TaxTMI 
TaxTMI 
2023 (3) TMI 20
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....r Singh, Pramod Kumar Sinha, Prasadh TS Srinivasan , Priya Rajeev Shivdasani, Rajesh Kantilal Jain , Raju Sethi (HUF) Kart Raju Sethi , Rama Venkatesh , Ravindra Bohra , Sanaa Rahman, Sanjeev Chakravarthy, Sharmila Chandan , Shruti Praveen Rege, Shyamal Sarkar , Sonika Lakhera, , Sreenath Nagaraja , Subrahmanya Manjunatha , Subramanyam Kotharu , Sunil Kumar V, Swatantra Roa , V. Ananthakrishnan , Vaishali Khandekar , Vidya Krishna , Vikram Dhawan, Visvesvaraya Appala Pentakota Versus Mirador Constructions Pvt. Ltd. And Sujata Shekhar Shah, Anand Purandare, Avnish Jagdish Mody, Bharat Laljee Shah, Saroj Bharat Shah, Sudha Naren Sheth, Suman Sudhir Purandare, Sudhr Dattatraya Purandare, Sudhir Dattatraya Purandare HUF Versus Mirador Constructions Pvt. Ltd. ( Justice Rakesh Kumar ) Member ( Judicial ) And ( Dr. Alok Srivastava ) Member ( Technical ) For the Appellant : Ms. Sharmistha Ghosh , Ms. Palak Nenwani , Ms. Aditi Sinha , Advocates For the Respondents : Mr. Dilip Annasaheb Taur , Advocate For the Appellant : Mr. Himanshu Chaubey , Advocate For the Respondents : Mr. Dilip Annasaheb Taur , Advocate JUDGEMENT JUSTICE RAKESH KUMAR, MEMBER (JUDICIAL) In....
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....nt companies other projects near the same site but the petitioners did not respond to that offer. Be that as it may disregarding the contentions of both sides, the issue that falls for consideration is; Whether the above company petition filed by 14 individual flat allottees in a real estate project is maintainable in view of the recent amendment? Admittedly, all the above petitioners are investors in the real estate project namely "Oasis Avani" launched by the Corporate Debtor. The company petition was filed on 27th May, 2019. Subsequently, Section 7 of the code was amended through amendment which was published in Official Gazettee dated 13.03.2020 prescribing minimum 100 allottees or not less than 10 percent of the total number of such allottees under the same real estate project whichever is less for filing petition under Section 7 of the Code. Liberty is also given to single applicant in the pending company petitions which are pending for admission to bring the required number of remaining applicants and continue the company petition within 30 days from the date of amendment came into force. Admittedly, the petitioners are less than 100 members in the present ....
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....r the Companies Act, 2013, having its registered office at B-301 & 302, Damjl Shamji Corporate Square, Kanara Business Center, Near Laxmi Nagar. Ghatkopar (East) Mumbai - 400075 (hereinafter referred as 'MC*), which expression shall unless it be repugnant to the context or meaning thereof be deemed to mean and include its successors or successor in interest and assigns of the ONE PART; AND Anant Raniwala, Indian Inhabitant residing at Flat No. 603, Vivarea Tower, B-1, Sano Guruji Marg, Mahalakshmi Circle, Jacob, Mumbai (hereinafter referred as the "AR*) PAN No. AIGPV6305B, which expression shall, unless it be repugnant to the context or meaning thereof, be deemed to mean and include his/her heirs, representatives. executors, administrators, successors, and permitted assigns of the OTHER PART. MC and AR are hereinafter individually referred as "Party" and collectively referred as *Parties" WHEREAS: 1. Mr. Ganesh Pandurang Raut("Owner") is well and sufficiently entitled to and is seized and possessed of all the ownership right, title and interest in the immovable property, being pieces or parcels of Non Agricultural Lands bearing Surve....
