TaxTMI 
TaxTMI 
2024 (12) TMI 884
X X X X Extracts X X X X
X X X X Extracts X X X X
....ompany Law Tribunal, Mumbai Bench - IV) admitting a Section 7 Application filed by the Respondents No. 1 to 3 herein. The Appellant, Suspended Director of the Corporate Debtor, Atul Projects India Private Limited, aggrieved by the Order has come up in this Appeal. 2. Brief facts of the case necessary to be noticed for deciding the Appeal are : i. A Memorandum of Understanding (MoU) was entered on 16.05.2010 between the Owners and M/s. Atul Projects India Private Ltd., the Developers for redevelopment of Project on the piece of land admeasuring 576.93 m², Malabar and Cumbula Hill Division Mumbai. ii. Under the MoU, the Developer had proposed to pay amount of Rs.9.40 Crores to Owners and Rs.3.5 Crores to the Confirming Parties, detailed terms and conditions for carrying out the redevelopment and payment as well as details of total 22 floors to be redeveloped was contained in the MoU. iii. Thakkars, namely Deepak Vinod Thakkar and Prashant Vinod Thakkar entered with Articles of Understanding (AoU) with the Developers who desired to jointly redevelop the Project. iv. AoU was also executed on same date 16.05.2023. Under the AoU, Developers wer....
X X X X Extracts X X X X
X X X X Extracts X X X X
....did not commence. The Corporate Debtor send a Complaint dated 04.07.2019 to the Senior Police Inspector, giving the details of transactions entered between the Developers, Deepak Vinod Thakkar and Prashant Vinod Thakkar. The Complaint mentioned that amount paid to the Investors payments were made to the Owner of Rs.3 Crores. On request of the Investor, amount of 1.3 Crore was returned. xii. It was stated by the Appellant that Investors got their full money refund but Appellant came to know that Investors amount taken from Appellant by Thakkars have not given to Investors. Request was made to register a case against the Vendors who have received the money to pay to Investor and have not paid. xiii. The copy of the Complaint was also forwarded to Respondents No. 1 to 3. Respondents No. 1 to 3 after receiving the complaint sent a Legal Notice dated 30.07.2019 to the Appellant stating that only amount of Rs.1.3 Crores was received by Investors till date and no further amount of Rs.3 Crores have been received and total outstanding as on 28.07.2019 is Rs.5,96,36,330/-. Agreement dated 16.05.2010 was terminated with immediate effect. xiv. A Reply was sent to the....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Appellant who was Developers with Thakkars on 16.05.2010. Three agreements were executed on the same day in which the Developers were confirming party on the second agreement. Under the agreement, it was decided that the developer will develop the property in joint venture with the Thakkars and Thakkars for raising the investment has agreed with the investors that investors will invest an amount of Rs.6 Crores out of which Rs.3 Crores was advance for development. Agreement further contemplated that in event the development is not carried out within six months from the date of agreement then a grace period of one month shall be provided to the developers and even if developers fail to enter into agreement, investors shall have option to terminate the instant agreement and developers will return the amount with 18% interest. Developers admittedly has returned the amount of Rs.1.3 Crores and according to the case of the Appellant, amount of Rs.1.7 Crores was refunded in the years 2010 to 2014 to Thakkars and one entity as mentioned in the Appeal. It was submitted that the said amount was to be paid to the investors. The case of the Appellant is that after 2011 there was complete sile....
