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Judgment
O R D E R
Per: Justice Rakesh Kumar Jain:
05.09.2023: This Appeal is directed against the Order dated 12th June, 2023 passed by the National Company Law Tribunal, Mumbai Bench, Court-V by which CP(IB) No. 1366/IB/MB/2020, filed by Respondent No.1 (Operational Creditor) under Section 9 of Insolvency and Bankruptcy Code, 2016 (Code in short) read with Rule 4 of Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (Rules in short) against Epitome Residency Private Limited (Corporate Debtor) has been admitted for the Resolution of Rs. 1,34,46,109/-, moratorium was declared and Mr. Ashok Venkatrao Barbole was appointed as IRP.
In brief, the Respondent No. 1 (Operational Creditor) is a company engaged in the business of real estate management and is a solution provider. The Corporate Debtor entered into an agreement on 30.05.2017 with the Operational Creditor for availing its services with respect to the property of the Corporate Debtor called ‘Imperial Heights’. This Agreement was amended on 10.04.2018. The Operational Creditor received two payments from the Corporate Debtor of Rs. 14,98,225/- in the month of June but from July, 2018 onwards the Corporate Debtor began to commit default in making payments. Consequently, the Operational Creditor served a demand notice dated 25.11.2019 upon the Corporate Debtor for the resolution of Rs. 1,49,44,337/-. It is alleged by the Operational Creditor that a settlement agreement dated 29.11.2019 was executed between it and the Corporate Debtor to settle the admitted amount of Rs. 1,49,44,334/-. As a gesture of goodwill, the Operational Creditor agreed to receive an amount of Rs. 1,46,35,701. It is further alleged that while the payments of first two post-dated cheques were honoured, the rest of the cheques were dishonoured because of insufficient funds. The Operational Creditor has thus demanded a sum of Rs. 1,34,46,109/-.
On the other hand, the case set up by the Appellant- Corporate Debtor is that six post-dated cheques were given pursuant to the Settlement Agreement dated 29.11.2019. Cheques of Rs. 14,98,225/- were encashed but the Operational Creditor did not proceed against the Corporate Debtor in respect of cheques dated 26.03.2020 of Rs. 34,32,669/-, 28.04.2020 of Rs. 34,42,263/-. It is thus submitted that the claim raised by the Operational Creditor under the dishonoured cheques aggregates Rs. 62,55,571/- which is below the threshold.
The Adjudicating Authority considered the respective contentions and held that as per settlement agreement (exhibit –N) the Corporate Debtor clearly acknowledged to pay Rs. 1,46,35,701/- in order to discharge its liability and issued as many as six post-dated cheques, however, only cheques of Rs. 14,98,225/- were honoured and rest were dishonoured and after deducting the amount of the honoured cheques, the liability is found to be more than Rs. 1.30 Crores therefore it was held that the Application has rightly been filed crossing the threshold.
Counsel for the Appellant has half-heartedly repeated the stand taken before the Tribunal with regard to threshold but could not cause a dent in the finding recorded by the Learned Tribunal in paragraph 23 of the Impugned Order on the basis of which Application filed under Section 9 of the Code was admitted.
Thus, in view thereof, we do not find any merit in the present Appeal for the purpose of interference, therefore, the Appeal is hereby dismissed. No order as to cost.