TaxTMI 
TaxTMI 
2025 (5) TMI 1837
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....dtech Private Limited (Corporate Debtor) through its Resolution Professional Mr. Anand Sonbhadra is the (contesting) Respondent No.1 herein. M/S Concord Infrastructure Private Limited (Operational Creditor) is the (non- contesting) Respondent No.2 herein. 3. The Appellant submitted that it is a company incorporated under the Companies Act, 1956, and has been engaged in the real estate business since its inception. The Appellant submitted that it has maintained a business relationship with the respondent Corporate Debtor since May 2015 with an understanding reached with Shubhkamna Advert Buildtech Pvt. Ltd., a sister concern of the Corporate Debtor, formalized through a letter of intent dated 14.05.2015 which could not be implemented. Consequently, the Corporate Debtor proposed a Joint Development Agreement (JDA) dated 06.03.2016 with the Appellant, which included Clause 5 which explicitly stipulated that payments previously made by the Appellant to the Corporate Debtor's sister concern would be treated as payments to the Corporate Debtor itself, thereby formalizing the financial reconciliation between the parties. 4. The Appellant submitted that the respondent Corporate De....
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....utstanding disputes and claims comprehensively. 9. The Appellant submitted that a dispute arose between the Corporate Debtor and the Operational Creditor concerning payments under the agreement dated 28.05.2018. The Appellant stated that due to the non-payment of dues, the Operational Creditor filed an application bearing IB No. 1059/ND/2018 in July 2018 before the Adjudicating Authority which was admitted under section 9 of the code after passing an ex-parte order on 26.11.2018, appointing an Interim Resolution Professional (IRP) as proposed by the Operational Creditor and the Corporate Debtor was subjected to CIRP. 10. The Appellant submitted that on 07.02.2019, the first meeting of the Committee of Creditors (CoC) was conducted by the IRP and during the meeting, the IRP recorded in paragraph 11 of the minutes that Ms. Shalini Singh, a Director of Anindya Infrastructures Pvt. Ltd., stated that her company was carrying out the construction of Tower T-9, which had been purchased from Shubhkamna Buildtech Pvt. Ltd. Furthermore, she mentioned that the remaining five towers were being managed on behalf of Shubhkamna Buildtech Pvt. Ltd. and SKCWA, an Association of Flat Buyers, u....
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....0.05.2019, which directed that construction work must continue and the company remain a going concern under the supervision of the Resolution Professional, the Resolution Professional deliberately refused to recognize the status of the Appellant which is evident from the minutes of the 3rd CoC meeting dated 18.05.2019, which recorded allegations that Smt. Shalini, Director of Anindya Infrastructures Pvt. Ltd., "forcibly entered into said property and took possession of assets and premises by misbehaving with security personnel." The Appellant contended that these allegations are baseless, as it was already on record before the Resolution Professional that Smt. Shalini was the Director of Anindya Infrastructures Pvt. Ltd., supported by Form B, the Joint Development Agreement dated 06.03.2016, and the full and final settlement agreement dated 09.05.2018. 15. The Appellant submitted that on 19.08.2019, the Adjudicating Authority issued an order in the present proceedings, directing the issuance of bailable warrants against Piyush Tiwari and Deep Tiwari, former Directors of Shubhkamna Buildtech Pvt. Ltd. The Appellant submitted that the Directors are still absconding, and there has ....
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....s adherence to due process and his commitment in recognizing legitimate claims associated with Tower T-9 and its flat buyers. 18. The Appellant submitted that the matter regarding the alleged cash register and its entries can only be clarified if the Resolution Professional gains access to the register or if it is provided by the directors, representatives, account department, or officers of the Corporate Debtor. The Appellant submitted that however, in the present case, the directors are absconding, and no inquiry has been conducted by the Resolution Professional to ascertain the status of allotment of flats to the Appellant. 19. It is the case of the Appellant that in view of these circumstances, the Appellant filed an application under Section 60(5) of the Code, 2016, read with Rule 11 of the NCLT Rules, 2016, vide M.A. No. 369/2019 which was disposed of by the Impugned order dated 17.03.2021. 20. The Appellant submitted that the Appellate Tribunal erred in rejecting its claims under the Joint Development Agreement ('JDA') dated 06.03.2018 on the hyper-technical ground of disqualification of the signatory directors, while simultaneously permitting the CIRP proceedings t....
