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2023 (10) TMI 234
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.... the Adjudicating Authority had claimed Rs.5.20 crores. However, the RP had reduced the claim for Rs.5.20 crores to Rs.30 lakhs. 2. The short fact of the case is that by order dated 6.9.2019, 15.10.2019 the Adjudicating Authority initiated Corporate Insolvency Resolution Process (hereinafter referred to as CIRP) in a case bearing No.IB-1771/ND/2018 against the company namely Dream Procon Pvt Ltd. (hereinafter referred to as Corporate Debtor) The case was initiated on the application filed by the financial creditor. It is the case of the appellant that after the initiation of the CIRP public announcement was made by the IRP whereafter the appellant submitted his claim to the IRP for unit bearing No.D2-0001, D2-0701, A1-2502, B1-501, B1-502, D2-302, A1-1202, A1-2503, A1-2505 and A1-2506 at the Project. Initially the said claim was acknowledged by the IRP. It is further case of the appellant that the appellant's name appeared in the list of creditors. However, at later stage on 21.3.2020 when list of creditors were published in the same list the RP transferred the claim from the category of admitted claim to the claim under review. On the same date the RP sought clarification from ....
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....akhs) and on 26.09.2017 an amount of Rs.25.00 Lakhs (Rupees Twenty-Five Lakhs) were paid by the Applicant to the CD. The CD issued cheques to the Applicant with the stipulation that if the principal amount is not paid within one year then the cheques would be presented. As per the submissions of the Counsel for the Applicant, the cheques were presented and dishonored. The counsel for the applicant has pleaded that as per the Allotment Letter(s)/ MoUs the amounts) towards Consultancy and liaising services rendered by the applicant to the CD and its group companies was adjusted. In short, the counsel for the applicant heavily relied upon the Allotment Letter(s) / MoUs and cheques issued to prove the claim amounting to Rs 5.20 Crores (Rupees Five Crore Twenty Lakhs). б, The Counsel for the IP submitted that on 21.03.2020 a communication was sent to the Applicant for seeking clarifications and providing the documentary evidence to verify his claim, to which a reply has been received on 27.03.2020 whereby it has been stated that towards the Consultancy and liaising services, the invoices were raised and the original invoice were given to the CD.However, no record was prod....
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.... were raised by the appellant on the Corporate Debtor. Upon payment having become due the Corporate Debtor had cited lack of funds as the reason for failure to repay. The appellant herein thereafter was offered flats in lieu of payment due and payable with the condition that in case CD was unable to pay the appellant outstanding amount due to it within a period of one year the said units would be allotted in the name of the appellant. It has further been claimed that in terms of arrangement the CD entered into various Memorandum of Understanding and builder buyer agreements with the appellant. In sum and substance it has been claimed that on the basis of MOUs the units/flats were allotted to the appellant. The appellant had basically raised his claim on the basis of MOU/agreements and also allotment letters on the strength as if he had rendered services of liaison to the CD. 4. Mr. Pawan Shree Agrawal, learned counsel for the appellant at the time of argument has taken us to dates and events which has been mentioned at Page 7 of the Memorandum of Appeal to show the sequence as to how initially his claim was admitted by IRP. However, subsequently even though the claim was admitte....
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....02, D2-302, A1-1202, A1- 2503, A1-2505 & A1-2506 in their project Victory Ace situated at Plot No. GH-02, Sector 143, Noida in favor of the Appellant. a)Allotment letter for Unit D2-0001 Pages 45-58, Allotment letter for D2-0701 at Pages 59-66, 1st MOU dated 01.10.2017 at Pages 68-75, 2nd MOU dated 01.10.2018 due to further default of payment at pages 76-87. Kindly note the cheques for payment are at Pages 84-87. b) Allotment letter for Unit B1-0501 Pages 100-113, Allotment letter for B1-0502 at Pages 114-125, MOU dated 07.06.2017 at Pages 127-134, MOU dated 01.07.2018 due to further default of payment at pages 135-144, 149, 153. Kindly note the cheques for payment are at Pages 141-144, 149, 153. c) Allotment letter for Unit A1-2503 Pages 160-173, Allotment letter for A1-2505 at Pages 174-177, Allotment letter for A1-2506 at Pages 178-181, MOU dated 01.10.2018 at Pages 183-194. Kindly note the cheques for payment are at Pages 191-194. 3. That the Corporate Debtor in the terms of the MoU had assured the Appellant that the abovementioned flats shall be allotted in the favor of the Appellant in case the Corporate Debtor failed to pay the outstanding....
