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Judgment
CA-2597(PB)/2019
This is an application filed by one of the financial creditor namely Alchemist Asset Reconstruction Company seeking withdrawal of the statement made in the order dated 26.09.2019 mentioning that "Mr. Alok Kumar, Learned Counsel for the Alchemist states that arrears of interim finance payable to RP shall be paid within a week.". The RP having filed a resolution plan approved by CoC making a provision for CIRP cost, for no occasion arose subsequently for providing interim finance, funding towards interim finance being already met with by three financial creditors, we are of the view that there is no need to infuse interim finance any further. Accordingly, this application is hereby disposed of with a direction to the RP to make adjustments as per law in the light of interim finance already provided by other financial creditors.
CA-265(PB)/2019 & CA-623(PB)/2019
Neither counsel nor the applicants are present. In the absence of applicants, these applications are dismissed for default.
CA-1932(PB)/2019
This is an application filed by one Ms. Suchita Singh stating that she booked a flat unit No. G-704, in the project named "the Florence Platinum, 80 feet Road, opposite Kamayani hospital, Sikandara, Agra" developed by Corporate Debtor for an agreed consideration of Rs. 35,14,476/-, out of which, she has already made a payment of Rs. 35,00,000/- to the corporate debtor. Out of this payment, Rs. 4,50,000/- was paid through cheques, remaining 30,50,000/- was paid through cash, acknowledging the same, the corporate debtor on 20.05.2016 issued acknowledgement of receipt of full and final amount and the erstwhile management offered possession to the applicant since the full payment was made to the corporate debtor. Accordingly, the possession of the flat was also handed over to the applicant. In between for this company has gone into CIRP, this applicant filed this application for a direction against the Resolution Professional to recognise this applicant as the owner of the unit- flat G-704 and also to execute sale deed in favour of the applicant.
As against this relief, the Resolution Professional submits that to the extent of the payment made towards cheques, it was admitted as to remaining amount shown as received through cash, the RP could not admit this claim because neither it was shown in records of the company reflecting that the amount in cash was paid by this applicant to the corporate debtor nor any material proof has been placed reflecting that this money was paid to the company except showing some hand written receipts as money received by the corporate debtor through a person, whose name somehow this Bench is unable to make out from the signature on the receipts filed by this applicant.
On verification of these receipts, we have noticed that hand written receipts were issued on white papers, neither on the letter head of the company nor with the stamp of the company, whereby it has become difficult to decide as to whether this payment is made by this applicant to the corporate debtor or not.
In view thereof, we hereby dismiss this application with liberty to the applicant to proceed in accordance with law. As to the period of limitation is concerned, the period that has undergone under CIRP is hereby excluded as contemplated under Section 14 of the Limitation Act.
With regard to the possession of the flat as both parties agreed that the possession is lying with the applicant, in light of the material placed before this Bench, we hereby make it clear that either the Resolution Professional or the Resolution Applicant will not alter the status quo position until further orders by the Competent Authority.
Accordingly, this application is hereby dismissed with liberty aforementioned.
CA-2094(PB)/2019
This is an application filed by one Ms. Malini Singh stating that she booked two flats, unit No. I-1/703 & I-2/704, in the project named "the Florence Platinum, 80 feet Road, opposite Kamayani hospital, Sikandara, Agra" developed by Corporate Debtor for an agreed consideration of Rs. 58,63,168/-. The said entire amount was stated to be paid through cheques as well as by cash and the receipts in this regard were tendered on blank papers by the Corporate Debtor. Thereafter the corporate debtor issued acknowledgement of receiving full and final amount and offered possession to the applicant. Since the full payment was made to the corporate debtor, the possession of the flat was handed over to the applicant. In between this company has gone into CIRP. Consequently the applicant filed the present application for a direction against the Resolution Professional to recognise this applicant as the owner of aforesaid two units and also to execute the sale deed in favour of the applicant.
