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TMI Blog2017 (10) TMI 517X X X X Extracts X X X X X X X X Extracts X X X X ..... any resolution of insolvency process. The present petition is filed for purpose other than the resolution of insolvency as mentioned in Section 65. Therefore, the present proceedings must be held to be a maliciousone and it is liable to be dismissed with cost. It is to relevant to mention here that as per Section 63 of IBC, 2016, no civil court or authority has jurisdiction to entertain any suit or proceedings in respect of any matter on which NCLT or NCLAT has jurisdiction under this Code. Knowing very well that IBC came to force, and only single cause of action arise in the instant case, i.e. Payment of short term loan of ₹ 2.5 Crore, the petitioner has resorted to civil and criminal course of action as stated supra. The instant Company petition is not maintainable and it is liable to be dismissed. - CP NO. (IB) 96/7/HDB/2017 - - - Dated:- 8-9-2017 - MR. RAJESWARA RAO VITTANALA, J. For The Petitioner : Surya Satish and M. Srikanth, Advs. For The Respondent : S. Agasthya Sharma, Adv. ORDER Per : Rajeswara Rao Vittanala 1. This Company petition bearing CP bearing CP (IB) No. 96/7/HDB/2017 is filed by M/s. Asset Advisory Services India Pvt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orate Debtor executed a Promissory Note and issued a duly signed receipt acknowledging the receipt of the amount of ₹ 2,50,00,000/- and promising to repay the same on or before 30.06.2016 together with interest @ 24% P.A. payable in advance monthly instalments. To secure the repayment of the Loan amount together with the Interest thereon, the Corporate Debtor had submitted documents pertaining to 20 Unsold Units and other properties. (6) The Corporate Debtor had sent an email on 8/7/2016 confirming receipt of ₹ 2,50,00,000/- (Rupees Two Crore Fifty Lakhs Only) and the deposit of Original Title Deeds and promised to repay the loan amount with ₹ 2/- simple interest and had requested to adjust the amount of ₹ 20,00,000/- (Rupees Twenty Lakhs Only) remitted on 28/6/2016 towards interest and had reassured that the loan shall be closed by the end of July, 2016. However, it failed to honour its commitment of repayment of the amounts even after 30/06/2016. (7) Further, the Corporate Debtor had issued cheques bearing Nos. 786493, 786494, 786495, 786496 dated 14.11.2016 all drawn on Andhra bank, Mushirabad Branch, Hyderabad, in discharge of part of the debt. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of Financial Creditor. As on date, Corporate Debtor is the absolute owner of 17 flats and 2 acres of land costing more than ₹ 10 crores. Each flat is costing around ₹ 40 lakhs as per latest market value Certificate. (2) By selling/adjusting 6 flats, entire amount paid by Financial Creditor under OTS facility to DHFL can be re-paid. Claim of Financial Creditor in COS No. 1 of 2017 is sought to be adjusted with 6 Flats, as pleaded in written statement-cum-counter claim filed in COS 1 of 2017 pending adjudication, before Hon'ble XIII Addl. Judge, R.R District. (3) The Corporate Debtor is ready to execute six (6) sale deeds in favour of Financial Creditor OR alternatively sell 6 Flats out of 17 un-sold flats and re-pay the entire amount of ₹ 2.5 crores paid to DHFL. But, Financial Creditor obtained Status Quo orders, by misrepresenting to Hon'ble Court and also by suppressing material facts and documents. The said Status Quo orders are sought to be vacated and case stands posted to 28-7-2017. (4) Corporate Debtor is neither Bankrupt nor can be depicted or declared as an Insolvent, since Corporate Debtor and its MD are owning properties worth more th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nked MOU and Agreement of Sale in respect of 20 flats to Corporate Debtor for execution in its favour. Corporate Debtor refused to sign, since the same was contrary to initial agreement and understanding, at the inception of Contract on 30-3-2016. Corporate Debtor can never pay OTS amount to Financial Creditor if MOU and AOS are executed, without selling some of the 17 Flats; apart from inviting litigation from three flat owners, to whom the flats were sold in 2016. (9) Later, Financial Creditor sent emails on 07/07/2016 with request to execute documents mentioned therein by projecting false version. (10) It is stated that Financial Creditor has suppressed and concealed above facts and emails exchanged between parties till 08/07/2016, particularly, those relating to MOU, Agreement of Sale confirms the ulterior motives of Financial Creditor to grab all 20 Flats (though only 17 flats are unsold Flats) pertaining to Corporate Debtor. (11) It is stated that it is highly improbable for Corporate Debtor to arrange for an amount of ₹ 2 Crores on 16/11/2016 within 1 week from date of demonetization on 8-11-2016 and issued four (4) cheques for ₹ 2 crores, when the Corpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties of Corporate Debtor costing around 10 crores for a mere debt of 2.5 crores. (16) It is stated that the functioning of Financial Creditor is detrimental to survival of Rule of Law and may not be entertained by this Honourable Tribunal in the interest of Justice. (17) It is stated that the petition is hopelessly premature to construe the Corporate Debtor either as insolvent or bankrupt and also to initiate above proceedings under Insolvency and Bankruptcy Code, 2016. The alleged default to repay even after the expiry request date of 31-07-2016 was due to frustration of contract by Financial Creditor and also failure to honour reciprocal promise by Financial Creditor, as agreed on 31/03/2016; apart from changing stand/version to charge 50% interest instead of agreed 24%; while insisting to execute alleged MOU and AOS (which are concealed and suppressed before this Hon'ble Tribunal). The alleged default when 4 cheques dated 14/11/2016 got bounced on 18/11/2016 is also the ingenious creation and invention of Financial Creditor to dwell in speculative litigation before various forums with ulterior motives and evil intentions to grab 20 flats, though only 17 unsold flats ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and