TaxTMI 
TaxTMI 
2020 (8) TMI 642
X X X X Extracts X X X X
X X X X Extracts X X X X
....he Siristi Hospitality Pvt. Ltd. (In short 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 beco....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tion shows that the aforesaid debt is due and payable and has not yet been 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 h....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ssued by Corporate Debtor in order to organise unsecured loan for the Corporate Debtor. vii. The Corporate Debtor also denied the 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 R....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nt informed the same to the Corporate Debtor. 127 30.4.2016 Sandeep Gupta Santosh Shetty Appellant after sharing the final terms of the credit facility and confirmation from Indiabulls raised invoice for the services provided by it as per mandate letter dated 9.3.2016. 129 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 A....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he mandate letter. Hence, two invoices were prepared and by hand delivered to Corporate Debtor's Office by Sandeep Gupta. (Seeemail page 131 of Appeal paper book) Therefore it may be correct that above referred invoice dated 30.04.2016 was never delivered to the Corporate Debtor. However, it is not correct that the invoices are prepared much prior to actual sanction of loan.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 a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....m the Corporate Debtor. 25. With the aforesaid, we are of the view that disputes raised by the Corporate Debtor in the reply to the notice, not supported by any documentary evidence, are spurious, Hypothetical and illusory. Therefore, we are unable to convince that there is any pre-existing dispute. 26. The Adjudicating Authority rejected the Application on following grounds:- a. Two cheques issued by the Corporate 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. ....