TaxTMI 
TaxTMI 
2020 (5) TMI 35
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.... made as per registered agreement Details of payment as per memorandum of Agreement Regd. Doc. No.1004/2014 dated 03-2-2014 Registered with Sub Registrar Office Thiruvallur Sunshine Rainbow Block Flat No. 401, 402, 403, 405, 408 Rs. 10, 00, 000 by cheque no.000386 dated 11-1-2014 drawn on HDFC Bank, Rs. 3, 37, 500 by cheque no. 001640 dated 22-6-2018 drawn on HDFC Bank, Cash of Rs. 27, 500 paid on 25-3-2014 Rs. 2, 00, 000/- mentioned and confirmed in agreement and Rs. 5, 00, 000/- paid 25-3-2014 2. It is further brought to the notice of this Tribunal that by way of an Application filed by the Operational Creditor viz., M/s. IJM Concrete Products Private Limited under section 9 of the I&B Code, 2016, CIR Process against M/s. P Dot G Constructions Private Limited was initiated on 13-7-2018 and that the claim was lodged in Form CA as already brought forth on 23-10-2018 and the Resolution Professional acknowledged the said lodging of the claim by an email dated 13-11-2018. From the averments, it is seen that the claim has been made in respect of property situated in the project titled 'Sunshine Rainbow Block'. 3. It is also seen from the averments made in the Applicati....
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.... in the Reply. As to the claim made by the Applicant, it is stated by the Resolution Professional though the Applicant has lodged the claims in Form CA as a Home Buyer even though the Applicant cannot be construed as Financial Creditor coming under the category of Home Buyer. Any motives as sought to be attributed by the Applicant against the Resolution Professional is also denied by the Resolution Professional and the allegations that the Resolution Professional is acting mala fide, biased and against the interest of the Home Buyer are made without any basis or a shred of evidence against the Resolution Professional. In the said circumstances, the Resolution Professional has prayed that the Application deserves to be dismissed and also seeks to bring the transactions as alleged in the Application within the fold of section 66 of I&B Code, 2016 as fraudulent trading. 6. To the above Reply as elucidated, a Rejoinder from the Applicant has been filed wherein the Applicant has sought to file the email correspondences as exchanged between the Applicant and the Resolution Professional in view of the Claim as covered under the Application, The act of the Resolution Professional in commu....
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....edule of property in the said registered documents. In addition, Memorandum of Agreement as entered into between the parties dated 25-3-2014 is also sought to be relied on by the Applicants to establish that the monies which are figuring in the respective Sale Agreements or Memorandum of Agreements have been duly paid to the Corporate Debtor, and in the said circumstance, the Claim cannot be rejected and that all the payments which are also extracted hereinabove by way of tabulation in Para supra are in relation to the purchase of properties, and hence, it is appropriate that the Applicant should be categorised as 'Home Buyer' and that the Resolution Professional was wrong in not entertaining the Claim as filed under Form CA meant for the Home Buyers. 10. It is further pointed out by the Learned Counsel for the Applicant that from the fact of acknowledgement in the registered document of the payment wherein the Corporate Debtor had clearly disclosed that the sums as reflected therein have been paid. Further, the payment made by way of cash as evidenced by Cash Receipt enclosed for a sum of Rs. 27, 500 dated 25-3-2014 in relation to the said property had also been got remit....
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....he Applicant is the Director of M/s. Tatia Developers (P) Ltd. from which the payment has been made. In the circumstance, the payment made from the Company namely M/s. Tatia Developers (P) Ltd. is to be considered as payment made by the Applicant itself. However, from a perusal of the records as available before this Tribunal, it is seen that no shred of evidence has been produced to the effect that the Applicant is the Director of M/s. Tatia Developers (P) Ltd., even assuming that the Applicant is the Director of the said entity, no Board Resolution to the effect authorizing the Applicant to purchase the properties, or the financial statements or Income-tax Returns for the relevant years have been produced to sustain the plea. Unless necessary proof evidencing the claim backed by documents particularly in relation to the transaction of which the Resolution Professional is required to deal with being prior to the initiation of CIR Process and hence to be established without any iota of doubt it becomes virtually impossible and acceptable for the claim to be admitted. The onus is on the Applicant being the one before this Tribunal in clinching with irrefutable proof to establish the....