X X X X Extracts X X X X
X X X X Extracts X X X X
....at project did not proceed any further and police complaint was filed by the developers when they came to know that amount of Rs.1.7 Crores which they have paid towards liquidating the entire investment has not been given to the investors- Financial Creditors. The Adjudicating Authority in paragraph 7.4, has prima facie misconstrued the judgment of the Hon'ble Supreme Court in Suo Motu Writ Petition. Admittedly, Application under Section 7 was filed on 11.08.2022, hence, present was not a case during which period benefit of limitation under Suo Motu Writ Petition was allowed by the Hon'ble Supreme Court i.e. till 28.02.2022 with 90 days' grace period in filing the Application. We further find substance in the submission of the Appellant that agreement did not proceed any further in 2010 and as per the agreement itself after 6 months + 1 month, cause of action to the Financial Creditor arose to take appropriate action for recovery of their money. It is submitted that cause of action shall not depend on the investors to excise their option after 9 years. 8. We prima facie find that Application filed under Section 7 ought not to have been admitted and case has been made out t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the share of the Vendors i.e., Thakkars. The AoA was entered between Thakkars, and the Investors in which document Corporate Debtor was only Confirming Parties. The financial facilities were obtained by Vendors from the Investors and there was no financial transaction between Developers and Investors. Developers were only a Confirming Party to the AoA. It is submitted that payment of Rs.1.3 Crores to the Investors by Developers is undisputed. The rest of the amount was also paid by the Developers to Thakkars, which payments were made till 2014. It is submitted that at no point of time, the Investors made any demand from the Corporate Debtor of any balance amount. Payments having already been received by Thakkars of the balance amount for payment to the Investors, there was no debt or default on the part of the Developers. It is submitted that when the Developers came to know that amount received from Developers by Vendors, i.e., Thakkars have not been paid to the Investors, a Police Complaint was filed by the Developers himself on 04.07.2019 complaining the acts of Vendors. It is submitted that Investors have filed Section 7 Application whereas neither there was debt nor there was ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f of the Investors is incorrect. No proof of payments of Rs.1.7 Crores as alleged by the Appellant has been brought on record, showing any payment to the Investors. Even the payments as referred to in Paragraph 7(n) of the Appeal are not payments to the Investors, and the said payments cannot be said to be in addition to payment of Rs.1.3 Crores as claimed by the Appellant. The aforesaid payment of Rs.1.7 Crores as claimed by the Appellant were made prior to payment of Rs.1 Crore 30 Lakhs. The Corporate Debtor confirmed and accepted the letter dated 15.10.2011, which mentions payment of only 1.3 Crores, had any other payment was made apart from Rs.1.3 Crores Corporate Debtor in normal course ought to have objected the figure of Rs.1.3 Crores. According to the Police Complaint filed by the Developers allegation is that Thakkars had paid foul with the Corporate Debtor in respect of payment which was made to the Investors. The Appellant cannot be allowed to take any contrary stand that he has discharged the rest of the amount. It is submitted that Corporate Debtor is in continuous obligation, hence the Petition cannot be said to be barred by time. Learned Counsel for Respondents No. 1....
