TaxTMI 
TaxTMI 
2022 (2) TMI 412
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....e order dated February 27, 2019 and eventually appointed the applicant as liquidator. 2. The applicant submitted that while performing his duties as resolution professional during the CIRP period learned that the respondent was occupying unit No. 7 in the building developed by the corporate debtor known as "Kamla Spaces". As the applicant had limited access of the records and both the directors of the corporate debtor were in jail, respondent was requested vide letter dated April 6, 2018 to produce copy of the agreement/ rent agreement in relation to the unit occupied by him. 3. The applicant further submitted that the respondent vide letter dated May 8, 2018 provided copy of the unregistered agreement dated September 2, 2016 to the applicant (copy of the said letter is annexed as exhibit "B" to the MA at page No. 7). Upon thoroughly examining the said agreement submitted by the respondent and limited records available of the corporate debtor several discrepancies were noticed by the applicant. 4. The applicant further states that the erstwhile directors in the year, 2013 had agreed to sell unit No. 7 to the respondent for the total consideration of Rs. 3,78,00,000 which was muc....
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....ocument to substantiate its claim of Rs. 43,00,000. It is therefore submitted that the respondent has fraudulently entered into this transaction with mala fide intentions to misappropriate the assets of the corporate debtor and defraud the creditors of the corporate debtor which is gross violation of section 66 of the Code. 8. The applicant through the present application has beyond reasonable doubt established its case that the respondent is a related party of the corporate debtor and is illegally holding possession of unit No. 7 since August, 2013 on the strength of an unregistered agreement admittedly by just paying a sum of Rs. 4,50,000 to the corporate debtor. 9. It is brought to the attention of this Bench that the present application was substantially argued on April 8, 2019 and this Tribunal after hearing both sides was pleased to direct the respondent as under : "4. Having heard the submissions of both the sides few events are not in dispute that an allotment letter was issued and on that basis the answering respondent has occupied the premises and still enjoying the same. It is not in dispute that there was an agreement wherein a consideration as settled and on that s....
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....n No. 2894 of 2019 expressing his willingness of purchasing the said unit on "as is where and whatever it is basis" by paying the balance consideration of Rs. 3,30,00,000 in instalments. 11. In the present miscellaneous application once again came up for hearing on January 28, 2020. As the amount of Rs. 3,30,00,000 was not disputed by the respondent, this Tribunal was pleased direct the respondent to pay Rs. 3,78,00,000 minus Rs. 47,50,000. It is pertinent to note that the said order was just an interim order directing the respondent to pay at least the undisputed amount to the applicant and present application as well the aforesaid Miscellaneous Application bearing No. 2894 of 2019 filed by the respondent were adjourned to March 26, 2020 for further hearing. As such the issue of Rs. 47,50,000 was still pending adjudication. 12. The applicant submits that he thereafter kept following up with the respondent to make the payment of the balance consideration however the respondent on some or other pretext delayed compliance of the aforesaid order dated January 28, 2020. After numerous reminders the respondent made payment of Rs. 3,00,00,000 and issued a post-dated cheque No. "000024"....
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....dent. 17. The total consideration of the said premises as recorded in the agreement of sale is Rs. 3,78,00,000 of which an amount of Rs. 47,50,000 was already paid by the respondent herein which is recorded in clause 11 of the said agreement of sale on Page No. 24 of I. A. No. 535 of 2021. The relevant clause is reproduced as under : 11. The purchaser shall pay to the developer a sum of Rs. 3,78,00,000 (rupees three crores seventy eight lakhs only) as the purchase price in respect of the said premises. The purchase price is inclusive of the pro portionate price of common areas and facilities of the said building. The said purchase price shall be paid by the purchaser to the developers in accordance with the instalments, after deducting TDS 1 per cent. from the total consideration amount, as under : 11.1 Rs. 47,50,000 (rupees forty seven lakhs fifty thousand only paid by the purchaser on or before the execution of these present (the payment and receipt whereof the developers hereby admit and acknowledge) ; 11.2 Rs. 3,30,50,00 (rupees three crores thirty lakhs and fifty thou sand only being the balance full and final consideration payable by the purchaser to the developers at ....