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.... and valuable consideration and hereby expressly records, declares and confirms that they have No Objection to invest monies as required by MC by the creation of security on the N. A. Plots which shall be made available to the AR @ Rs. 600/- (Rupees Six Hundred only) per sq. ft. ("Secured Premises") and the area of the said Secured Premises shall be equivalent to the amount invested by the AR, to secure the sums advanced by AR to MC. VIII. In order to further ensure the Secured Amount as envisaged in clause VII hereinabove, an additional area equivalent to Secured Premises shall be kept reserved by MC as an by way of additional performance guarantee for the sum advanced by AR to MC. It is expressly agreed between the Parties that the said additional area is just to additionally secure AR and shall be released by AR, after the expiry of the term of this agreement without any charge, claim and demur. IX. Acceding to the request of MC and relying on the representations and declarations of MC. AR has agreed to advance to MC an amount of Rs. 18,00,000/- (Rupees Eighteen Lakhs only) against the provision of such security and on the terms and conditions as set out in thi....
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....ured Premises. (f) Owner / MC have not at any time prior hereto, created any mortgage, charge, claim, lien or any tax liability in respect to the Property and/or the Secured Premises and hereby undertakes not to encumber the Secured Premises or create any right in favour of anyone whether by way of trust or by way of any claim for maintenance whatsoever till the time the entire Secured Amount and other moneys due and repayable by MC to AR in terms of this Agreement are fully repaid or deemed to have been repaid in the manner envisaged in this Agreement. (g) Neither Owner / MC have received any notice for acquisition or requisition of the said property and/or the Secured Premises or any portion thereof. (h)Neither the said property nor the Secured Premises are the subject matter of any pending suit or litigation or attachment before or after judgment. (i) There are no prohibitory orders or any attachment orders or any litigation of or otherwise any liabilities in respect of the Property or any part thereof, whereby the rights of AR to deal with the Secured Premises, are in any way affected or jeopardized. (j) This Agreement duly and valid....
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.... by each of the parties hereto. This Agreement shall be binding upon and inure to the benefit of the successors and legal representatives of AR. 7 The MC agrees to indemnify and does hereby indemnify and keeps indemnified and harmless AR against any loss, damage, claim, costs, expenses, charges, demand, action, dispute of whatsoever nature incurred, suffered or sustained by AR arising from or out of or in connection with or in relation to the transaction contemplated in this MOU. 8 Any notice and other communications provided for in this Agreement shall be in writing and shall be first transmitted by facsimile transmission and then confirmed by postage, prepaid registered post with acknowledgement due or by internationally recognized courier service, in the manner as elected by the Party giving such notice, at the addresses first hereinabove mentioned and shall be marked to the attention of Mr. Vijay Pawar in the case of MC and in case of AR marked to the attention of Anant Raniwala. All notices shall be deemed to have been validly given on (i) the business transmitted by facsimile transmission, or (i) the expiry of seven days after posting it sent by registered p....
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....ltural Lands bearing Survey nos. 2/2, 2/4, 2/5 and 2/6 admeasuring 4H - 27A - 8P equivalent to 42,708 sq. mrs., lying and situated at Revenue Village Bendecon, within the Registration Sub-District of Shahapur, District Thane IN WITNESS WHEREOF, THE PARTIES HERETO HAVE CAUSED THIS AGREEMENT TO BE DULY EXECUTED AND DELIVERED AS OF THE DAY, MONTH AND YEAR FIRST ABOVE WRITTEN." 3. It is the stand of the appellants that similar separate investment agreements were entered into between other appellants and Respondent/Corporate Debtor. It is further case of the appellant that as per investment agreement within 24 months the invested amount was to be returned and also periodically during intervening period interest at specific rate was to be given to the appellants by the Respondent/Corporate Debtor. It is further clear that some interest was paid. However, subsequently on failure on the part of the Corporate Debtor in payment of interest and also refund of the invested amount after 24 months despite repeated requests by the appellants, the appellants were constrained to file an application under Section 7 of the IBC before the Adjudicating Authority. On examination of the appli....
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...., para 429). B. The Ld. Adjudicating Authority, vide the Impugned order, has dismissed the petition on merits, despite declaring it to be withdrawn for want of required minimum number of allottees (pg. 37, Appeal), thereby foreclosing the right of all the other creditors of the Respondent Corporate Debtor who wish to prefer an Application under Section 7 of the Code, against the Respondent. The Impugned Order directly affects and prejudices the petition, already preferred by some of the Appellants herein, before the Ld. Adjudicating Authority, against the Corporate Debtor, even though the same has been filed in compliance with the amended Section 7 of the Code. Since the agreements as entered into between the Appellants and the petitioners before the Ld. Adjudicating Authority are identical, the interpretation as given by Ld. Adjudicating Authority, has a direct bearing on the rights of the Appellants. C. The Ld. Adjudicating Authority, erroneously held that the non-payment of dues by the Corporate Debtor to its creditors, is a Contractual dispute and thereby beyond the jurisdiction of the Tribunal. D. The order as passed by the L.d. Adjudicating Authorit....