X X X X Extracts X X X X
X X X X Extracts X X X X
....We proceed to notice the three transactions of the same date dated 16.05.2010 and the relevant Clauses contained in the said transaction for answering the question of limitation for filing Section 7 Application. 11. The first transaction dated 16.05.2010 referred to as MoU was entered between the Owners, the Confirming Parties and the Developers, the Corporate Debtor M/s. Atul Projects India Private Limited being Developer. As per Clause 4 of the MoU in consideration of Owners appointing the Developers to redevelop the said property, Developers were to pay to the Owners sum of Rs.9,40,00,000/-. Clause 4 of the MoU is as follows: "4. In consideration of the Owners appointing the Developers to redevelop the said Property, the Developers shall pay to the Owners net sum of Rs.9,40,00,000/- (Rupees Nine crores fifty Forty lakhs only) which shall be paid in the following manner:- (a) Rs.3,00,00,000/ - (Rupees Three crores only) paid by the Developers to the Owners on or before execution of this Memorandum of Understanding (the receipt whereof the Owners do hereby admit and acknowledge). The said amount has been deposited by the Developers with the Owners Advocates & ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ty along with the Developers in joint venture and that the stake of the PARTNERS in the said Project shall be forty percent accordingly in joint venture of the ratio of 1/3 : 2/3 (PARTNERS : Developers), the PARTNERS shall jointly redevelop the said Property and shall take active part in the said redevelopment. Investment always in the ratio as mentioned above 1/3 to 2/3 of Profit & Loss also in the same ratio." 14. The AoU further noted that the Partner shall be entitled sell/dispose of deal with 18th and 19th floor in the new building and Partner has sold 18th floor to Investor. Clause 2 is as follows: "02. It is hereby agreed by and between the parties hereto that after providing the Owners and Confirming Parties permanent alternate accommodation, the Developers shall be entitled to sell/dispose of / deal with at its discretion four entire floors of in the new building of not less than 1350 - 1400 square feet each of carpet area and the PARTNERS shall be entitled to sell/dispose of / deal with at their discretion two entire floors (namely the 19th and the 113')' floors) in the new building of not less than 1350 - 1400 square feet each of carpet area (apart fr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....oor. Clause 4 of the AoU is as follows: "04. It is hereby agreed by and between the parties hereto that since the PARTNERS did not have the requisite initial investment, it was agreed by the Developers that the PARTNERS can obtain the same from the Investors, namely, Mr. Manish S. Pardasani, Mr. Savinder Singh Lamba and Mr. Kulbir Singh Rekhi, who agreed to pay the aforesaid sum of Rs.6,00,00,000/- (Rupees Six Crores only) in lieu of, eighteenth floor) in the same manner as to be paid hereinabove and in consonance of the said MOU." 17. Clause 6 contained a stipulation that in event Project does not commence Investor shall be entitled to claim back the investment along with 18% p.a., which the Partners have agreed and guaranteed to return. Clause 6 is as follows: "06. It is hereby explicitly agreed and confirmed by and between the parties hereto that the Investors have agreed to invest on the sole condition that under no circumstances the Investors shall be liable and/or exposed to any penalty and/or expenses and/or claim so imposed and/or incurred and/or sustained upon the Developers and/or the PARTNERS by any governmental authorities and/or concerned authoriti....