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...., for avoidance of any transaction as per these conditions the same had to take place post August 17, 2015. However the transaction between respondent and corporate debtor was entered on August 4, 2013 by issuance of the letter of allotment by the corporate debtor, which certainly by all means is beyond the relevant period as con templated under section 46 of the Code. Further, section 45 of the Code specifically excludes those transactions that have been entered by the corporate debtor in its ordinary course of business. (b) Undervaluation At the further outset, it is denied that the transaction that has been entered between the parties is an undervalued transaction as alleged by the applicant. The transaction between the corporate debtor and respondent has taken place between the parties in the year 2013 and therefore, for the purpose of assessing whether the transaction is undervalued, it would be necessary and relevant for taking into account the prices that were pre vailing in market at that point of time. The said building "Kamla Spaces" has been constructed by corporate debtor on property bearing C. T. S. No. G/52, G/53, G/54 and G/55 on S. V. Road, Santacruz (West) and ....
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....hared vide e-mail dated December 11, 2020. 22. The respondent submits that merely because company petition has been admitted and resolution professional has been appointed would not mean and constitute that the rights and obligations of the parties who had entered into dealing with corporate debtor in its ordinary course of business stands revoked, cancelled or rescinded by the resolution professional/liquidator. 23. The respondent further submits that the above contentions were already submitted before this Tribunal and the order dated April 8, 2019 came to be passed. 24. The respondent herein filed Misc. Application No. 2894 of 2019 seeking few modifications of the order dated April 8, 2019 including one of the prayers being that the respondent herein has in aggregate made payment of Rs. 47,50,000 in respect of the said premises under the agreement for sale dated September 2, 2016 which has been duly admitted and acknowledged by the ex-directors and not only Rs. 4,50,000 as mentioned in the order dated April 8, 2019 in respect of the said premises. 25. The respondent submits upon hearing both the parties in M. A. No. 642 of 2018 and M. A. No. 2894 of 2019, this hon'ble Tr....
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....r on behalf of the corporate debtor and respondent. The fact of dispute in relation to the allotment of car parking space in evident from the e-mail communications between the parties which are annexed to the Interlocutory Application No. 535 of 2021 filed by the respondent herein. Hence, it is evident that the only issue and dispute which stood between the parties was in relation to mentioning of car parking spaces in the agreement. Rest all of the terms and conditions including advances money paid and balance payable were finalized and agreeable to both the parties herein. 29. The draft agreement for sale which was shared by the advocates for applicant-liquidator vide their e-mail dated December 11, 2020 itself shows that the respondent was only liable to pay a sum of Rs. 3,30,50,000 (rupees three crores thirty lakhs and fifty thousand only). The relevant clause in the draft agreement is reproduced as under : Whereas : (D) The vendor after scrutinizing the records of the company/developer had filed Miscellaneous Application No. 642 of 2018 against directors/ promotors of the company/developer and Mr. Gopal Shivram Dalvi before the hon'ble National company Law Tribunal, M....
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....n HDFC Bank, Bandra East Branch issued in favour of M/s. Kamla Real Estate Hub P. Ltd. (in liquidation) aggregating to Rs. 1,00,00,000 (rupees one crore only) towards part purchase consideration with understanding to make payment of balance consideration of Rs. 2,30,50,000 (rupees two crores thirty lakhs fifty thousand only) by post dated cheques drawn as follows : Cheque No./NEFT Date Bank Amount (Rs.) "000022" December 31, 2020 HDFC Bank 1,00,00,000 "000023" January 15, 2021 HDFC Bank 1,00,00,000 "000024" February 10, 2021 HDFC Bank 30,50,000 30. The draft agreement was sent vide e-mail dated December 11, 2020 by the advocates for the liquidator cover e-mail of the same reads as follows : "Dear Sir, We are concerned for our client, Mr. Rajeev Mannadiar. Attached herewith is the final draft of agreement for sale for your client's record. Upon instructions we would like to state that our client shall not be in a position to accept any further modification, alteration or suggestion in the said draft. Your client may proceed with payment of stamp duty and book an appointment for registration without any further delay. Our client is available on Decemb....