TaxTMI 
TaxTMI 
2021 (4) TMI 145
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....Pvt. 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. 20,0,00,000/- and Paid-up Capital is Rs. 10,00,190/-. The Company is inter alia engaged in the business of land development. (2) The Corporate Debtor approached the Petitioners with proposal of investing in the development scheduled property called 'Golden Greens'. Accordingly, the Petitioners individually decided to invest in the scheme and executed Token Receipt Agreement No. 1, 2 & 3 with Corporate Debtor individually, wherein, it acknowledged and accepted Rs. 2,00,000/- paid by each Applicant Nos. 1, 2 & 3 towards the initial booking amount. As per the terms and conditions of the said Agreements, the Applicants agreed to invest each Rs. 9,25,000/- in the said Scheme. Further, the Corporate Debtor assured the Applicant No. 4 that a formal agreement will be executed at the earliest and also requested the Applicant No. 4 to initiate payments towards ....
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....porate Debtor neither refused nor disputed the claims made by Applicants. Hence, the present petition is filed. 3. The Respondent have filed its statement of objections dated 17.02.20 to the Petition by inter alia contending as follows: (1) The Respondent is a Company engaged in the business of Realty and has over years built a brand and goodwill for itself. It is solvent and is capable of repaying all the legal dues payable to any parties. However, the Respondent has a cash crunch due to market conditions which by itself is not sufficient to prove the insolvency. The Company has a strong net worth with ongoing projects. The Company has 116 direct employees and 500 employees, who are indirectly employed through contractors and further gives indirect employment to many who depend on the construction business from the Company. The Petitioners entered into Agreement with the Respondent, whereby the Respondent on account of its expertise would assist in the development of the property. The Recitals at Para 2 of the Token Receipts clearly stated that the Respondent is having the resources and knowledge in development of the land for residential and commercial purpose. ....
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....ence, any grievance the recourse would be to have preferred an Arbitration. The Petitioners being aware of such Clause have approached this Hon'ble Tribunal with ulterior intention to coerce the Respondent herein. There is no legally enforceable Agreement between the Petitioners & Respondent. There is no concluded contract between the Petitioners and Respondent since the document that has been entered into is token receipt and is not sufficiently stamped. (5) The sites in respect of which claims have been made fall within the jurisdiction of Raigad District of Maharashtra. Since the subject matter of the dispute is pertaining to Specific Performance in respect of immoveable property situated in Raigad District in State of Maharashtra, the appropriate forum is the Civil Court within the territorial jurisdiction of Raigad, Maharashtra for specific performance i.e., either to hand over the site to the applicant or refund of the amount advanced. The motive of the Petitioners is not to initiate Insolvency Proceedings but to recover their money along with interest and put the Respondent in loses. (6) Hence, the Petition deserves to be rejected at the outset. 4. H....
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.... initiating CIRP against the Corporate Debtor. It is well settled law that the presence of Arbitration Clause in an Agreement, would not cause any impediment with regards to initiation of CIRP. (4) It is a well settled principle that as soon as the Adjudicating Authority is satisfied that there is a default on part of the Corporate Debtor, CIRP can be initiated against the Corporate Debtor. In the present case, the Corporate Debtor failed/neglected to reply to the Demand Notice dated 20.08.2019 issued by the Advocates of the Applicants 1 to 4 much less complying with the requisitions enlisted in the Demand Notice for making payment towards the investment or raising any dispute with regards to existence/correctness/quantum of the claim raised by the Applicants 1 to 4. In light of the above, the Corporate Debtor has no money to repay the financial debt and must undergo CIRP. 6. Shri Uday Shankar, learned Counsel for the Respondent, while reiterating the averments made in the Petition, as briefly stated supra, has also filed his written arguments on 04.08.2020 by inter alia contending as follows: (1) The Petition is liable to be dismissed at the outset by virtue o....
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....ners should invoked arbitration clause and resolve the dispute. (5) The purchase of agricultural land is by virtue of a Token Receipt and the same is impermissible under Maharashtra Land Reform Act. Thus, such transactions including the Token receipt are void-ab-initio so far as IBC is concerned. The Respondent is solvent and is capable of repaying all the legal dues payable to any parties. The Respondent has excess assets over liabilities as reflected in the financial statements. The admission of this petition based on frivolous claims would jeopardize many investors, employees, shareholders, land buyers etc. of the Respondent, and thus it shall be rejected in the interest of justice. 7. As narrated supra, cause of action arises basing on Token Receipt Agreement dated 28.09.2012 executed between the Petitioners and the Respondent. The object of the Agreement is for development of "GOLDEN GREENS", located at Pahel Village, Lonere Town, District Raigad, Maharashtra State. Therefore, the Respondent has proposed a Development Scheme named as "GOLDEN GREENS", for development of the Project by proposing a layout with Agriculture plot, having clear and marketable title, and a....
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....t Agreement dated 28th September, 2012. At the outset, I say that I have entered into a Token Receipt Agreement dated 28th September 2012 ("said agreement") with you. By the said agreement you had proposed a development scheme named as "GOLDEN GREENS" for development of the project ("said development"), having a layout with an agricultural plot as more particularly set out in the said agreement having clear and marketable title, as per a plan prepared by you with Four Corner Stone Demarcation of the plot area and an internal access motorable road leading to the said plot. As a confirmation to the said understanding I had made a payment of Rs. 7,60,500/- towards the sale consideration under the said agreement. As per clause 3 of the said agreement you were required to complete the said development within 60 months from the date of the said agreement or with a further reasonable extension of 6 months from the date of the expiry of the aforementioned 60 months. Please note that the 60 months period from the date of the said agreement has lapsed on September, 2017 and the extended period of 6 months has lapsed on March, 2018. Accordingly, 16 months h....
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....ase, as detailed supra, there is no enforceable concluded Agreement/contract executed in pursuance to Token Receipt Agreement dated 28th September, 2012 so as to raise legally enforceable debt. In this regard, it is relevant to rely upon the decision rendered in the case of Nikhil Mehta & Sons (HUF) v. AMR Infrastructure Ltd. (2017) 78 taxmann.com 302 (NCLT - New Delhi), In the instant case, money was advanced by the Petitioners for the purchase of immovable property, which is of an agricultural land which cannot be transferred as per Law. As rightly pointed out by the Respondent that dispute in respect of transfer of immoveable property needs to be adjudicated by Civil Court having territorial jurisdiction over same. It is relevant to point out here the judgment of Hon'ble Supreme Court of India in Pioneer Urban Land and Infrastructure Limited & Anr. Vs. Union of India & Ors., wherein it is inter alia held that, a person who is genuinely not interested in purchasing a flat/apartment shall not be entitled to any remedy under this Code. 11. It is relevant to observe here that even though the Petitioners are not able to demonstrate that the case falls within purview of the ext....