2023 (10) TMI 234 - AT - Insolvency and Bankruptcy

Reduction of claim filed by appellant before the Adjudicating Authority by Resolution Professional (RP) - it is also claimed that when list of creditors were published in the same list the RP transferred the claim from the category of admitted claim to the claim under review - HELD THAT - Since learned Adjudicating Authority in its impugned order has noticed that MOUs which were the basis for claim appears as forged documents, there is no reason to place reliance on such MOUs. Moreover, on record there is nothing to show as to whether for rendering services of liaisoning any agreement was entered in between the appellant or CD. It is unbelievable that the appellant is claiming for more than Rs.4 crores as rendering services of liaisoning to the CD still on record there is no chit of paper as to on what terms and conditions the appellant was rendering liaison services to the CD or its unit. Moreover, once the Adjudicating Authority has noticed that MOUs which were brought on record before the NCLT by the appellant were forged one, in that event the whole claim of the appellant was required to be rejected and has rightly been rejected. Considering the order impugned passed by the learned Adjudicating Authority wherein the MOUs placed on record by the appellant before the Adjudicating Authority were treated as if they were forged one, in normal course it was required on the part of the Adjudicating Authority to direct for conducting enquiry/investigation while exercising powers under Section 340 of CrPC - It is opined that if any party brings on record any forged documents for getting unlawful benefit on the judicial side it would be necessary for the concerned Court to exercise its jurisdiction for examining the entire issue by entrusting same to investigating agency. In any event such act of either party may not get any lenient approach by the concerned Court. While approving the impugned order passed by the learned Adjudicating Authority,it is deemed appropriate to remit back the matter to the Adjudicating Authority with request to exercise its jurisdiction under Section 340 of Cr PC in respect of alleged MOUs, regarding which observation has been given by the Adjudicating Authority as if those documents appeared to be fraudulent one. Appeal dismissed.

Summary

Issues Involved:
1. Reduction of the Appellant's claim from Rs. 5.20 Crores to Rs. 30 Lakhs.
2. Validity of the Memorandums of Understanding (MoUs) and Builder Buyer Agreements.
3. Alleged provision of consultancy and liaison services by the Appellant.
4. Alleged fraudulent nature of the MoUs and related documents.

Summary of Judgment:

Issue 1: Reduction of Claim
The Appellant's claim of Rs. 5.20 Crores was initially admitted by the Interim Resolution Professional (IRP) but later reduced to Rs. 30 Lakhs by the Resolution Professional (RP) based on the available records of the Corporate Debtor (CD). The Adjudicating Authority upheld this reduction, noting that the payment made by the Appellant to the CD was only Rs. 30 Lakhs.

Issue 2: Validity of MoUs and Agreements
The Appellant claimed that the CD had entered into various MoUs and Builder Buyer Agreements to allot flats as collateral against the outstanding amount. However, the Adjudicating Authority found these documents to be fraudulent, lacking legal backing, and not supported by admissible evidence. The MoUs were signed only by one director of the CD and the Appellant, with no witnesses, raising doubts about their authenticity.

Issue 3: Provision of Consultancy and Liaison Services
The Appellant asserted that he provided consultancy and liaison services to the CD, for which invoices were raised. However, the RP found no documentary evidence or agreement to substantiate this claim. The Appellant failed to provide duplicate invoices or proof of Service Tax payment, further weakening his case.

Issue 4: Fraudulent Nature of Documents
The Adjudicating Authority observed that the MoUs and related documents appeared to be fraudulent. Given this observation, the Tribunal suggested that the Adjudicating Authority should exercise its jurisdiction under Section 340 of the CrPC to investigate the alleged fraudulent documents.

Conclusion:
The appeal was dismissed, and the matter was remitted back to the Adjudicating Authority to consider exercising its jurisdiction under Section 340 of the CrPC regarding the alleged fraudulent MoUs. The Tribunal emphasized that presenting forged documents for judicial benefit should not be treated leniently.