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Judgment
O R D E R
30.08.2022: Heard Shri Abhishek Anand, Learned counsel for the Appellant. This Appeal has been filed against the order passed by the Adjudicating Authority (National Company Law Tribunal), New Delhi Bench, Court-III dated 09.06.2022 by which Section 7 Application filed by the Appellant has been rejected. Appellant filed Section 7 Application claiming Financial Debt, reliance was placed on an MOU entered between the Appellant and M/s ABW Infrastructure Ltd. (Developer) for developing a land. The Adjudicating Authority after hearing the parties rejected the Section 7 Application.
Learned counsel for the Appellant submits that in view of the MOU entered between the Appellant and M/s ABW Infrastructure Ltd., the Corporate Debtor is obliged to make payment to the Appellant. Learned counsel has referred to Clause (A) of the MOU. Shri Abhishek Anand further submits that the District Magistrate has already passed an order attaching the assets by order dated 03.04.2018 under which Appellant is entitled to recover the amount from the Corporate Debtor, who was Respondent No. 8 in the Complaint.
We have considered submissions of learned counsel for the Appellant and perused the record.
The Adjudicating Authority while rejecting the Section 7 Application made following observations:-
“We have heard the submissions made by the Counsels appearing for both sides and perused the records. Admittedly, the Memorandum of Undertaking was executed between M/s. ABW Infrastructure Limited and the present Applicant and the respondent was in no way connected to the MOU. There is no evidence on record to show that the money in question was in fact paid to present respondent out of the said agreement.”
The MOU which is claimed to be entered between the Appellant and M/s ABW Infrastructure Ltd., the Corporate Debtor was not party to the MOU. Clause (A) on which much reliance is placed is as follows:-
“A. The Developer is proposing to develop/construct IT Park to be known as “Gateway Tower” on the land admeasuring 8.5 acres vide Khasra No. 1717/1634/1 (4-17), 1668/1(1-12), 1634/1(1-14) 1634/2min (1-6), 1669 (0-15), 1672 to 1678 (3-8) at village Anangpur District Faridabad, Haryana in terms of Licence No. 281 of 2007 (renewed vide Memo No. 5DP-II/LC-1179/2010/6021 dated 10.05.2010) granted by DTCP, Haryana under the Haryana Development & Regulation of Urban Areas Act, 1975 & the rules made thereunder to M/s Dove Infrastructure Private Limited, J-10/1, DLF City, Phase-II, M. G. Road, Guraon – 122002 for setting up I.T. Park at village Sarai Anangpur, District Faridabad.”
The mere fact that in Clause (A), as extracted above, M/s Dove Infrastructure Private Limited is to set up I.T. Park does not make the disbursement made by Appellant to M/s ABW Infrastructure Ltd. as a Financial Debt against the Corporate Debtor. The disbursement against time value of money is against M/s ABW Infrastructure Ltd. and not against the Corporate Debtor.
Now coming to the order of District Magistrate, the said order attached the property under Section 4 of Haryana Protection of Interest of Depositors in the Financial Establishment Act, 2013. Order of attachment and observations as made in the order for recovery does not make the claim of Appellant as Financial Debt.
We, thus, are of the view that Section 7 Application filed by the Appellant has been rightly rejected by the Adjudicating Authority. The impugned order does not warrant any interference. The Appeal is dismissed.