As against the relief, the Resolution Professional submits that to the extent of the payment made towards cheques it was admitted, however as to remaining amount shown as received through cash the RP could not admit the claim because neither it was shown in records of the company reflecting that the amount claimed to be paid in cash was actually received by the corporate debtor nor any material proof has been placed reflecting that the money was indeed paid in cash to the company. Only some hand written receipts have been replied upon, as money received by the corporate debtor through person whose name somehow this Bench is unable to make out from the signature on the receipts filed by the applicant. On verification of these receipts, prima facia it cannot be construed as receipts issued by the company, because these hand written receipts are not on the letter head of the company nor even stamp of the company has been affixed on those receipts, whereby it is difficult to decide as to whether this payment is made by this applicant to the corporate debtor or not. In view thereof we hereby dismiss the application with liberty to the applicant to proceed in accordance with law. As to the period of limitation is concerned the period that has undergone under CIRP is hereby excluded as contemplated under Section 14 of the Limitation Act.
With regard to the possession of the said two flats are concerned as both of these parties have agreed that the possession are lying with the applicant, the Resolution Professional and the Resolution Applicant agreed that the possession of the applicant shall not be disturbed except in accordance with law.
Accordingly, this application is dismissed with liberty aforementioned.
CA-1933(PB)/2019 & CA-2095(PB)/2019
Mr. Yash Pal Singh has filed application No. (CA-1933(PB)/2019) and also another application CA-2095(PB)/2019 seeking common direction against the Resolution Professional to recognise applicants as respective flat buyers for which applicants have already made full and final payment towards the consideration payable to the corporate debtor.
The payment details with respect to the applicant as mentioned in the aforesaid respective applications are as below:-
"In CA-2095(PB)/2019:-
Sl. No.
Date of payment
Amount
Mode of payment
Security/Acknowledgement
Security Chq. No.
1
25.09.2012
20,00,000
Cash
Cheque
187145
2
20.10.2012
3,25,000
Cash
Cheque
188115
3
08.02.2013
7,50,000
Cash
Cheque
4
24.08.2013
1,00,000
Cash
Receipt issued
5
31.01.2014
10,00,000
Cash
Cheque
17779
6
03.04.2014
1,60,000
Cash
Cheque
19873
7
02.05.2014
1,50,000
Cash
Cheque
19874
8
24.07.2014
50,000
Cash
Cheque
19926
9
26.07.2014
1,00,000
Cash
Cheque
19927
10
06.09.2014
5,50,000
Cash
Cheque
19949
11
09.07.2016
30,000
Cash
Receipt issued
12
07.09.2016
10,000
Recognised
by IRP
Total
52,25,000
"With respect to CA-1933(PB)/2019 the applicant has made payment of Rs. 32,50,000/- in cash."
In all these applications we have come across that token amount of 1 Lac or 2 Lacs has been paid by these applicants. As to the remaining amount these applicants submit that all most all the amount was paid through cash but no material has been placed before this Bench in support of such payment made to the Corporate Debtor. Common plea is that whenever cash payment is made to the Promoter/Director of the Corporate Debtor, the practice is that the Promoter/Director used to issue cheques to secure the amount paid in cash to the Promoter/Director of the Corporate Debtor.
The predicament of the Resolution Professional is unless claim is supported by material proof recognized under law, the Resolution Professional cannot admit the claims made by the applicant. Since the Corporate Debtor being a company in development, whenever money is received from the flat buyers it has to be shown in the records of the Corporate Debtor. In these cases it has not happened. RP could not collate and admit the claim in the absence of corresponding records and relevant account of the corporate debtor. The only plea of these applicants is that along with cash receipts the Promoter/Director also issued signed cheques as a security towards the cash payment made by the applicants. But interesting part is that these applicants have not enchased those cheques when the Corporate Debtor failed to deliver possession to these applicants.