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....al) H. The Corporate Debtor has specifically referred to Clause 5 of the Agreement to contend that the Applicant herein were offered transfer of the Secured Premises in favour of the Appellants (@pg. 9, Counter Affidavit). I. Once the Corporate Debtor itself admits that the contingency for invoking Clause 5 of the Agreement has occurred, it admits that there is a default on its part in paying the debt due in favour of the Appellants. The natural consequence of the said admission, in light of the law as laid down by the Hon'ble Apex Court in Innoventive Case (Supra). is that the Petition under Section 7 is liable to be allowed by the Adjudicating Authority. J. The Corporate Debtor itself has recognised the Appellants herein as the creditors of the Company in the Audited Books of Accounts of the Corporate Debtor (@pg. 74, Appeal). K. The Ld. Adjudicating Authority has further failed to appreciate that the default clause as relied upon by the Corporate Debtor only deals with the contingency of non-payment of Secured Amount. Secured Amount has been defined in Clause 1 of the Agreement as the principal amount invested by the investor (@) pg. 41, A....
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....ng the appellant as allottee is concerned we are prima facie of the view such observation by the Adjudicating Authority was erroneous. Investment agreement in between the appellant and Corporate Debtor in categorical term states that the appellant under the said agreement had invested the amount for a time period of 24 months and even before expiry of period of 24 months as agreed the Corporate Debtor was required to make payment of interest to the appellant. It is also admitted by the Respondent in its reply that to some extent interest was also paid which is evident from para 4(j) of the affidavit in reply of the Corporate Debtor in Company Appeal (AT)(Ins) No.314/2021. It has been specifically stated that the Respondent Company has paid the interest from time to time and performed its part of contract. It is further clear from stand taken by the Corporate Debtor in para 4(g) that as per instructions of the Karvy, the Respondent Company through its director had entered into an investment agreement with the appellants who had invested money as secured in Respondent(Corporate Debtor) for two years and upon expiry of the said period the appellant were in choice either to take the en....
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....der dated 19.01.2021 the Learned Adjudicating Authority before expiry of two months for curing the defects has passed the impugned order on 23.02.2021. 9. Besides hearing learned counsel for the parties we have thoroughly examined the materials available on record. On going through the investment agreement which we have incorporated hereinabove there is no difficulty in coming to the conclusion that appellants had invested money for a specified period and that too for some period they received interest as admitted by the Respondent/Corporate Debtor in para 4(j) of it affidavit in reply. The investment agreement was unambiguous for 24 months and in lieu charge was created to the plots. In such situation there was no reason for the adjudicating authority to treat the appellants as allottees. We are of the opinion that the Adjudicating Authority has further misunderstood the observation of the Hon'ble Supreme Court in Manish Kumar case (Supra). It is evident that the fact remains that after the amendment in section 7 was introduced appeal was filed before the Supreme Court and Hon'ble Supreme Court by its order dated 13.01.2020 while issuing notice directed to maintain status quo w....
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.... Writ Petitions and the Transferred Case will stand dismissed subject to the aforesaid directions and the observations contained in the Judgment, and we only make it clear that the benefits of the directions, under Article 142, will be available also to the petitioners in the Transferred Case. 449. The intervention application (I.A.No.67473 of 2020 in WP (C)No.26 of 2020) is filed by allottees who have 465 filed application under Section 7 on 20.9.2019. I.A. No.32863 of 2020 in WP(C) No.53 of 2020 is filed by the allottee for impleadment. He has filed application under Section 7 of the Code on 19.12.2019. I.A. No.32869 of 2020 WP(C) No.53 of 2020 is filed by the allottees who have filed the same for impleadment. They have filed application under Section 7 on 17.9.2019. I.A.No. 15425 of 2018 in WP (C)No.26 of 2020 is filed by a corporate debtor for impleadment. All the above IAs are disposed of in terms of the judgment as aforesaid. 450. We however make it clear that the directions we have issued under Article 142 regarding court fees and about condonation of delay will apply to the applicants who are allottees." 10. On examination of the aforesaid direction of ....