X X X X Extracts X X X X
X X X X Extracts X X X X
....said MOU. The said amount has been deposited by the Developers with the Owners' Advocates & Solicitors, M/s. Pravin Mehta And Mithi & Co., and the same shall remain deposited with them and shall be released with interest in terms of the said MOU. (b) a sum of Rs.3,50,00,000/- (Rupees Three Crores Fifty Lakhs only) on the Confirming Parties, (who are occupants of various premises in the said Property) handing over vacant possession of their premises, in their respective occupation against the Developers entering into separate Agreement, setting out that the turns of payment of the compensation to such individual occupant tenant in lieu of Temporary Alternate Accommodation during the period of redevelopment of the said Property, and then handing over Permanent Alternate Accommodation in the new building, to be constructed in the said Property. 02. It is hereby agreed that the said sum of Rs.600,00,000/- (Rupees Six Crores only) shall be paid by the Investors in the following manner: (a) A sum of Rs.3,00,00,000/- (Rupees Three Crores only) shall be paid by the Investors to the Developers on the execution of the instant AOA; (b) The balance sum o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....aid MOU or otherwise. In the event the said Project does not commence, then the Investors shall be entitled to claim back their investment along with 18 % interest per annum which the Developers have agreed and guaranteed to return." 22. Class 12 provided that Developers and Vendors shall be equally and jointly and severely liable to the Investors towards the sum of Rs.6 Crores. 23. From the facts brought on the record, it is clear that after payment of Rs.3 Crores made by Investors which in turn was deposited with Advocates & Solicitors of the Owners as per the terms and conditions of MoU dated 16.05.2010. The fact of receipt of Rs.3 Crores and deposit by the Developers is not denied. The Parties are also at Agreement that amount of Rs.1.3 Crores was refunded by the Developers to the Investors by a cheque dated 15.10.2011, which was encashed on 04.11.2011. 24. The facts brought on record indicates that Project could not commence, the building Plan was neither approved within 6 months nor any further steps were taken towards redevelopment of the land. The case of the Corporate Debtor was that during the period that Project having not commenced, it was agreed between the De....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ng as contemplated under the provisions of Indian Penal Code. Since I have already paid to owner of plot Rs.3 Crore and Rs.2.20 Lakhs to Solicitor, the amount paid by Investor to me, on behalf of Vendors was lying unused. So on request of Vendors and on faith, I have paid on temporary basis till it is require for development Rs. 30 Lakhs on 19/05/2010 to Deepak Thakkar, one of the Vendors and Rs. 40 Lakhs to Vendors company on 19/05/2010. Thereafter on request of Investor I have returned Rs.1.30 Crore out of Rs.3 Crore on dated 10/10/2011. Vendors inform, since investor is his friend, this flat to be treated as cancel and he will pay the amount slowly, due to relation with Investor and market condition. Due to D.C. rule and other issue development was not happening, so again paid Rs. 30 Lakhs to Deepak Thakkar on 07/01/2011 and Rs.20 Lakhs to Vendor's company on 26/08/2011. Still no development. Vendors finally took call to refund full amount to Investor with Investors Confirmation so accordingly, refund to Investor through Vendors Rs.50 Lakhs on 01/06/2012 and Rs.20 Lakhs on 11/07/2013. Lastly paid on Rs.5 Lakhs on 06/04/2014 and confirmatio....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of October 2011; once again our clients called upon you to inform our clients about the progress of the Said Project when you once again informed our client that the delay is due to the various changes and modifications to the Development Control Regulations, etc. and further sought time; when our client called upon you to return the Said Initial Investment Amount along with interest accrued thereon at the rate of 18% per annum from the date of making payment of the Said Initial Investment Amount till actual payment and/ or realization. That, you pleaded not to terminate the Said AOA and remain invested in the Said Project and further induced our client by paying a sum of Rs.1,30,00,000/- (Rupees One Crore Thirty Lakhs only) to our clients on the understanding that the Said AOA shall be in force and effect and that our clients will be liable to pay the Balance amount as well as a sum of Rs.1,30,00,000/- (Rupees One Crore Thirty Lakhs only) simultaneously on execution of the Agreement for Sale for the Said Flat pursuant to you obtaining the IOD and CC for the Said Project. Our clients instruct that your aforesaid act of returning a sum of Rs.1,30,00,000/- (Rupees One Crore and Thir....
