TaxTMI 
TaxTMI 
TaxTMI 
2020 (8) TMI 642
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....t Corporate Debtor) had a running loan account with JMFARC, however it was under great financial stress due to heavy interest being charged by the JMFARC. The Corporate Debtor approached the Appellant and requested to look for any other Bank or NBFCS which can take over its loan account running with JMFARC. A Mandate/Agreement dated 09.03.2016 was signed between the Appellant and Corporate Debtor which provided that an amount of Rs. 57.5 Lakhs would be paid by the Corporate Debtor to the Appellant on successful sanction of loan. The Appellant got the loan approved in favour of the Corporate Debtor by Indiabulls. The Corporate Debtor agreed to terms of loan of Indiabulls and happily accepted the loan which was 10 % cheaper than its running loan account with JMFARC. The Appellant after, successful sanctioned of the loan raised an invoice on 30.04.2016 and demanded its professional fees from the Corporate Debtor, for the same on 21.05.2016 ten post-dated cheques were issued by Corporate Debtor in favour of the Appellant. Out of which 3 cheques were taken back by the Corporate debtor and against each cheque paid cash Rs. 5 Lakh. Two cheques become stale and 5 cheques weredishonoured. T....
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....en paid? And (iii) Whether there is existence of a dispute between the parties or the record of the pendency of a suit or arbitration proceeding filed before the receipt of the demand notice of the unpaid operational debt in relation to such dispute? If any one of the aforesaid conditions is lacking, the application would have to be rejected. Apart from the above, the adjudicating authority must follow the mandate of Section 9, as outlined above, and in particular the mandate of Section 9(5) of the Act, and admit or reject the Application, as the case may be, depending upon the factors mentioned in Section 9(5) of the Act." 9. The Hon'ble Supreme Court in the case of Mobilox Innovations Pvt. Ltd. (Supra) also held that at the stage of rejecting the Application what is the scope of enquiry in regard to any dispute raised by the Corporate Debtor which is as under: - "51. It is clear, therefore, that once the operational creditor has filed an application, which is otherwise complete, the adjudicating authority must reject the application under Section 9(5)(2)(d) if notice of dispute has been received by the operational creditor or there is a record of dispute in the informat....
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....he payment of Rs. 15 lakhs (fifteen) to the Appellant as shown in demand notice dated 23.10.2017. 11. We have considered the dispute no. (i) & (ii). Admittedly the mandate letter was signed by the parties on 9.3.2016. The genuiness of the copy of the emails filed along with the application has not been challenged by the Corporate Debtor therefore we have considered the emails filed by the Appellant.Sandeep Gupta (Mumbai), S.K.Agarwal (Director of KK Capital New Delhi) Abhishek Agarwal (ACA New Delhi& Gurgaon) represents the Appellant. Santosh Shetty, RakeshKashimpuria, represents the Corporate Debtor (Sristi Hospital) and Vaibhav Gupta, Rajeev Gupta, Devender Singh represents the Indiabulls. 12. To appreciate the facts it will be fruitful to refer the emails exchanged between the parties. The mandate letter was signed by the parties on 9.3.2016 whereby the Appellant Company is engaged for availing the loan facility for the Corporate Debtor. 13. The factual position of email exchanged between the parties are as under: Date Sender Recipient Particulars Page No. of Appeal Paper Book 10.3.2016 Santosh Shetty Sandeep Gupta photos of brands occupying the premises at liberty ....
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.... 2.5.2016 Sandeep Gupta Santosh Shetty Appellant informed that he has sent the invoices to the Corporate Debtor and requested to remit the fee ASAP. 133 11.5.2016 Sandeep Gupta Santosh Shetty Appellant emailed to Corporate Debtor to meet and to confirm that loan amount by Indiabulls would be disbursed by 13.5.2016. 134 14. With the above facts it is clear that the Appellant has actively rendered his services in availing the loan facility from Indiabulls. It is also clear that emails on record are between Appellant and Indiabulls, therefore the contention of the Corporate Debtor is not acceptable that Appellant has not played any role in availing the loan facility from Indiabulls. 15. For deciding the dispute no.(iii) we have gone through the mandate agreement dated 9.3.2016 which is an admitted document and the terms and conditions of services rendered by the Appellant is explicitly written. In this agreement in clause 4 break up of services and the scope of services provided by the Appellant is mentioned in detail. Clause 4 (f) provides that obtaining appropriate sanction from bank/NBFC. In this agreement it is nowhere mentioned that the Appellant will organise funding....
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....On 02.05.2016 Vaibhav Gupta (Indiabulls) sent an email to Rakesh (Corporate Debtor) the email is as under:- (see page 130 of Appeal Paper Book) "Dear Rakesh, As advised earlier, we, indiabulls have approved the takeover of the JM Facility availed by Mr. Shetty for Sristi Hospitality and the same stands sanctioned/Approved from our committee. As discussed with Mr. Shetty, we shall be looking at the takeover of this either by the 6th of this month or by the following Monday, 9th May 2016, subject to our legal clearance which should take another 2-3 days. I thus request your team to have a meeting with Mr. Shetty and provide us with the final revised FC Amount/letter in concurrence with Mr. Shetty. Regards, Vaibhav Gupta" 20. Thereafter 11.05.2016 Sandeep Gupta sent an email to Santosh Shetty (Corporate Debtor) "we have sent invoices to you and request you to remit our fee asap". 21. Thus, we find no substance in the dispute raised by the Corporate Debtor that the invoices were issued much prior to the actual sanction of loan by Indiabulls. It is also pertinent to note that when the Appellant has raised invoices then Corporate Debtor has asked the Appellant about the ....
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....orate Debtor were never presented for encashment poses a serious doubt whether the cheques were for payment for services provided by the Operational Creditor or not. b. Appellant in form No. VI says that seven cheques were issued and only a payment of Rs. 2 lakhs has been received whereas, in the rejoinder, Appellant submits that ten cheques have been received out of which three have been cleared two were not deposited and five were dishonoured. It is seems that the appellant is not clear regarding the debt to be claimed and kept on changing it is stance time and again. c. Appellant stated in demand notice that 15 Lakhs have been received, however, there is no mention of this receipt of payment in form no. (V) annexed to the Application. d. The Appellant did not deposit three cheques is unacceptable as no sane person would wait for 9 months to deposit the cheques for their clearance. e. The claims made by the Appellant do not corroborate to its own financial statements for the financial year 2016-17. Therefore, it can be noticed that the present case in hand clearly falls under the dispute as to the existence of amount of debt. 27. First of all, none of these discrepa....