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....ng that the claims of the appellant were liable to be admitted in view of the legal and binding MoUs and Builder Buyer Agreements and the cheques which have been executed by the Corporate Debtor in favour of the Appellant? 3. Whether the Adjudicating Authority was gravely mistaken in dismissing the application of the Appellant on conjectures and surmises just because the Appellant could not file at that time the invoices relating to the said agreements, whose existence was not in dispute as they have been recognized in the MOU? 4. Whether the existence of cheque for the amount due as a security in itself is not an admission of debt or liability which is to be discharged by the Corporate Debtor and a sufficient proof of liability having a right of payment and legal remedy for breach? SUBMISSIONS: 1. That it is humbly submitted that the Resolution Professional has fully relied upon the data maintained by the Corporate Debtor and has neglected all the reliable proofs submitted by the Appellant. It is pertinent to mention that if only books of accounts and tally data of the Corporate Debtor are significant, in that case the purpose of calling for claims from ....
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....nts as required under Regulation 8A of The Insolvency & Bankruptcy Board of India (Insolvency Resolution Process for corporate persons) Regulations 2016. The sub-rule 2 of Regulation 8A reads as under:- "(2) The existence of debt due to a creditor in a class may be proved on the basis of- (a) the records available with an information utility, if any; or (b) other relevant documents, including any- (i) agreement for sale (ii) letter of allotment (iii) receipt of payment made; or (iv) such other document, evidencing existence of debt." 7. That as per Regulation 14(2) of IBC the RP was to only collate and submit the claims based on evidence, and record of the Corporate Debtor or as filed by the Claimant/Appellant and not determine the claim. The claim of the Appellant could not have been rejected merely because the Appellant could not bring on record the invoices raised by him which was otherwise available in the records of the corporate debtor. In any case the same has been filed by the Appellant in the present appeal. Further any taxes has been paid or not cannot be the reason to reject the claim as that could n....
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....e Resolution Professional may be directed to accept the claim submitted by the applicant in full along with interest. Alongwith written submissions copy of judgements have also been enclosed. However, in view of peculiar facts and circumstances we are not referring or discussing those materials. 6. In the present appeal counter affidavit has also been filed on behalf of Respondent No.1 and in para 6 of its counter affidavit it has been indicated that for the first time the appellant has brought on record alleged three invoices amount to Rs.2.90 crores only whereas the appellant had claimed for Rs.4.8 crores. Certain allegations have also been made with indication as if the said invoices were self generated. It is apt to reproduce para 6 of the counter affidavit; "6. It is submitted that Appellant for the very first time before this Hon'ble Appellate Tribunal has produced the alleged invoices and Form 26AS wherein it has been alleged that the Appellant was providing certain consultancy services to the Corporate Debtor. However, the said invoices do not contain any stamp of the Corporate Debtor as a token of acknowledgement and seems to be self-generated invoices which....
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....be untrue particularly in view of the fact that MOU was signed by only one Director of the CD and the appellant. It was not even witnessed by anyone. No witness has put signature on the said agreement. He has also raised doubt on the veracity of allotment letters/agreements. All those documents were signed by only two persons i.e. one by only director and another by the appellant. In sum and substance he tried to persuade that MOU/agreements/allotments letters were not genuine. 8. Without going into the merit of the case we are of the opinion that since learned Adjudicating Authority in its impugned order has noticed that MOUs which were the basis for claim appears as forged documents, there is no reason to place reliance on such MOUs. Moreover, on record there is nothing to show as to whether for rendering services of liaisoning any agreement was entered in between the appellant or CD. It is unbelievable that the appellant is claiming for more than Rs.4 crores as rendering services of liaisoning to the CD still on record there is no chit of paper as to on what terms and conditions the appellant was rendering liaison services to the CD or its unit. Moreover, once the Adjudicatin....