X X X X Extracts X X X X
X X X X Extracts X X X X
....al Creditors and alleged that offence of criminal conspiracy is committed against the Corporate Debtor. 28. After noticing the relevant Clauses of the Agreement, Police Complaint dated 04.07.2019 and letter dated 30.07.2019 sent by Financial Creditor terminating the Agreement, now we proceeded to consider the issue of limitation for filing Section 7 Application. The case of the Appellant is that the Project having not commenced within 6 months and 1 month grace period after execution of MoU dated 16.05.2010, the cause of action arose for the Financial Creditor to claim refund of the amount along with interest after expiry of 7 months from 16.05.2010, the period for filing an Application arose to the Financial Creditor which could not remain suspended on the pretext that Financial Creditor has not exercised their option to terminate the Agreement. On the contrary, the submission of the Financial Creditor is that as per Clause 6 of the AoA, the Financial Creditor had option to terminate the Agreement which option having been exercised only on 30.07.2019, limitation for filing Section 7 Application shall commence on 30.07.2019. In the Reply which was filed by the Corporate Debtor t....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... is also denied that same were provided for the time values of money." 29. Limitation for filing an Application under Section 7 of the IBC is governed by Article 137 of the Limitation Act, 1963, which is a settled legal position. Article 137 of the Limitation Act, 1963 is as follows: "137. Description of application: Any other application for which no period of limitation is provided elsewhere in the Division. Period of Limitation: Three Years. Time from which period begins to run: When the right to apply accrues." 30. The question to be considered is as to when the cause of action arose to the Financial Creditor to file an Application, claiming refund of its amount along with the interest as per AoA dated 16.05.2019. 31. We have noted relevant causes of MoU, AoU and AoA all dated 16.05.2019. Amounts of Rs.3 Crores to be paid at the time of execution of MoU. Amount of Rs.3 Crores was paid by the Financial Creditor, which amount was deposited before the Advocates & Solicitors of the Owners, as per the receipt and acknowledgement of the amount by Developer is on the record. The MoU clearly provided that Developer were to get the Plan sanctioned within a period of....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... option by the Financial Creditor. When the Project does not commence, the cause of action arose to Financial Creditor to claim back their investment. Admittedly, building plans were never approved within 6 months as was contemplated in the MoU. No further steps were taken under the MoU or AoU and AoA after 16.05.2010, thus it is undisputed that Project never commenced. Whether the cause of action will not arise for Financial Creditor to claim back their amount till they exercise their option under Clause 6 is question to be answered. We are of the clear opinion that the cause of action which accrued to Financial Creditor under Clause 8 is independent from exercise of any option under Clause 6. Under Clause 8, the cause of action arose to the Investor when project did not commence without the Agreement been terminated by the Financial Creditor under Clause 6. Thus, cause of action and running on the limitation under Clause 8 cannot be arrested or controlled by exercise of option by Financial Creditor in Clause 6. 33. There is no material on record to indicate that project has commenced at any point of time even after 6 months of execution of MoU on 16.05.2010. The building plan ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e Supreme Court in `Samrudhi Co-operative Housing Society Limited' Vs. `Mumbai Mahalaxmi Construction Private Limited' reported in Civil Appeal No. 4000/2019 decided on 11.01.2022. The above case arose out of Order of National Consumer Disputes Redressal Commission, in the above case, Complaint was filed by the Appellant to refund the excess taxes and charges paid by the Appellant to the Municipal Authorities due to the alleged deficiency of service of Respondents. The question was as to whether the Complaint was barred by limitation. In the above case, the Hon'ble Supreme Court has noted the provisions of Section 22 of the Limitation Act, 1963, which provides for computation of limitation in the case of a continuing breach of project of Contract.... Hon'ble Supreme Court held that since there was continuous failure to obtain a occupancy certificate, which was a breach of obligation, hence it was a continuous wrong. Following was laid down in Paragraph 18 : "18 Based on these provisions, it is evident that there was an obligation on the respondent to provide the occupancy certificate and pay for the relevant charges till the certificate has been provided. The respondent ha....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Rs.6 Crores was to be paid invested by the Financial Creditor out of which Rs.3 Crores was paid on execution of MoU. The Developers and AoA Clause 6, which we have noticed above, pleaded following: "In the event, the said Project commenced then the Investor shall be entitled to claim back their investment along with 18% p.a., which the Partners have agreed and guaranteed to return." 40. AoA between the Thakkars and Investors also provided that Developers and Vendors (Thakkars) shall be equally and jointly liable to Investor towards the aforesaid amount and the amount of investment made by the Investor to the Developers was on behalf of the Partners, i.e., Thakkars. In the above clause of the Agreement between the Parties, the claim of repayment by the Developers to Thakkars need to be looked into. After execution of Agreement dated 16.05.2010 an acknowledgement of amount of Rs.1.3 Crores received by the Financial Creditor vide letter dated 15.10.2011, the first correspondence between the Parties which is on the record before the Police Complaint i.e., 04.07.2019 sent by the Corporate Debtor, in which payment of various amounts to Thakkars and his Company has been mentio....
X X X X Extracts X X X X
X X X X Extracts X X X X
....assigned to the Thakkars. Therefore, the liability to repay the said debt, qua the Respondents No. 1 to 3 herein, in terms of the AoU, is also of the Thakkars, and not of the Corporate Debtor. Without prejudice, Corporate Debtor had duly made good its liability towards the Thakkars by paying them the amounts eventually due on them qua the Investors/Respondents No. 1 to 3. Therefore, Respondents No. 1 to 3 herein, i.e., the Petitioners in the underlying Company Petition cannot claim the alleged Financial Debt against the Appellant or Atul Project and ought to have filed the said petition against the Thakkars." 42. In the Reply, which was filed to Section 9 Application by the Corporate Debtor, there was clear and categorical pleading of the refund of the aforesaid amount to the Thakkars and its Companies. In the Reply which was filed by the Corporate Debtor, it was also pleaded that Thakkars and Financial Creditors are friends and they have colluded with each other with mala fide intention to cheat the Corporate Debtor which pleadings are in Paragraph 11 to the following effect: "11. Without Prejudice to what has been stated herein above, it is submitted that Manish Shric....
