TaxTMI 
TaxTMI 
TaxTMI 
2022 (4) TMI 78
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....nd the said project suitable and accordingly booked Unit No. 120 & 121, 1st Floor being an office space. ii. That the said unit was for a total sale consideration of Rs. 25,62,796/- (Rupees Twenty-Five Lakh Sixty-Two Thousand Seven Hundred and Ninety-Six Only). The Financial Creditor had paid an amount of Rs. 20,00,000/- (Rupees Twenty Lakh Only) towards the said unit to the Corporate Debtor. The details of the payment are as follows:- Rs. 10,00,000/- (Rupees Ten Lakh Only) vide Cheque No. 525058 dated 10.06.2010 drawn on State Bank of India. Rs. 10,00,000/- (Rupees Ten Lakh Only) vide Cheque no. 525076 dated 12.05.2012 drawn on State Bank of India. iii. That the Corporate Debtor completed the said project and on the said project, the Corporate Debtor developed a banquet hall on the 1st Floor and earned huge money from the customers using it. iv. That when the Financial Creditor came to know about the said development on the said project, the Financial Creditor visited the office of the Corporate Debtor and asked about his possession on the said project. No positive response was received by the Financial Creditor. v. That various reminders and repeated calls were made b....
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....consideration for the time value of money, and the present Insolvency Application is liable to the dismissed on this ground alone. v. That, the Petitioner is guilty of Suppressio Veri and Suggestio Falsi, and has approached this Tribunal with unclean hands. vi. That the Petitioner has neither placed on record any contract or financial agreement setting out the terms therein for the amount purportedly claimed as loan facility as the said amount was never given as loan. vii. That the cheques handed over to the Petitioner were merely security cheques given only to comfort the Petitioner and the same is further evident from the fact that out of the alleged amount of INR 41,00,000/- (Rupees Forty One Lakh Only), cheques for an amount of INR 21,00,000/- (Rupees Twenty One Lakh Only) were drawn from the bank account of Mr. DB Jain in its individual capacity and not on behalf of the Respondent Company. That, the Petitioner now with the malafide intention has filed the instant Insolvency Application in a camouflaged manner to confuse and confound the Tribunal and is seeking amount from Mr. D.B. Jain against whom no Insolvency Application can be made maintainable under the provisions o....
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....er the category of allottee who booked a Unit in the Project of the Corporate Debtor. The transaction effected between the Financial Creditor and the Corporate Debtor is of a financial nature having time value of money falling within the meaning of Financial Debt as defined under Section 5(8)(f) of the code. The Financial Creditor deposited the said amount of Rs. 20,00,000/- as part of the sale consideration for the Unit and not as a loan. iv. That the Corporate Debtor has baselessly stated that the petitioner does not fall within the meaning of Section 5(7) of the Code. v. That the Corporate Debtor had agreed to pay an amount of Rs. 41,00,000/- (Rupees Forty One Lakhs only) as per the mutual agreement executed between the parties, however, the Financial Creditor is only claiming the amount deposited by it at the time of allotment of the Unit along with interest @18% p.a. Thus, it is completely false and incorrect to state that exorbitant amount is being sought. 4. The Applicant has filed written submissions in which he has reiterated certain points raised by him in the petition and they are as follows: i. That as per the Section 3(10) of the I & B Code, 2016, the petitioner p....
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....he Code. iii. That the Adjudicating Authority is not a recovery forum. * A coordinate bench of this Adjudicating Authority in the case of order dated 28th September 2020 of Amrit Kumar Agarwal v. Tempo Appliances Private Limited numbered as (IB) 859(ND)/2020 while adjudicating a Section 7 application on similar facts, held that NCLT is not a recovery court rather when a default of financial or operational debt occurred, in that case, the financial or operational creditor may file an application for initiating Corporate Insolvency Resolution Process. (Paragraph 10 to 16 at pages 5 to 7, of the judgment dated 28th September 2020). * This aforementioned view was also upheld by the Hon'ble National Company Law Appellate Tribunal, New Delhi in order/judgment dated 25th November, 2020 Amrit Kumar Agrawal v. Tempo Appliances Private Limited numbered as Company Appeal (AT) (Insolvency) No. 1005 of 2020 at Paragraph 2-5 at pages 2-5 of the judgment. iv. That the Financial Creditor has failed to comply with the mandatory threshold under the proviso to Section 7 of the Code. v. That the Hon'ble Supreme Court in the matter of Manish Kumar v. Union of India (UOI) and Others re....