M/s. Dalmia Family Office Trust vs M/s. Ansal Properties and Infrastructure Limited

PER SHRI L. N. GUPTA, MEMBER (T)

The present Application is filed under the Section 7 of the Insolvency and Bankruptcy Code, 2016 (for brevity ‘IBC, 2016’) read with Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 by M/s. Dalmia Group Holdings through Authorized Representative of the Proprietor, Mr. Inder Preet Singh (for brevity ‘Applicant/Financial Creditor’), with a prayer to initiate the Corporate Insolvency process against M/s. Ansal Properties and Infrastructure Limited (for brevity ‘Corporate Debtor’).

The Corporate Debtor namely, M/s. Ansal Properties and Infrastructure Limited is a Company incorporated on 30.06.1967, under the provisions of the erstwhile Companies Act, 1956 with CIN L45101DL1967PLC004759, having its registered office at 115, Ansal Bhawan, 16, Kasturba Gandhi Marg, New Dellii-110001, which is within the jurisdiction of this Tribunal.

The Authorized Share Capital of the Corporate Debtor Company is Rs.1,50,00,00,000/- and Paid-up Share Capital of the Company is Rs.78,70,24,380/- as per the master data annexed with the Application.

That the detailed particulars of the Financial Debt including the total amount of debt in default and the date of default as mentioned in the Part IV of the application are reproduced below for the convenience :

That from perusal of the Part IV of the Application, it is observed that the Applicant has claimed the dues of Rs. 04,88,20,618/- as on 30.09.2021, out of which Rs 01,40,00,000/- has been claimed as the Principal Amount. The Applicant has mentioned the 28.10.2015 as the date of default in its application. That in order to cross the hurdle of limitation, the Applicant has filed Annual Reports of the Corporate Debtor for the Financial Years 2017-18 to 2019-20 along with its application.

That vide order dated 24.05.2022, this Bench has observed that the present Application has been preferred in the name of the Proprietorship firm, accordingly, the defect being curable, the Applicant was directed to rectify the memo of parties within seven days. That in compliance of the direction, the Applicant filed the amended memo of parties on 26.05.2022 rectifying the cause title of the case. The same is taken on record.

That during the course of hearing on 24.04.2022, the arguments were heard on merits and the order was reserved. Subsequent to reserving of the order, one IA No.2283/2022 was filed by the Corporate Debtor stating that an amount of Rs. 04,90,00,000/- has been transferred in the account of the Financial Creditor on 16.05.2022.

That vide order dated 18.05.2022, this Adjudicating Authority had directed the Financial Creditor to confirm whether any amount has been received by it. Accordingly, the matter was posted for 26.05.2022.

The Financial Creditor, in response to the same, has filed its reply in IA-2283 of 2022 and has confirmed that it has received an amount of Rs. 04,90,00,000/- in its accounts. However, it has stated that it is not the full amount, which was required to be paid by the Corporate Debtor.

That the scanned copy of the relevant averments made by the Financial Creditor are reproduced below :

That the Financial Creditor has also annexed the Calculation sheet stating that still there is a balance amount of Rs. 65,83,033/-outstanding towards the principal dues. The scanned copy of the Calculation Sheet filed by the Financial Creditor is reproduced below :

That during the course of hearing on 26.05.2022 in IA-2283 of 2022, Ld. Sr. Counsel appearing for the Financial Creditor further submitted that there is still the principal amount due and payable by the Corporate Debtor and hence, it insisted on initiation of the CIRP.

It was further stated by the Ld. Sr. Counsel appearing for the Financial Creditor that there was no settlement between the parties and the aforesaid amount has been deposited by the Corporate Debtor, without any prior consent of the Financial Creditor.

Per Contra, Ld. Counsel for the Corporate Debtor stated that the entire amount claimed in the Part IV of the Application has been discharged including the principal amount. He further argued that the said amount has not been returned by the Applicant at any stage. He further placed reliance on the Judgement of this Bench passed in the matter of Saraf Chits Private Limited Vs. KAD Housing Private Limited in (IB)-255(ND)/2021, dated 23.05.2022 stating that in the light of discharge of the entire Principal amount claimed in part IV of the Application, the CIR process cannot be initiated against the corporate debtor.

