file their claim respectively. Hence SHPL was fully aware of the CIRP proceedings. However, they remained silent and did not file their claim within the prescribed time. Therefore, the Resolution Professional rejected the claim since SHPL was not vigilant in filing the claim on time within the statutorily prescribed period. 23. On the stance taken by SHPL that the Adjudicating Authority having excluded 57 days from the CIRP period and hence the claim filed by them on 25.02.2022 was much on time, it was contended that by then the CoC had already approved the liquidation of the Corporate Debtor and hence the claim could not have been accepted by the Resolution Professional. In any case the SHPL was in no ways restrained from filing their claim even durin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od. Such acknowledgment can be by way of statement of accounts, balance sheets, financial statements and offer of one-time settlement. 12. In the present case all the requirements are established. The copy of the passbook of Canera bank annexed by the applicant at page 35 of the paper book shows that the withdrawal of Rs. 1.90 crores i.e., disbursal of the debt amount was made on 20.12.2011. The applicants had considered this amount as the loan given to the respondent which is reflected in the Balance Sheet as on 31.03.2020 at note 3 page 50 under the head note of Long term borrowing . 13. This Bench is not satisfied with the arguments of the respondent with respect to the security deposit paid by the applicant to the respondent under the heads of long-term borrowing for development of the Land Agreement reflected in the Balance Sheet. It is nowhere proven by the respondent in the absence of any document how it is considered as the security deposit which is non-refundable to the applicants. 14. Therefore, there is an acknowledgment of debt by way of entries passed in the balance sheets, financial statements. The Respondent has defaulted in the repayment of the amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uce any document that discloses the nature of transaction to be a loan carrying any interest. Their letter of 26.03.2012 also does not indicate any terms in the nature of interest, refund, repayment or enhancement in the value of money is stated to be paid. Under such circumstances, it cannot be claimed that there was a time value of money. The Learned Senior Counsel for the Corporate Debtor has relied on the judgment of this Tribunal in Nikhil Mehta and Sons v. AMR Infrastructure Ltd. 2017 SCC OnLine NCLAT 859 ( Nikhil Mehta in short) to emphasize that the key feature of financial transaction as postulated by Section 5(8) of the IBC is its consideration for time value of money which is lacking in the present case. It has also been denied by the Corporate Debtor that any directorship was offered to Respondent No.2. 30. The Learned Senior Counsel for the Respondent No. 2 vehemently contesting the above arguments submitted that the entire amount of Rs 1.90 crores has been paid directly to the bank account of the Corporate Debtor by RTGS on 20.12.2011. Secondly it was pointed out that the claim of the Corporate Debtor that the payment was done in pursuance to the DA is misconceive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion utility or other evidence produced by the financial creditor to satisfy itself that a default has occurred. It is of no matter that the debt is disputed so long as the debt is due i.e. payable unless interdicted by some law or has not yet become due in the sense that it is payable at some future date. It is only when this is provedto the satisfaction of the adjudicating authority that the adjudicating authority may reject an application and not otherwise. 33. Viewed against this broad backdrop, we now dwell upon the facts of the present case to find out whether in this case debt was due and payable. There is sufficient material on record to prove that there was disbursal of funds by Respondent No.2 to the Corporate Debtor in their account. Admittedly, the amount so disbursed is Rs.1.90 crore. The bank transaction details were made a part of Part IV before the Adjudicating Authority. In addition, balance sheet of the Corporate Debtor also acknowledged receipt of this disbursal as long-term borrowings . Neither has any claim been made that any part of this sum was repaid by the Corporate Debtor. That being the case there arises no doubt in our mind that there was a debt o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent No.2 and the Corporate Debtor for payment of interest though it is claimed by Respondent No.2 that the loan was given to the Corporate Debtor on an assured interest of 24% interest per annum. We also cannot be oblivious of the fact that while seeking stay of the first impugned order, the Corporate Debtor had agreed before the Appellate Authority to pay a reasonable amount of interest. The relevant order of this Tribunal dated 25.11.2021 is reproduced below: - Learned Counsel for the Appellant submits that he accepts that Respondent Nos. 1 and 2 had given the amount of Rs. 1.9 Crore and he is ready to return their amount with reasonable interest. To show his bonafide let the Appellant deposit an amount of Rs. 3 Crores by way of Demand Draft of a Nationalized Bank before the concerned Adjudicating Authority within one month. After deposit of the amount, let an Affidavit along with the photocopy of the demand draft be placed before this Tribunal. 