However, in the backdrop of these facts it is difficult for us to adjudicate as to whether these claimants have actually paid the amount to the Corporate Debtor, in the absence of supporting books & accounts of the corporate debtor and whether they are entitled to the title deed as well as possession of the property as they sought in their applications.
In view thereof these applications are hereby dismissed with liberty to these applicants to proceed in accordance with law. As to the period of limitation is concerned, the time that has undergone under CIRP is hereby excluded as contemplated under Section 14 of the Limitation Act.
Accordingly, these applications are dismissed in terms aforementioned.
CA-245(PB)/2020
This is an application filed stating that the applicant filed a claim of Rs. 1,34,67,392/- before RP, whereas RP admitted the claim for `1,04,28,157 only by giving a reason that, as to the remaining balance claim since a flat for an amount of Rs. 18,00,000/- has been allotted in the name of Mr. Utkarsh Mittal as per the request of this claimant and as to the remaining balance of Rs. 11,00,000/-, for the applicant having not given any bills supporting the claim of Rs. 11,00,000/-, Resolution Professional has only admitted the claim of Rs. 1,04,28,157/-. It has also been further stated that if the bills are produced for Rs. 11,00,000/-, the Resolution Professional would admit the claim for `11,00,000.
In view thereof, we have not found any merit in this application, therefore this application is hereby dismissed with liberty to this applicant to place bills with regard to the claim of amount `11,00,000 rejected by the Resolution Professional.
CA-882(PB)/2020
This is an application filed by Jeevan Construction Co. making a claim of Rs. 14,48,012/- (Rupees Fourteen Lakh Fourty Eight Thousand and Twelve Only) against the Corporate Debtor for the same being rejected by the Resolution Professional on the ground that claim is not supported by any bills or invoices except the ledger account maintained by the applicant herein. On looking at the reason given for rejection of the claim, we are of the view that the Resolution Professional has rightly rejected application, accordingly, we do not find any merit. Hence this application is dismissed as misconceived.
CA-260(PB)/2020
This is an application filed by RP for pronouncement of the order in CA-889(PB)/2019 for approval of Resolution Plan.
In this regard it is pertinent to note that huge claim of M/s. Dilip Buildcom Limited is pending for adjudication in CA-967(PB)/2019 and the next date of hearing in the matter has been fixed on 19.02.2020.
In the case of Company Appeal (AT) (Ins) No. 295 of 2018 Hon'ble NCLAT has held that 'if CA will have a material impact on resolution plan it will be in the fitness of things that it will be considered first before resolution plan is taken up for approval.'
Needless to say, that all claims must be submitted to and decided by the resolution professional so that a prospective resolution applicant knows exactly what has to be paid in order that it may then take over and run the business of the Corporate Debtor.
Therefore, in the present case the claim in CA-967(PB)/2019 filed by M/s. Dilip Buildcom Limited is to be decided first before approval of the Resolution Plan.
Accordingly, CA-889(PB)/2019 for approval of resolution plan can only be considered after disposal of the claim in CA-967(PB)/2019 filed by M/s. Dilip Buildcom Limited.
CA-260(PB)/2020 is disposed of with the aforesaid clarification.
CA-60(PB)/2019 & CA-1268(PB)/2019
Written submissions be filed in two pages.
List for consideration on 19.02.2020.
CA-889(PB)/2019
List for consideration along with CA-967(PB)/2019 on 19.02.2020.
CA-967(PB)/2019
M/s. Dilip Buildcom Limited has claimed that it had undertaken contractual work at the project site of the Corporate Debtor in Agra in accordance with the terms and conditions of a construction agreement dated 03.07.2017. The applicant company has preferred the present application for admission of its claim against the Corporate Debtor and for direction on the Resolution Professional to return the assets/goods/materials owned and purchased by the applicant and lying at the project site of the Corporate Debtor.
The parties are directed to file written submissions in two pages in the matter.
The next date of hearing is fixed on 19.02.2020.