That after hearing submissions of both the parties, this Bench observes that the Corporate Debtor had transferred an amount of Rs.04,90,00,000/- in the Financial Creditor’s Account and the said fact is duly admitted by the Financial Creditor. Although it is contended by the Financial Creditor that the Corporate Debtor had deposited the money without its prior permission. However, since the amount has not been returned by the Financial Creditor, we shall consider this issue while adjudicating the debt and default.

That from the pleadings, it is observed that pursuant to the deposit of Rs. 04,90,00,000/- by the Corporate Debtor in the accounts of Financial Creditor, both the parties are adjusting the said amount in their own manner. That the Financial Creditor has adjusted the amount of Rs.04,90,00,000/- in the interest portion calculated till 24.05.2022 and has reached to a conclusion that Rs.65,83,033/- has been outstanding as the Principal Amount. Per Contra, the Corporate Debtor has stated that the payment of Rs 04,90,00,000/- has resulted in complete discharge of the full Principal amount of Rs.01,40,00,000/- as well as the interest as claimed by the applicant in the Part IV of its Application.

Here, for the sake of convenience, we again refer to the relevant extracts of Part IV of the Application depicting the amount claimed, the scanned copy of which is reproduced below :

From the perusal of the aforesaid relevant extracts of Part IV of the Application, it is observed that the Financial Creditor had claimed the total dues Rs.04,88,20,618/- as on 30.09.2021, out of which Rs.01,40,00,000/- is the principal amount and the rest is interest portion calculated as on 30.09.2021.

From the above, it can be inferred that the Corporate Debt has computed its debt as on 30.09.2021, which became due and payable on 28.10.2015, as per the date of default mentioned in Part IV of the Application.

That the aforesaid facts depict that the Applicant has also claimed interest portion falling within the Section 10A period, i.e the suspended period of IBC commencing from 25.03.2020 to 24.03.2021, for which no CIRP can ever be initiated.

That before deposit of Rs.04,90,00,000/- by the Corporate Debtor, the said fact was not relevant, since the Principal Outstanding claimed in the Part IV of the Application was above Rs 1 Crore, which was due and payable much prior to the Suspension period of IBC as stipulated under Section 10A of IBC, 2016.

It is observed that the Applicant had claimed the unpaid financial debt of Rs.04,88,20,618/- as the total outstanding amount in Part IV of the Application. Even if we ignore, for a moment, that the Financial Creditor had claimed interest for the 10A period, then also it is amply clear that the Financial Creditor had received an amount of Rs.04,90,00,000/-, which is more than the total amount (Principal + Interest) of Rs.04,88,20,618/- claimed in Part IV of the Application. Therefore, in our considered view, the Applicant cannot claim any amount beyond what is stated/claimed in the Part IV of its Application, since it is a trite law that the IBC proceedings are not recovery proceedings.

Further, it is observed that the Financial Creditor has erroneously calculated the unpaid Principal outstanding amount of Rs.65,83,033/-after adjusting the amount payable during the 10A period and the interest for the period beyond filing of the present Application under Section 7 of IBC, 2016. In our considered view, such a calculation cannot be accepted for arriving at the unpaid debt for triggering the CIR process of the Corporate Debtor.

In view of the above discussion, the Application is Dismissed and the IA-2283 of 2022 is disposed of.

However, we take note of the conduct of the Corporate Debtor that not only it had made all possible efforts to delay the matter, but also it had deposited the amount behind the back of the Financial Creditor and without its consent and that too, when the order was reserved. Therefore, we are inclined to impose a cost of Rs.1,00,000/- (One Lakh) only on the Corporate Debtor, which shall be deposited in the Prime Minister’s Relief Fund within 15 days, receipt of which shall be filed before this Bench before 20.06.2022.