respondent had exchanged communication about area to be handed over- Appellant having approached court by concealing facts explanation given has to be held unsatisfactory-Prayer for condonation liable to be rejected. (c) 2016 (4) ALD - Page No. 291 Para-9-Non-Mention in Plaint about notices exchanged prior to suit-And unexplained conduct in making claim for larger extent in Plaint than that mentioned by Plaintiff in notice, in facts and circumstances of case, would disentitle Plaintiff to equitable relief of temporary injunction. (d) Sanjay Kaushish v. D.C. Kaushish AIR 1992 Delhi 118 Civil P.C. O-39, Rules 1 2, S. 151 of CPC-Relief of Injunction-Suppression of material Facts-Effect -------Suit liable to be dismissed without going into merits. (Paras 9, 10, 11 12). (e) S.P. Chengalvaraya Naidu v. Jagannath AIR 1994 SC 853 Sec.2 (2)-Evidence Act S- 44-Proceeding in Court- Fraud by Litigant- Withholding vital document relevant to litigation-It is fraud on Court- Guilty party is liable to be thrown out at any stage (Para-8). (f) M.C. Mehta v. Kamal Nath AIR 2002 Delhi 151- CPC Order 39, Rules 1 2- Discretionary Relief of Injunction- Grant of- Any deliberate atte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spects as law, and thus it is to be admitted, consequential moratorium has to be imposed and IRP to be appointed. 7. Shri S. Agasthya Sarma, the Learned Counsel for the Respondent, on the other hand, submit that the Petitioner/Financial Creditor is resorting to multiple litigation by filing civil suits, and criminal cases and dragging the Respondent to various forums basing on false averments without making any bona fide claim. The intention of the Petitioner is to grab all 20 flats including 3 flats, which were sold to Respondents and FIR No.259/2016 was also registered for the amount payable to the financial creditor ₹ 2.5 crores for which the Corporate Debtor has proposed several times to repay OTS amount by selling flats. The Respondent has expressed its willingness to deposit an amount of ₹ 2.5 crores before civil court in case of COS No. 1/2017 provided that it is permitted to sell 17 unsold flats. However, the respondent is unable to pay its said debt due to status quo passed in the said case. As the petitioner fails to co-operate with respondent to sell the flats in question, it has stopped payment of cheques issued to the petitioner. Since the petitioner fai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver, for the reasons best known to the petitioners; he is not willing/interested to resolve the issue in question and thus resorted multiple litigation by filing a case under NI Act on 15.12.2016, and also filed a FIR No. 259/2016 on 06.12.2016 and filing suit bearing COS. No. 01 of 2017 in January, 2017 before Civil Court. In addition, the petitioner also got issued a public notice in Telugu Newspaper dated 2nd December, 2016 by warning the public not to deal any transactions with properties of VSS Projects Ltd. (respondent). 10. Insolvency Bankruptcy Code, 2016 is promulgated with the following objective(s) (a) An Act to consolidate and amend the laws relating to reorganization and insolvency resolution of corporate persons, partnership firms and individuals in a time bound manner for maximization of value of assets of such persons, to promote entrepreneurship, availability of credit and balance the interests of all the stakeholders including alteration in the order of priority of payment of Government dues and to establish an Insolvency and Bankruptcy Board of India, and for matters connected therewith or incidental thereto. (b) The main object of the IBC is to provid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ans etc., arising out of Company affairs. He has also initiated case under section 138 of NI Act before IX Additional Chief Metropolitan Magistrate, Nampally Hyderabad, which is also pending. For one issue, the petitioner is resorting to several proceedings, that too without fulfilling its obligations under the agreements/understanding. The cheques in question were admittedly issued by the Respondents to the Petitioner, subject to certain conditions as mentioned above. However, without complying the obligation on the part of the Petitioner, it has invoked the provisions of NI Act, when the Petitioner admittedly knows that payments of all the cheques were stopped due to failure on the part of the Respondents. As stated supra, civil suit filed is also against same cause of action as raised herein. 13. The Respondent also filed a criminal complaint vide FIR No. 106/2017 on 10.4.2017 with PS Kachiguda under sections 384, 406, 420 IPC, 156(3) CrPC by making allegations against the Petitioner with regard to the cheques in question and also not returning the original title deeds/link documents received from DHFL which were furnished to the Petitioner for verification and also created f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sary to refer the facts as available in the present case so as to see whether the said provisions is applicable to the present case or not. As per the above sections, a person, who initiates insolvency resolution process for any other purpose other than resolution of insolvency, the Adjudicating Authority can impose suitably penalty so as to prevent litigant from misusing provisions of IBC. 16. In the instant case, as stated detailed supra, it is not the case of the Petitioner that the Respondent is unable to pay debt or it is insolvent for the same. While demanding to pay the loan in question, the petitioner is filing cases as stated supra, to prevent the respondent to pay the debt, after selling flats in question and, it is also not accepting the registration of Flats in its favour or it nominee. Admittedly, each flat in question is worth ₹ 40 lakhs at market value and there is absolutely no difficulty for the Respondents to pay the amount. However, the Petitioner for the reason best known to him is not interested to get the money back but only interested to initiate malicious litigations by way of filing civil suit, criminal cases and also case under NI Act as mentioned ..... X X X X Extracts X X X X X X X X Extracts X X X X
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