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....icating Authority through its order dated 26th November 2018. In the same order, Ms. Gurkamal Hora Arora (Registration No. IBBI/IPA-001/IP-P00588/2017- 18/11958) was appointed as the IRP. Subsequently, public announcements in Form A were published twice, on 29th November 2018 and 5th January 2019, in compliance with the procedural requirements under the Code. 27. The Respondent No. 1 submitted that the first meeting of the CoC was conducted by the IRP on 7th February 2019 and during this meeting, the CoC resolved to replace the then IRP with Mr. Anand Sonbdhara as Respondent No. 1 as the Resolution Professional for the Corporate Debtor, a decision confirmed by the Adjudicating Authority through its order dated 12.02.2019. Subsequently, the second CoC meeting was conducted by Respondent No. 1 as Resolution Professional, on 11.03.2019. The key agenda items discussed included the preparation of the Information Memorandum, transfer of documents from Interim Resolution Professional to Resolution Professional, appointment of Registered Valuers and forensic auditors, and approval of resolutions for the bid evaluation matrix, Form G, eligibility criteria, and other procedural matters es....
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.... 31. The Respondent No.1 further submitted that after the approval of the resolution plan by the CoC, the Resolution Professional ensured compliance with procedural requirements and addressed claims submitted during the CIRP. The Respondent No.1 clarified that the Appellant submitted its claims as an unpaid operational creditor in Form B on 24.02.2019, however, in response to this claim, the Resolution Professional sent a detailed reply on 11.04.2019, stating that the documents submitted were insufficient to substantiate the claim. 32. The Respondent No. 1 submitted that following the email reply sent by the Resolution Professional on 11.04.2019 to the Appellant seeking more information and directions the Appellant failed to provide any additional documents to substantiate its claim and furthermore, the Appellant did not approach the Adjudicating Authority for any remedy against the rejection of its claim by the Resolution Professional. On 27.08.2019, the Appellant made another inquiry regarding the status of their claim without submitting the requested documents. It is the case of the Appellant that he as the Resolution Professional responded on the same day to the Appellant, ....
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....laimed debt was not owed by the Corporate Debtor to the Appellant. Instead, it was explicitly stated that the payment of Rs. 2.5 Crores were made by the sister concern of the Corporate Debtor to the sister concern of the Appellant and would be considered as payment under the Joint Development Agreement dated 06.03.2018. The Respondent No.1 submitted that the Appellant cannot be classified as a creditor of the Corporate Debtor. 36. The Respondent No. 1 submitted that the Appellant has failed to provide any details regarding transactions in which money was remitted to the Corporate Debtor. Furthermore, no proof of disbursement or evidence of any payment was attached to the claim form submitted by the Appellant. The Respondent No.1 highlighted that the sister concern of the Corporate Debtor is a distinct legal entity and therefore, any claim related to alleged transactions with the sister concern cannot be considered a valid claim in the CIRP of the Corporate Debtor. 37. The Respondent No. 1 submitted that the settlement agreement dated 09.05.2018, signed by Mr. Piyush Tiwari on behalf of the Corporate Debtor, is not tenable in law as Mr. Tiwari was disqualified from acting as a....
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....separate legal entity distinct from the Corporate Debtor, as such, the letter of intent is irrelevant to the current proceedings and cannot be considered in relation to the CIRP of the Corporate Debtor. 41. The Respondent No. 1 submitted that it is unclear which subsidiary the Appellant's sister concern allegedly made payments to, and no specific details have been provided to substantiate these claims. The Respondent No.1 submitted that the Joint Development Agreement dated 06.03.2018 cited by the Appellant has no bearing on the current dispute raised in this application. The Respondent No.1 emphasized that the said Joint Development Agreement was executed by a disqualified director of the Corporate Debtor, Mr. Piyush Tiwari, and therefore lacks legal sanctity. The Respondent No.1 alleged that the Appellant's actions in collusion with Mr. Tiwari was deliberately done to raise frivolous liabilities upon the Corporate Debtor which warrant scrutiny. The Respondent No.1stated that Mr. Tiwari had been disqualified by the MCA, and it remains ambiguous how the Appellant proceeded to enter into the JDA under such circumstances. Moreover, the Appellant has admitted that the consi....
