TaxTMI 
TaxTMI 
2022 (9) TMI 565
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....nies Act, 1956 and having its registered office at Indira Gandhi International Airport, Terminal- 1D, New Delhi - 110037. The Financial Creditor is an airline operator and is engaged in the business of civil aviation and allied services, within India and abroad. Mr. Vijay Kumar Roy, duly authorized on behalf of applicant vide Resolution dated 14.08.2018, has preferred the present application on behalf of the applicant for initiation of insolvency resolution process against the respondent corporate debtor. 3. The Respondent Company M/s. Affordable Infrastructure And Housing Projects Private Limited, against whom the Insolvency Resolution Process has been prayed form, is a company incorporated under the provisions of the Companies Act, 1956 and having its registered office at 227, Square One, Saket District Centre Saket, New Delhi - 110017. Since the registered office of the respondent corporate debtor is in New Delhi, this Tribunal having territorial jurisdiction over the NCT of Delhi is the Adjudicating Authority in relation to the prayer for initiation of Corporate Insolvency Resolution Process in respect of respondent corporate debtor under sub-section (1) of Section 60 of the....
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.... receipt of advance sum of Rs. 1,20,00,000/-. viii. It is stated that the Corporate Debtor's advance sum was purportedly received as Interest Free Security Deposit (IFSD) being equivalent to three months of lease rent under the LOI (i.e. Rs. 48,00,000/-). It is an admitted position between the parties that no lease deed has been executed till date, therefore there is no question of the transferred advance of Rs. 1,20,00,000/- can be equated towards three months of lease rent. ix. The Financial Creditor filed CP No. (IB) 1387 (ND)/2018 in Form 5 of the Insolvency & Bankruptcy Code (Application to Adjudication Authority) Rules, 2016 in terms of Section 9 of the Insolvency and Bankruptcy Code, 2016 read with rule 6 of the Insolvency and Bankruptcy Code (Application to Adjudication Authority) Rules, 2016 before this Tribunal to initiate Corporate Insolvency Resolution against Corporate Debtor and vide Order dated 21.05.2019, the Adjudicating Authority dismissed the CP No. (IB)-1387 (ND)/2018 filed under Section 9 of the Code on the ground that the amount claimed by the Financial Creditor herein was not an Operational Debt. x. Being aggrieved by the Order dated 21.....
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....ation which is being filed after a period of more than 5 years even the Section 9 Application filed by the Applicant was beyond the period of limitation of 3 (Three) year. v. It is submitted that the Applicant on one side states that it was granted a liberty for addressing the issue of Applicant being a Financial Creditor however, on the other hand without addressing the same it withdrew the appeal. As per the agreed terms of the LOI, the Applicant was under the obligation to execute a lease deed within 30 days from signing of the LOI Thus, the Applicant was under an obligation to execute a lease deed with the Respondent latest by 31 August 2015. However, the Applicant failed to fulfil its primary obligation in terms of the LOI, which was a condition precedent. Further, the Applicant was under an obligation as per Clause 20 of the LOI to enter into good faith discussion for lease documentation and execution of definitive lease agreement. vi. It is also pleaded that the Respondent in furtherance of its contractual obligations under the LOI had executed a Memorandum of Understanding dated 15 June 2015 with M/s. Jan Sewa Trust in respect of the leased premises for th....
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....as extended to 21.09.2015 and an acknowledgement was made by the Corporate Debtor reaffirming the jural relationship between the parties vide its reply on 19.09.2018, thus, the application filed under Sec. 9 was very well within limitation. Further, the execution of addendum is evident by the conduct of the Corporate Debtor by furnishing its RTGS details on 07.09.2015 and accepting Rs. 1,20,00,000 on 08.09.2015, when, as per the LOI dated 31.07.2015, Conditions Precedent were to be satisfied on or prior to 31.08.2015. It is the conduct of the parties read with addendum dated 07.09.2015, which establishes that the parties to the present dispute agreed on increasing the time limit for performance of Conditions Precedent till 21.09.2015. Accordingly, the filing of the application is within limit. iii. It is further submitted that the Financial Creditor had withdrawn its Appeal before the Tribunal with a leave to file a fresh application. Vide its Order dated 03.11.2020, the Tribunal has made a specific observation for determination of the matter on merits. It is further submitted that the Corporate Debtor has itself admitted to the existence of financial arrangement between t....
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.... M/s. Jan Sewa Trust has no bearing on the present application nor does it establish any Intent of the Corporate Debtor to execute its obligations to the Financial Creditor/Applicant under the LOI. ix. The Corporate Debtor after borrowing a considerable amount of Rs. 1,20,100,000 from the Financial Creditor/Applicant, conveniently avoided its liability to refund the amount paid by the Financial Creditor/Applicant, only on the ground that the LOI was conditionally accepted. x. It is pertinent to mention that in spite of there being no provision for forfeiture of any amount, the Corporate Debtor believes it was entitled to forfeit the amount of Financial Creditor. But on the other hand, in spite of there being an unambiguous provision for refund, Corporate Debtor refuses to acknowledge the same. The Corporate Debtor cannot add to the LOI as per its wish and skip the actual provisions as per its own convenience to mislead and deceive this Hon'ble Tribunal. xi. It is submitted that there exists nothing on record which shows, that the advance payment made by the Financial Creditor was in the nature of security deposit. Moreover, admittedly Clause 21 of LOI....
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....ce sent on 19.09.2018 vii. Copy of IB-1387/ND/2018 filed before NCLT Bench viii. Copy of Order dated 21.05.2019 passed by the Adjudicating Authority in IB-1387/ND/2018 ix. Copy of Company Appeal No. 746 of 2019 x. Copy of Order dated 24.07.2019 in Company Appeal No. 746 of 2019 xi. Copy of Order dated 03.11.2020 in Company Appeal No. 746 of 2019 9. We have heard the Ld. Counsel for the parties and perused the case records. Admittedly, the Letter of Intent (LOI) has been executed between the petitioner and the respondent qua lease of place situated in Block No. 249-G Udyog Vihar, Gurgaon i.e. entire building comprising three basements plus ground plus three floors for lump sum value of Rs. 48.00 lacs per month including Rs. 8.00 lacs towards maintenance charges on rent. In response to that the applicant herein had to deposit six months' rent on which part deposit equivalent three months' rent payable within seven days of the signing of the Letter of Intent and the post clearance of the Legal Due Diligence (LDD). Though, it is being stated by the Ld. Counsel for the applicant herein that Addendum passed, to LOI dated 31.07.2015 ....
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....cant/Appellant was permitted to withdraw the present Company Appeal (AT) (Insolvency) No. 746 of 2019 and the same was dismissed as 'withdrawal' but without costs. However, the liberty prayed for by the Applicant/Appellant to approach the Hon'ble Adjudicating Authority under Section 7 of IBC was not granted by this Tribunal vide its order dated 18.02.2020 passed in the main Company Appeal. To clear the mist in the subject matter in issue, this Tribunal, on the basis of Equity, Fair play, Good Conscience and in the interest of justice passes an order by pointing out that the dismissal order of main Company Appeal (AT) (Ins.) No. 746 of 2019 dated 18.02.2020 'as withdrawn' will not in any way preclude the Applicant/Appellant to approach Competent Authority/Adjudicating Authority in seeking redressal of its grievance, by filing necessary application, of course, in accordance with law and in manner known to Law if it so desires/advised. 12. Before parting with the case, this Tribunal makes it abundantly clear that according to our view the order of Hon'ble NCLAT (supra) does not bar any right of the parties and it is open to the respective parties to raise al....