TaxTMI 
TaxTMI 
TaxTMI 
2021 (4) TMI 98
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....opment Private Ltd. ('Respondent/Corporate Debtor') was incorporated on 14.09.2007 under the Companies Act, 1956 bearing the CIN: U45202KA2007PTC043869 and having its Registered Office situated at Carlton Towers, A Wing, 3rd Floor, Unit No. 301-314, No. 1 Old Airport Road, Bengaluru-560008. Its Authorised Capital is Rs. 20,00,000/- and Paid-up Capital is Rs. 10,00,190/-. The Company is engaged in the business of real estate, construction and civil engineering. (2) On 31.10.2019, an amount of Rs. 15,03,11,397/- is payable by the Expat Projects Bangalore Holdings Pvt. Ltd. (hereinafter as 'Expat Bangalore') as prime obligor to the Applicant/Petitioner, in terms of the Booking Confirmation Letter dated 10.04.2014, as amended vide Booking Confirmation Letter dated 05.02.2015 and by Expat Projects & Development Pvt. Ltd. (hereinafter as 'Expat Projects'), the Respondent herein, as guarantor in terms of Guarantee dated 20.06.2016. The debt of the Corporate Debtor Expat Projects has arisen in terms of Guarantee guaranteeing to fulfill all obligations of Expat Bangalore in terms of above letters. (3) Expat Bangalore and Expat Projects had approached the Applican....
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.... of the Applicant and he was assigned with Customer No. C1320642. However, initially, booking confirmation letters had been issued in the name of Maritime & Management Services Co. WLL, Bahrain, and the initial booking note had reference to three different Companies including one which had no relation to the transaction. It was issued on the letter head of the Respondent, signed by Mr. Diwakar Ramamurthy, on behalf of Expat Properties India Ltd. (A Company of Expat Group not related to the transaction) and the seal of Expat Projects the Respondent was affixed and the offer was for a project to be developed by Expat Bangalore. The issuances of the said note in the name of Maritime & Management Services erroneous. (6) Payments were made by the Applicant in favour of the Respondent, and receipts for individual payments were also issued by the Respondent, whereas, the understandings stated that the development would be carried out by Expat Bangalore. In view of the same, the Respondent agreed to stand as Guarantor for Expat Bangalore, in respect of the Project and for repayment of the amounts to the Applicant, in the event of there being delay/default, as per the terms of the Agreeme....
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..... The demand notices were issued on bona fide belief that the Applicant is an Operational Creditor. A Reply was issued by the Counsel of the Respondent, on 03.02.2018 inter alia admitting the debt and stating that the Respondent is keen to discuss and find a solution. Thereafter, in absence of receipt of funds during notice period, the Applicant filed an Application in Form 5 on 19.03.2018 to initiate CIRP against Expat Bangalore before this Tribunal vide CP (IB) No. 82 of 2018 on the bona fide belief that the Applicant was Operational Creditor and the same was dismissed by the Adjudicating Authority by an order dated 07.08.2019 inter alia stating that "we are unable to categorise the above debt as an "Operational debt". It is vital to mention here that in either case of the Petitioner being categorised as a Home Buyer or an Investor, it is clear that the amount disbursed by the Petitioner was against the consideration of the time value and money and did have a commercial effect of borrowing in the hands of the Corporate Debtor". It further added that the order will not come in the way of the Applicant to invoke any other remedy available under any law. (10) Under Guarantee dated....
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....Co. WLL and the Expat Properties India Pvt. Ltd. and Expat Projects and Development Pvt. Ltd. Hence, the Respondent is discharged its liability to indemnify, if any, created vide letter dated 20.06.2016 produced by the Petitioner. As per Document No. 18A of the Petition, the Petitioner has terminated the Agreement with the Principal without any intimation to the Respondent in respect of the Breaches or Non-Performance on account of the Principal Company. Hence, no liability arises unto the Respondent. Further, the alleged Guarantee has not been invoked by the Petitioner. That Respondent has not received any notice till date in respect of the invocation. (3) That Documents Nos. 5 to 11 of the Petition, is clear that the transaction was made on behalf of M/s. Maritime & Management Services Co. WLL by the Petitioner. The receipts issued reflects as under: "Sawraj Kumar Director M/s. Maritime & Management Services Co. WLL" Therefore, it constitutes sufficient proof that the transactions were made by the Petitioner on behalf of the M/s. Maritime & Management Services Co. WLL, which has been now disputed by the Petitioner for reasons best known to him and these Insolvency proce....