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....ements with disqualified directors of the Corporate Debtor. The Respondent No.1 stated that the information regarding disqualified directors was made publicly available on the MCA website on 12.09.2017 and was affirmed by the MCA through an affidavit filed before the Adjudicating Authority. This public disclosure imposes an obligation on parties dealing with such directors to exercise due diligence, which the Appellant has failed to do and consequently, the settlement agreement cited by the Appellant has no bearing on the present matter and cannot be relied upon in these proceedings. 45. The Respondent No. 1 submitted that the Appellant failed to provide any of the information requested by the Resolution Professional. Furthermore, the Respondent No.1 asserts that the Appellant's claim regarding ongoing construction work is misleading and to substantiate this, the Respondent No.1 referred to the email sent by the IRP to Ms. Shalini, Director of the Appellant, on 08.12.2018. demonstrating the IRP's attempts to obtain necessary information from the Appellant, which were not adequately addressed. 46. The Respondent No. 1 clarified that no substantiation of the claim was p....
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.... Hundreds only) per square feet of FAR to be utilised by the Developer for the construction of the Studio Apartments in the said Tower totalling to approximately Rs. 11,27,56,000/- (Rupees Eleven Crores Twenty Seven Lakhs Fifty Six Thousands only) as consideration under the present agreement towards acquiring the exclusive rights for sale, construction and development of the studio apartments to be constructed in the said Tower along with the duty to complete the development and construction of the whole of the said Tower including the parking and the commercial areas contained in the said Tower. The said consideration shall be paid by the Developer lo the owner in a maximum period of 12 (twelve) months from the date of execution of the present Construction Contract (Agreement). The cost of Construction and Development of the Studio Apartments and the two basement parking floors shall be borne and paid exclusively by the Developer. The developer shall also be allotted 176 covered parkings in the said Tower in lieu of the Construction and Development of two basements for the Parking in the said Tower. It is agreed by and between the parties that the cost of construction of the comme....
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....y shall be collected by the Developer and Guarantors from the prospective Developers only in form of crossed cheques/pay orders/demand drafts drawn in favour of the Developer Company. All such payments shall be deposited in a separate escrow account mentioned above and opened in the name of the Developer Company. For clarity, the schedule of the payment under the present Agreement shall also be shared with the said escrow Agent/Bank." 53. From the above, we note that the joint development agreement dated 06.03.2016 was signed by Mr. Piyush Tiwari, who has signed as director of Subhkamna Buildtech Pvt. Ltd., and by Smt. Shalini Singh, Director of Anindya infrastructure Pvt. Ltd., the Appellant herein. 54. It is noted that M/s Subhkamna Buildtech Pvt. Ltd., the Respondent No. 1 herein is stated to be "owner or the first party", whereas Anindya infrastructure Pvt. Ltd., the Appellant herein is stated to be "developer or the second party" and Smt. Shalini Singh w/o Mr. Ranjan Kumar Singh alongwith Mr. Ranjan Kumar Singh are stated to be "conforming parties/ guarantors". 55. The Corporate Debtor was allotted a plot of land bearing GH-02A, Sector - 1, Greater Noida, District Gau....
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....ebtor as defined under Section 5(7) of the Code, which reads as under :- "5 (7)- "financial creditor" means any person to whom a financial debt is owed and includes a person to whom such debt has been legally assigned or transferred to;" ( Emphasis Supplied ) 61. While examining the attached joint development agreement dated 06.03.2018, we observe that as per Clause 5, the Appellant is said to have paid Rs. 2.5 Crores to sister concern of the Corporate Debtor. Interestingly, Clause 11 further states that Rs. 2.5 Crores paid by the developer i.e., Appellant herein will be repaid to the Appellant. We fail to understand the logic of such circuitous transaction, which denotes the purpose of such alleged joint development agreement dated 06.03.2018 was something else. This does not augur well for the cause of the Appellant. 62. We have noted that the Appellant has failed to furnish any details of transactions evidencing the remittance of funds to the Corporate Debtor and no proof of disbursement or payment has been annexed with the claim form to substantiate the alleged debt. There cannot be any dispute that the sister concern of the Corporate Debtor is a distinc....
