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Judgment
O R D E R
Heard Learned Sr. Counsel for the Appellant-Mr. Vivek Kohli. Although Respondent has been served but no one appeared on behalf of Respondent nor any Reply has been filed.
This Appeal has been filed against the Order dated 28th May, 2019 passed by the Adjudicating Authority (National Company Law Tribunal, New Delhi, Bench-III) by which Order Application being IB-237/(ND)/2019 filed by the Appellant under Section 7 of Insolvency and Bankruptcy Code, 2016 (IBC in short) have been rejected.
The Appellant’s case is that Appellant entered into an ‘Investment Agreement’ with the Respondent/Corporate Debtor on 01st April, 2014. As per the Investment Agreement, the amount of Rs. 75 Lacs were received by the Corporate Debtor from the Appellant which is clearly mentioned in the Investment Agreement itself. Learned Counsel for the Appellant further submits that Developer has approved purchase of 2000 sq. ft. super area in the Ground Floor which was allotted to the Investor. There has been certain correspondences including the Letter of the Corporate Debtor for buying back area of 1000 Sq. Ft. In this context, reference to the Letter dated 30th June, 2016 has been made which was written by the Corporate Debtor to the Appellant. The case of the Appellant is that 25 Lacs were paid through RTGS dated 18.09.2015 and no remaining payments have been made thereafter. In this regard, First Notice was issued on 12th July, 2018 where the Appellant called upon the Corporate Debtor to execute the Sale-Deed of the commercial area and to handover possession and transfer all the security deposits and lease rental and the Reply of this Notice was issued on 16th August, 2018 by the Corporate Debtor where it was stated by the Corporate Debtor that Appellant has invested the amount in the project and it has been mentioned that amounts of Rs. 25 Lacs have been paid and rest amount will be paid when the project shall start paying back. Further Notice was issued on 2nd November, 2018 by the Appellant for recovery of 94,10,000/- with interest which was not replied. Thereafter, an Application was filed by the Appellant under Section 7 of the IBC before the Adjudicating Authority which came to be dismissed by the Impugned Order.
The Adjudicating Authority while rejecting the Application of the Appellant in paragraph 3 of the Impugned Order made following observations:
“We have gone through the documents filed by both the parties and heard their detailed arguments. Both parties have claimed completely different stories and have relied on completely separate set of documents to prove their stories. As contended by the Respondent, the relief sought by the Applicant in the two legal notices dated 12.07.2018 and 03.11.2018 are contrary to each other and there is no clarity of purpose. It is obvious from this divergence that the parties, especially the Applicant, have not approached the Tribunal with clean hands, which requires that the present application be dismissed outright. Further, the agreement dated 01.04.2014 entered into by both the parties is very vague in nature and it does not indicate whether the money paid is towards the full cost value of the commercial space allotted or only for investment. The title says it is an investment agreement. Details such as date of completion of the project, interest component for the investment made by the Applicant, documentation formalities like registration of the property after completion of the project etc are totally missing. In the absence of such details it is very difficult to come to the conclusion whether there is debt and the date on which the debt becomes due.”
Learned Counsel for the Appellant submits that from the Investment Agreement dated 01st April, 2014 and subsequent correspondences between the parties, it is clear that the Corporate Debtor admitted the debt and has also admitted that the Appellant has invested the above said amount in the project and hence Adjudicating Authority committed error in observing that there is no debt and no date on which debt became due.
It is submitted that amount shall be payable when the Project shall start paying back.
We have considered the submissions and perused the record. The Investment Agreement dated 01st April.2014 is on record which clearly mentions that Appellant has invested and paid 75 Lacs which was received by the Corporate Debtor. The Payment of Rs. 75 Lacs is evidenced by the Agreement itself. It is submitted that Appellant was allotted 2000 sq. ft. out of which 1000 sq. ft. was sought to be bought back by the Corporate Debtor with regard to which correspondences were entered.
The notice which was issued by the Appellant on 12th July, 2018 was replied by the Respondent/Corporate Debtor where the Corporate Debtor clearly admitted the debt and mentioned that Appellant shall be paid. The Notice dated 12th July, 2018 have been brought on record at page 102 and Reply of which is at page 106 of the Appeal Paper Book. Paragraph 3 and 10 of the Reply may specifically be noted which provides as follows:
“3.That your client and her husband Late Sh. Subhash Lakhotia, being impressed with the project showed interest in the project and it was offered by them that an amount would be invested in it. The amount to be invested was with the intention to earn interest from this project in proportion of amount invested time to time towards the cost of the project. To secure the investment, an investment agreement was entered. As per the Investment Agreement, the company was to offer a space in the project as a security. There was clear understanding that your client would have no lien over the property and it would remain a security.
10.That your client sent the legal notice relying upon the Agreement executed on 01.04.2014. In the notice your client with dishonest intention concealed the facts that she has already received the interest and Rs. 25,00,000/- through cheque on 18th September, 2015 and same was duly encashed. It was agreed that the remaining amount will be paid by our client only when the project will start paying back.”
We are of the view that the Investment Agreement as well as the Reply submitted by the Corporate Debtor itself indicate that the amount was received by the Corporate Debtor and Corporate Debtor itself say that it has paid Rs. 25 Lacs and agreed to make payment of the remaining amount when the project shall start paying back, there is clear admission of the debt on behalf of Corporate Debtor and Adjudicating Authority has committed error in observing that there is no debt proved by the Appellant. Learned Counsel for the Appellant has also referred to several materials to indicate that project is complete and hence payment has become due.
In the above conclusion, we are of the view that Adjudicating Authority has committed error in rejecting the Application. The Impugned Order dated 28th May, 2019 is set aside. Let the Adjudicating Authority pass an order for admission of the Application within one month from the date when the Order is produced before the Adjudicating Authority. It shall be open for the parties to enter into a Settlement during the said period if they so desire. This Appeal is allowed, accordingly.