TMI Blog2023 (10) TMI 234X X X X Extracts X X X X X X X X Extracts X X X X ..... and conditions the appellant was rendering liaison services to the CD or its unit. Moreover, once the Adjudicating Authority has noticed that MOUs which were brought on record before the NCLT by the appellant were forged one, in that event the whole claim of the appellant was required to be rejected and has rightly been rejected. Considering the order impugned passed by the learned Adjudicating Authority wherein the MOUs placed on record by the appellant before the Adjudicating Authority were treated as if they were forged one, in normal course it was required on the part of the Adjudicating Authority to direct for conducting enquiry/investigation while exercising powers under Section 340 of CrPC - It is opined that if any party brings on record any forged documents for getting unlawful benefit on the judicial side it would be necessary for the concerned Court to exercise its jurisdiction for examining the entire issue by entrusting same to investigating agency. In any event such act of either party may not get any lenient approach by the concerned Court. While approving the impugned order passed by the learned Adjudicating Authority,it is deemed appropriate to remit back th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt the RP failed to change the status of the claim of the appellant, he filed an application vide IA 3665/2020 in CP No. IB/1771(ND)/2018 under Section 60(5) of the IBC. However, by the impugned order Learned Adjudicating Authority has rejected the same. At this juncture we feel it appropriate to reproduce the impugned order dated 06.11.2020 as follows: 1.The Counsel for the Applicant is present. The Ld. Counsel for the RP is present. Heard the final submissions made by the Learned Counsels on behalf of the rival parties. 2. The challenge under the Application is with regard to the reduction of the claim of the Applicant from Rs. 5.20 Crores (Rupees Five Crores Twenty Lakhs) to Rs. 30 Lakhs (Rupees Thirty Lakhs). The Counsel for the Applicant submitted that the claim of the Applicant is based on the Letters) of Allotment/MoUs dated 07.06.2017, 01.10.2017, 01.7.2018 and 01.10.2018 (Two MoUs). In other words, five MoUs were entered into between the Applicant and the CD. 3. In relation to MOU dated 01.10.2017, two units were allotted and one more unit was allotted in relation to the MoU dated 01.10.2018 to the Applicant as one set of arrangement. The second set of arrang ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is further brought to our notice by the Counsel for the RP that when invoices are raised payments towards Service Tax is to be made and duplicates are retained. But applicant failed to provide the duplicate and proof of payment of Service Tax. It is further submitted by the counsel for the RP that the invoices are stated to have been raised at the instance of the Petitioner and he cannot deny the existence of the duplicate invoices and the payment of Service Tax. 7. During the course of hearing, this Authority has raised the query as to whether the Petitioner is a proprietor of any firm through which the services of Consultancy and liaising were provided to the CD and its group companies. The answer given by the Ld. Counsel for the Petitioner was in negative, he stated that the Applicant is an individual. 8. It is noted that the verification of claim carried out by the RP about the claim of the Applicant on the basis of the record of the CD is correct, as the payment made by the Applicant to the CD is Rs.30 Lakhs only (Rupees Thirty Lakhs Only), which is mentioned in preceding paragraphs. The Allotment Letter(s)/MOUs, and cheques under which 10 units seem to have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions has also taken us to running page 226, 227 and 230 to show that in the modified list of creditors (financial debt) home buyers dated 19.3.2020 of Dream Procon Pvt Ltd (CD) units/flats in respect of appellant were incorporated. According to the learned counsel for the appellant the agreements/MOUs were sufficient to accept the claim of the appellant. However, ignoring those things the RP has reduced the claim from Rs.5.20 crores to Rs.30 lakhs which has incorrectly been not approved by the Adjudicating Authority and erroneously the application filed under Section 60(5) was rejected. Learned counsel for the appellant has also drawn our attention to some of the MOUs particularly running page 68, 78, 127 and other copy of MOUs which have been placed alongwith the Memo of Appeal in Volume I. He has further shown running page 74 Volume I of Memo of Appeal i.e. copy of receipt dated 1.10.2017 which reflects as if Rs. 95 lakhs was received by the CD from the appellant towards payment against Unit No.D2-0001 and D2-0701 of 2295 sq ft each in Victory Ace situated at Plot No.GH-02, Sector -143B Expressway, Gautam Budh Nagar, Noida. However, at the time of argument it was admitted by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsultancy and liasoning for various projects for which the company has to pay an amount of Rs. 95,00,000/- (Rs. Ninety-Five Lakhs only). Balance amount Rs. 25,00,000/-is being paid by cheque as details given below:- . 4. In order to assure the second party and to secure the interest of the Second party, the following postdated cheque for Rs. 1,20,00,000/- (Rupees One Crore twenty lakh only) has been issued by the first party. . 