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.... or tenancy agreement signed between the parties for the allotment of space, if any, however, the Appellant failed to provide any such lease deed or tenancy agreement, which also does not support the cause of the Appellant. 66. We also take into consideration the fact that, after verifying the documents provided by the Appellant, the Respondent No.1 informed the Appellant via email dated April 11, 2019, that their claim could not be verified as the documents produced by the Appellant were executed by Mr. Piyush Tewari, acting as a Director of the Corporate Debtor, where as Mr. Piyush Tiwari had already been disqualified as a Director of the Corporate Debtor under Section 164(2)(a) of the Companies Act, 2013, as of November 1, 2015. This disqualification rendered the Agreements supporting the Appellant's claim non-enforceable as on the date of their execution, as Mr. Piyush Tewari lacked the authority to act as an Authorized Signatory of the Corporate Debtor and execute such documents. Consequently, the agreements lack legal validity. 67. At this stage, we will take into consideration Section 164(2)(a) and Section 167 (1) of the Companies Act, 2013 which reads as under :- ....
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....tion 164(2)(a) read with Section 167(1) of the Companies Act, 2013, Mr. Piyush Tiwari was disqualified from acting as a director with effect from November 1, 2016, due to the non-filing of Financial Statements and Annual Returns for three consecutive years. This formal declaration by the MCA further reinforces the Respondent No.1's contention that agreements executed by Mr. Tiwari during his period of disqualification are invalid. 69. We observe that Respondent No. 1 had communicated his doubts regarding the enforceability of Joint Development Agreement dated 06.03.2018. It has been brought to our notice that the Appellant acknowledged these concerns of the Respondent No. 1 through an email dated 28.08.2019, but failed to provide further clarifications or supporting documents for a long time and consequently, the claims remained unverified and non-compliant with Regulation 12 of the CIRP Regulations, 2016. We observe that the Adjudicating Authority in the Impugned Order dated 13.03.2021 concluded that requisite documents were not provided to substantiate the Appellant's claim, thereby justifying dismissal of the Claim application filed by the Appellant. The relevant para of ....
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....Appellant that their claim would be reconsidered upon submission of relevant documents substantiating the claim, however, despite this communication, the Appellant failed to act promptly and sat on their claim for months without furnishing the requisite documents. This inaction prevented the Respondent No.1 from verifying the Appellant's claim, thereby justifying the observations and conclusions made by the Adjudicating Authority in dismissing the claim application. 73. Thus, we note that the Appellant failed to provide relevant information and documents to establish its claims and we also reiterate that there has been no evidence of any payment made by the Appellant to the Corporate Debtor directly. The alleged claimed payments made by the sister concern of the Appellant/ Appellant to the sister concern of the Corporate Debtor, does not translate into debts. We also noted from the submissions of the Respondent No.1 that even the books of sister concern of the Corporate Debtor do not corroborate the claims of the Appellant. The fact that alleged documents furnished by the Appellant i.e. Joint Development Agreement dated 06.03.2018 to the Respondent No.1 were non est as counter p....
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....ty of the Third Part are the existing Directors of the Developer and have been included in the present agreement as Conforming Parties/Guarantors and as guarantors of the Developer under the present agreement. The Conforming Parties/Guarantors have executed a separate personal guarantee in favour of the Owner thereby guaranteeing the performance by the Developer under the present agreement. WHEREAS the Owner has been allotted a plot of land bearing No. GH-02A. Sector-1, Greater Noida, District Gautambudhnagar, U.P. admeasuring about 33538 Sq. Mtr. and the Owner is developing a real estate project under the name and style of Shubhkamna City (Group Housing) at the said plot (hereinafter referred to as the "Project"). AND WHEREAS the Owner is desirous of engaging a Developer with adequate experience in the field to construct, develop and market one tower of the project consisting of the studio apartments, commercial area and the basement parkings (hereinafter referred to as the "Tower") which shall be duly constructed and developed by the Developer in fully finished condition. The . Developer shall get the marketing rights of 176 studio apartments, which shall be built in the sa....