X X X X Extracts X X X X
X X X X Extracts X X X X
....irector. Hereto annexed and marked Exhibit - "2" is the copy of the letter dated NIL, addressed to pay the balance amount to Mr. Deepak Thakkar. It is pertinent to note that said letter is signed by Mr. Manish Pardasani, Director of Mumbai Wines & Traders Private Limited. Accordingly, Atul Projects India Private Limited as per the directions of Mumbai Vines & Traders Private Limited paid the amount to Mr. Deepak Thakkar and therefore the entire amount of Rs.3,00,00,000/- was fully repaid by Atul Projects India Private Limited. Hereto annexed and marked Exhibit - "3" the copy of Bank Statement viz. Citi Bank of the Corporate Debtor showing proof of payment to Mr. Thakkar and Vision Infrastructure Private Limited. The Corporate Debtor craves leave to refer to and rely upon the records from the ROC, Mumbai showing Mr. Deepak Thakkar as Director of copy of signatory." 44. The payment of Rs.1.70 Crores which was claimed by the Corporate Debtor to be paid to Thakkar and his Companies Vision Infraventures Private Limited are duly supported by Bank Statement. Learned Counsel for the Respondent has contended that Manish Pardasani has never gave any written instructions to the Corporate D....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Debtor towards refund of Rs.3 Crores speaks for itself. As noted above, letter dated 15.10.2011 was sent by the Financial Creditor, acknowledging the receipt of the payment of Rs.1.3 Crores. A Submission was advanced by the Counsel for the Financial Creditor that after receipt of the letter dated 15.10.2011, Corporate Debtor never wrote back to the Financial Creditor that there was other amounts paid by to the Thakkars. The letter dated 15.10.2011 which was sent by the Financial Creditor was only towards acknowledgement of Rs.1.3 Crores. When we read the said letter, the said letter does not indicate that Financial Creditor had complaint of non-receipt of any balance amount apart from Rs.1.3 Crores. Thus, the said letter 15.10.2011 cannot read to mean that no amount was paid by the Corporate data towards refund of Rs.3 Crores received by them. 47. The Financial Creditor who has advanced Rs.3 Crores for a Project to start after expiry of 7 months which was a maximum period for a Project to start having come to an end, has not even written a letter demanding any amount for long more than 8 years to the Corporate Debtor demanding any amount speaks for itself that the Financial Cred....
X X X X Extracts X X X X
X X X X Extracts X X X X
....egation is raised to go into the same. In case, such an objection is raised or application is filed before the Adjudicating Authority, obviously, it has to be dealt with in accordance with law. The plea of collusion could not have been raised for the first time in the appeal before the NCLAT or before this Court in this appeal. Thus, we relegate the appellant to the remedy before the Adjudicating Authority." 50. We have also looked into the Reply which was filed by the Corporate Debtor to Section 7 Application, although it was pleaded that there is a collusion between Financial Creditor and Thakkars and they have colluded with each other with mala fide intention to cheat the Corporate Debtor, but there are no averment that Section 7 Application has been filed fraudulently or with malicious intent. We, thus, are of the view that in the facts of the present case, especially when Corporate Debtor has not pleaded that proceedings have been initiated maliciously with fraudulent intent, we are of the view that ingredients of Section 65 are not fulfilled, hence Notice under Section 65 is discharged. 51. There is one more question, which need to be noticed, by Order dated 02.08.2023 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....herein; Financial Creditors and Corporate Debtor. The Financial Creditors in terms of the Said AOA agreed to invest an initial investment amount being a sum .of Rs.6,00,00,000/- (Rupees Six Crores only) in lieu of allotment of one floor in the new building admeasuring not less than 1350-1400 square feet of carpet area, being the 18thfloor in the new building along-with the car decks for the 18th floor (collectively referred to as the "Said Flat") of the Building that was to be constructed/ developed on the Said Property which amount was to be paid in the manner as enumerated in the Said AOA. The Financial Creditors invested an Initial amount of Rs. Rs.3,00,00,000/- (Rupees Three Crores only) on execution of the Said AOA and the balance sum of Rs.3,00,00,000/- (Rupees Three Crores only) was required to be paid by the Financial Creditors, subjected to the Corporate Debtors duly complying with all the obligations under the Said MOU including but not limited to obtaining Intimation of Disapproval ("IOD"), Commencement Certificate ("C. C."), execution and registration of an Agreement for Sale of the Said Flat, etc. The Said AOA categorically records that the Corporate Debtor sh....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nvest in the Said Project. The Corporate Debtor had deliberately and intentionally failed to comply with its obligations under the Said MOU and neglected to return the aforesaid amount invested by the Financial Creditor and hence this Application / Petition is being preferred by the Financial Creditor." 53. When we look into the above Optional Certificate, the entire case which is set up by the Financial Creditor has been stated by the IRP and has been verified. Rule 9 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 refers to IRP which provides as follows: "9. Interim resolution professional.-(1) The applicant, wherever he is required to propose or proposes to appoint an insolvency resolution professional, shall obtain a written communication in Form 2 from the insolvency professional for appointment as an interim resolution professional and enclose it with the application made under rules 4, 6 or 7, as the case may be. (2) The application under sub-rule (1) shall be accompanied by a certificate confirming the eligibility of the proposed insolvency professional for appointment as a resolution professional in accordance with ....