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....y. Commissioner of Stamps and Registration on 08.11.2019 as is evident in the endorsement on the Guarantee. Further, it is false and malicious to state that the Guarantee has been obtained by way of fraud and misrepresentation. The exit notice was addressed to Mr. Santhosh Shetty, CMD Expat group, copied to Mr. Dillon and Mr. Vinod Bhatia. Mr. Santhosh Shetty is Director of prime obligor Company as well as that of the Respondent guarantor Company. (2) Exit notice does not in any way discharge the Respondent of its liabilities under Guarantee and a plain reading of the guarantee issued by the Respondent made this apparent. There are two factors are of prime importance viz., booking confirmations at document No. 2 & 3 provided an option to exit for the Applicant in case of the Respondent failing to develop as per agreed timelines and on such exit, the Respondent was obligated to return the amounts paid by the Applicant together with interest and payment schedule shared with the Applicant at Document No. 19 provides for a scheme for the return of money to the Applicant and undeniably provides for interest to be payable at the rate of 12% on the principle amount. (3) The Guarantee ....
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....ismissed as the Application was filed u/s. 9 of the IBC by inter alia holding they are unable to categorise the debt as "operational debt" and further stated that the order will not come in the way of Applicant to invoke any other remedy available under any law. 7. Shri Uday Shankar R., learned Counsel for the Respondent, while reiterating the averments made in the Reply, as briefly stated supra, has also filed his written arguments on 04.08.2020 by inter alia contending as follows: (1) There is absence of clarity regarding, who is the actual Principal Company against whom claim is initiated. Further, there is existence of multiple document/letters dated 10.04.2014 and 05.02.2015 executed by and between Expat Properties India Pvt. Ltd., Expat Projects and Development Pvt. Ltd. and M/s. Maritime & Management Services Co. The Petition is liable to be dismissed on the ground of vagueness. Since the so-called Agreement needs to be proved in trial before the trial court as it is a booking letter dated 10.04.2014 and 05.02.2015 and the same letter has been executed between Expat Properties India Ltd. and M/s. Maritime & Management Services Co. W.L.L. and Expat Projects & Development P....
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....full payment with 12% compounded interest from Expat for the period in which the money is held by Expat. Interest on each instalment to be calculated separately based on respective dates of receipts and returns. b) In case Expat fails to refund the full amount with the 12% compounded interest, Purchaser to have the right to exercise lien mutually agreed asset of Expat properties having a value equivalent to that of the full amount paid by Purchaser along with 12% compounded interest. Expat would allot a property/asset that is mutually agreeable to both parties and is easily marketable. 22. The Purchaser will have the right to resell, register the building in full, part or flat by flat without any transfer fee levied by the builder. The Purchaser has the option to use Expat services for transfer/registration formalities at an agreed fee. 23. Formal Agreement of Sale will be executed once approvals come through. This document will govern the sale transaction detailed herein till a formal agreement is carried out." Therefore, it is relevant to point out here that Clause 21(b), 22 & 23 above would be ultimate cause of action for the Petitioner to invoke. However, terms and condi....
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....P(IB) No. 82/BB/2018 is hereby rejected. However, this order will not come in the way of Petitioner to invoke any other remedy available under any law so as to get the grievances redressed. No order as to costs." 11. After dismissal of said CP, the Petitioner has again filed the present Petition, U/s. 7 of Code for the same set of facts. The contention of the Petitioner that the Petitioner is fully entitled to invoke provisions of the Code once again by changing the Section of Code from Section 9 to Section 7 is not tenable and it is liable to be rejected. The Adjudicating Authority has given a clear finding that liberty granted to the Petitioner is to invoke any other remedy available under any Law, do not mean to invoke provisions of the Code again by changing Section. Since the judgment has become final, the Petitioner is estopped from invoking the provisions of the Code for the same set of facts. 12. In terms of letter dated 10.04.2014 and 05.02.2015 and other connected letters, it is clear that the Applicant invested money for purchase of Flats in question. Clause 21(b) of letter dated 10.04.2014 confers rights to the Purchaser (Petitioner herein) to exercise lien mutually a....