2. List the Appeal on 10.01.2022. In the meantime, no further proceedings shall take place in pursuance of the impugned order. However, we also notice that the Corporate Debtor later took a stand that it never made a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmitted an error in admitting the Corporate Debtor into CIRP for having defaulted in repaying a financial debt which was above the threshold and within limitation of time. 39. This brings us to the next question as to whether the Adjudicating Authority erred in affirming the proposal of the CoC to liquidate the Corporate Debtor. It has been contended by the Learned Senior Counsel of SHPL that the CoC had rushed into liquidation within 38 days of commencement of CIRP. The Learned Senior Counsel for the SHPL submitted that this Tribunal in Nikhil Tandon (Supra) had set aside the order initiating liquidation on the ground of material irregularity when the CoC had hurriedly pushed for liquidation. The CoC in the present case failed to abide by the timelines of CIRP and frivolously passed the resolution to liquidate the Corporate Debtor. The Adjudicating Authority by approving the same acted against the objective of IBC which is to provide an enabling climate for timely resolution and revival of the Corporate Debtor. Further, the CoC by sending the Corporate Debtor abruptly into liquidation, the intent was clearly to sell off the sole asset of the Corporate Debtor and utilize the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 33(2), empowers the CoC to decide to liquidate the Corporate Debtor any time even before the confirmation of the Resolution Plan. 43. At this stage it may be useful to note the contents of the agenda item No.3 of the 3rd CoC meeting which is as follows: Agenda Item No.3- To discuss and approve the liquidation of the corporate debtor in accordance with Section 33(2) of the Insolvency and Bankruptcy Code, 2016 and to approve filing of liquidation application under Section 33 of Insolvency and Bankruptcy Code, 2016. It is submitted that Corporate Debtor has only one major asset i.e Freehold Land of about 10 acres at Sector 39, Village Lakkarpur, Faridabad. Presently, there are no operations of the company and there have been no operations for at least last 4 years (the RP has the financial statements since FY 2018). Also, from the financial statements it appears that the Corporate Debtor does not have any employee. Further, from the available records, it appears that company entered into a development agreement with SAJ Housing Pvt. Ltd. in 2012 (the Developer) and no development has taken place since then on any application of the Corporate Debtor Developer to convert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Thus, to answer the second issue before us, we are of the considered view that keeping in mind the limited powers of judicial review available to the Adjudicating Authority, in the given facts of the case, the Adjudicating Authority has not committed any error in ordering the liquidation of the Corporate Debtor as decided by the CoC with 100% vote share. 47. Now that we have decided the first two issues, we come to the third issue as to whether there is force in the contention of SHPL that they should have been treated as Financial Creditor and that not having taken place, CIRP should be started afresh with a newly constituted CoC. 48. It is the contention of SHPL that the payment made by them to the Corporate Debtor was identical in nature to the payment made by the Respondent No. 2 as both the payments were under the DA to develop the land of the Corporate Debtor. The audited financial statements of the Corporate Debtor also treated the payments made by SHPL and Respondent No.2 in a similar manner as unsecured loan under the heading of long-term borrowing in the balance sheet and these entries in the balance sheet have not been disputed by Respondent No.2. 49. We do n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le their claim within the prescribed time. The publication in the newspapers not having been denied by SHPL is ample proof that wide publicity was caused to invite claims. SHPL was also sent a written email by the Resolution Professional to submit claims which has also not been controverted. Nothing prevented them from filing their claims but instead they chose to adopt a wait and watch strategy. Moreover, it has been admitted by SHPL themselves that to begin with they had filed their claim in Form B as an Operational Creditor and not as Financial Creditor. Thus, having failed to file their claim in the appropriate format and in a timely manner due to their own negligence, they should be ready to suffer the consequences of late and improper filing. The bonafide of the Resolution Professional is also established by the fact that even when the statutory period prescribed for submission of claim had expired, the Resolution Professional had advised them in their email dated 28.02.2022 to seek condonation of delay from the Adjudicating Authority as they had no power to condone such delay with respect to their delayed claim as is reproduced below:- From: Priyanka Chouhan drishti.cir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , having heard the parties and taking cognizance of their submissions and pleadings, the Adjudicating Authority had approved the liquidation of the Corporate Debtor. At this stage, we refer to judgment of this Tribunal in CA (AT) (Ins.) 296/2022 in Rakshit Dhirajlal Doshi v. IDBI Bank Ltd. which has been relied upon by Learned Senior Counsel for the Respondent No.2 wherein it has been held that admission of the Corporate Debtor into CIRP is not maintainable once the final order for proceedings under the liquidation have already been passed by the Adjudicating Authority. Further, we also notice that SHPL has been allowed by the Adjudicating Authority in the second impugned order to file claim before the liquidator. 55. Thus, to answer the third issue before us, we are of the considered view that in the given facts and circumstances of the case, SHPL cannot be accorded the status of Financial Creditor and therefore the prayer of SHPL to reconstitute the CoC does not merit consideration. Further, since the Adjudicating Authority has already approved the liquidation and allowed SHPL to file its claim, we are satisfied that the interests of SHPL have not been put to prejudice. 56. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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