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2022 (6) TMI 777

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....s Registered office at 36/1A, Elgin Road, Kolkata-700020, (hereinafter referred as the Corporate Debtor). 3. It is submitted that the Operational Creditor is, inter alia, engaged in the business of real estate consulting marketing and advisory services and in usual course of business, the Corporate Debtor had engaged the Operational Creditor for an outright transaction of a commercial property in North 24 Parganas. It was agreed between the parties that the Operational Creditor would be entitled to a mutually agreed consultation fee for such outright transaction of land, subsequent to the signing of agreement between the Corporate Debtor and the land owner, It was agreed that the Operational Creditor shall raise invoice and the same would be payable upon receipt of the invoice. 4. It is submitted that the Operational Creditor took necessary steps for facilitating the transaction between the Corporate Debtor and one ESAB India Ltd. and as a result of the services, an agreement was executed between the Corporate Debtor and the said land owner EASB India Limited sometime in March, 2017 with respect to the land admeasuring 9.83 acres, Mouza- Khardah, Block- Barrackpore 2 J.L. No.2, P....

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....or addressed a notice under section 8 of IBC under Rule 5(1)(a) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, to the Corporate Debtor at its registered office calling upon the Corporate Debtor to pay the principal outstanding sum of Rs. 1,18,00,000/- within a period of 10 days from receipt of the said notice. The notice was duly delivered to the Corporate Debtor on 29th October, 2020. Copy of the Postal receipt and Track report are annexed as Annexure A-9. 8. It is submitted that the Corporate Debtor through the above notice was also intimated that in case the Corporate debtor failed to pay outstanding amount so demanded within the statutory period, the Operational Creditor would initiate Corporate Insolvency Process against the Corporate Debtor under Insolvency and Bankruptcy Code, 2016. It is further submitted that the Corporate Debtor vide its letter dated 4th November, 2020, has feigned ignorance of the whole transaction and services provided by the Operational Creditor. The Corporate Debtor has stated that they do not have any such invoice in their record,despite the same being delivered at their office and repeated reminders being sent....

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....ance of the purported demand notice. 15. It is submitted that the corporate debtor is a reputed profit making company as would be evident from its last audited financial statement and that the present application has been filed with an intent and as a means for realizing the alleged debts from the Corporate Debtor. It is submitted that the present proceedings have been initiated with an ulterior object to exert pressure on the corporate debtor to recover money which is alleged to be due from the Corporate debtor. It is submitted that the Corporate Debtor had shown an interest in purchasing land measuring 9.83 Acres, detailed above and one ESAB India Limited claimed to be the absolute owner of the said property. 16. It is submitted that the Operational Creditor being the land broker and the ESAB India Limited, the vendor/ land owner of the said property, represented to the Corporate Debtor, being the intending purchaser, that there was no suit or proceedings or litigation pending in respect of the said property or any part thereof. 17. It is submitted that no part of the said property has been or is liable to be acquired under and/or vested under the relevant law(s) and no procee....

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.... ESAB India Limited. 22. It is submitted that however, Electrosteel has again objected to the issuance of the NOC on the ground that ESAB having factory next to Electrosteel, has violated the condition imposed by the Government while granting exemption for possessing excess vacant land within its factory premises as it is closed for last few years. Electrosteel further objected to ESAB's recent move to get the subject industrial land to be used for residential purpose which, according to Electrosteel, will purportedly affect human life staying so close to industrial factory and Electrosteel further contended that it will be detrimental to the interest of Electrosteel in so far its expansion plans are concerned. 23. It is submitted that believing on such representation to be true and correct and in good faith, the Corporate entered into an agreement with ESAB in March,2017 to purchase the said land which is conditional subject to the Corporate Debtor being able to obtain the NOC from Urban Land Ceiling Department upon successful conversion of the said landed property from its existing industrial use to any other use within a period of two year from the execution of the said Agreem....

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....erial facts. It is denied that the notice of the operational creditor was defective or that there was any dispute as to the services rendered by the Operational Creditor. The Operational Creditor denies that there were any genuine or pre-existing or contemporaneous disputes against the claim of the operational creditor. It is denied that the question of initiating insolvency proceedings against the Corporate Debtor does not arise. It is denied that there are any bonafide disputes to the claim of the Operational Creditor or that the instant proceedings have been filed solely with an intention to recover debt. 28. It is stated by the Operational Creditor that scope of service of the operational creditor was limited to the execution of the agreement for sale between ESAB India Limited and corporate debtor and the claim of the operational creditor cannot be denied on the ground of any private dealings or understandings between ESAB India Limited and the Corporate Debtor. In any event, admittedly there was no injunction on execution of Deed of Conveyance in favour of Corporate Debtor and the Corporate Debtor has not initiated any legal proceeding against ESAB India Limited for non- exe....

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....7 written by the Director of the Corporate Debtor and pursuant thereto admittedly entered into an agreement along with their receipt, duly executed by the land owner after accepting part payment of Rs.2,50,00,000/-, there is hardly anything left to be doubted. The right of the Operational Creditor to its fees of Rs. 1,00,00,000/- along with GST gets reinforced by the language of the letter dated 30th December, 2017, which reads as under:- " 30/12/2017 Jones Lang LaSalle Property Consultants(India) Pvt. Ltd. Bachchawat House, No.2, 2nd Floor Dr. Martin Luther King Sarani, Upper Wood Street Kolkata West Bengal, 7000016, India Kind Attn: Mr. Ashish Chandak Reg: JLL Brokerage Dear Ashish, This has reference to your brokerage letter dated 22nd December, 2017, we hereby acknowledge and confirm the amount. However, please note we would not be able to share any documents pertaining to the deal as we have signed a non-disclosure agreement with the Seller. Please also maintain privacy/confidentiality within your company. Warm Regards R.N.Agarwal Director ..." 31. The Operational Creditor has duly complied with all the procedural formalities in filing t....

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....ly to such transactions as may be notified by the Central Government in consultation with any financial sector regulator. vii) The order of moratorium shall have effect from the date of admission till the completion of the corporate insolvency resolution process. viii) Provided that where at any time during the Corporate Insolvency Resolution Process period, if the Adjudicating Authority approves the resolution plan under sub-section (1) of Section 31 or passes an order for liquidation of the corporate debtor under Section 33, the moratorium shall cease to have effect from the date of such approval or liquidation order, as the case may be. ix) The Operational Creditor has not proposed name of any Insolvency Resolution Professional. Therefore, as per the provisions of Section 16(3) (a) of the IBC, so, we appoint Mr. Manish Jain, IRP having Reg. No. IBBI/IPA-001/IP-P00582/2017-2018/11023, email [email protected] act as Interim Resolution Professional (IRP). He shall file Form-2, and that no disciplinary proceedings are pending against him with the Board. x) Mr. Manish Jain IRP, is hereby appointed as Interim Resolution Professional for ascertaining the particulars o....