4. That the Corporate Debtor had also issued post-dated cheques for the interest amount in favor of the Appellant along with cheques of the principal amount. The said cheques were dishonored and hence the amount due was not settled. The corporate Debtor also availed additional payment from the Appellant in order to bridge the difference between the actual price of the units and the outstanding amount due and payable. 5. That an order dated 15.10.2019 was passed by the Hon'ble NCLT in (IB) 1771/ND/2018 for initiation of the insolvency process and the claims for the abovementioned units were filed by the Appellant. That the claims of the Appellant were admitted by the IRP and was also give voting rights, but later on, the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the books of the Corporate Debtor and has applied discriminatory yardstick when the claim of the Appellant is to be considered. 3. It is also humbly submitted that all the documents that have been executed by the corporate debtor including the Memorandums of Understanding and Builder-Buyer Agreements have been placed on record by the appellant which significantly proves the claim of the appellant and there is no question of taking any other inference. It is submitted that these documents are undisputed. 4. It is undisputed that the corporate debtor has issued cheques in favour of the Appellant in discharge of his liability to secure the amount. Appellant humbly submits that as per section 139 of the Negotiable Instruments Act, 1881, it is presumed that whenever a cheque is issued it is in discharge of any debt or other liability. Section 139 reads as under: - 139. Presumption in favour of the holder.- It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, in whole or in part, of any debt or other liability. Thus, the amount claimed for which cheques were issued is a debt . Reliance in this regard is placed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bitrary and excessive usage of power on part of the Resolution Professional even when he was given all the proofsto substantiate the claim. In Mr. S. Rajendaran, Resolution Professional of PRC International Hotels Private Limited V/s Jonathan Mouralidarane, CA (AT) (Ins)1018/2019, the Hon'ble NCLAT held that we are of the opinion that the Resolution Professional had no jurisdiction to determine the claim as pleaded in the Appeal. He could have only collated the claim, based on evidence and the record of the 'Corporate Debtor' or as filed by Jonathan Mouralidarane (Financial Creditor). In Mr. Navneet Kumar Gupta (RP of Monnet Power Company Limited) Vs. Bharat Heavy Electricals Limited (Company Appeal (AT) (Insolvency) No. 743 of 2018) The Mumbai Bench of NCLT by impugned order dated 12th October 2018 held that the RP has wrongly disallowed the substantial claim in its entirety and directed the RP to re-examine the claim on the basis of the accounts and evidence of BHEL and if the evidence corroborated the claim, the same should also be taken into account while finalizing the total claim of BHEL. The RP being aggrieved preferred this appeal before the N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rores. Further, the Appellant failed to produce any consultancy agreement executed or any request letter from the Corporate Debtor in that regard. MOUs executed between the Appellant and the Corporate Debtor has no mention of any invoices raised by Appellant. Without prejudice, the Appellant alleged hat due to failure of the Corporate Debtor to make the payment towards the invoices raised, the Corporate Debtor agreed to allot the flats in lieu of the outstanding liability towards the Appellant, however, the same does not entitle the Appellant to claim the amount pending qua services from Answering Respondent in the capacity of Financial Creditor/Home buyer and that at the most in that case his claim could have been of an operational debtor. It is also submitted without prejudice that the Appellant has failed to produce any claimants, details etc. of the work alleged to have been done by him for the CD. He has also failed to give the details as to what liaisoning work he did for the CD, what disputes he helped in settling with customers. Of course rejoinder has also been filed but allegations regarding self generated invoices has not been specifically denied. 7. Mr. Alok Dhi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... MOUs placed on record by the appellant before the Adjudicating Authority were treated as if they were forged one, in normal course it was required on the part of the Adjudicating Authority to direct for conducting enquiry/investigation while exercising powers under Section 340 of Cr P. We are of the opinion that if any party brings on record any forged documents for getting unlawful benefit on the judicial side it would be necessary for the concerned Court to exercise its jurisdiction for examining the entire issue by entrusting same to investigating agency. In any event such act of either party may not get any lenient approach by the concerned Court. 10. While approving the impugned order passed by the learned Adjudicating Authority, we think it appropriate to remit back the matter to the Adjudicating Authority with request to exercise its jurisdiction under Section 340 of Cr PC in respect of alleged MOUs, regarding which observation has been given by the Adjudicating Authority as if those documents appeared to be fraudulent one. 11. With above observation the appeal stands dismissed. 12. Let a copy of this order be sent to the Adjudicating Authority/ National Company Law ..... X X X X Extracts X X X X X X X X Extracts X X X X
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