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TMI Blog2018 (8) TMI 591X X X X Extracts X X X X X X X X Extracts X X X X ..... tions, stated therein. Since there was no evidence whatsoever from the side of the CD to show that it ever repaid such loans, there was clear default in repayment of such loans which, in turn, provides this proceeding a robust basis requiring this Authority to initiate CIRP against the CD. I have considered such submission in the light of discussion, made hereinbefore and have already found that all the basic documents , tendered from the side of FCs, fail to establish that the CD had actually accepted the aforesaid loans, agreeing to the terms and conditions, specified in Annexure-B and B-1. Being so, when the primary evidence, pressed into service from the side of the FCs ,failed to show that the CD had actually received the amounts, so stated in the Annexure B and B-1, and that too, only under the terms and conditions, the bank statements, which are evidently in the nature of corroborative evidence only, could not do the role of resurrecting the case of the FCs. In such a situation, no difficulty, whatsoever in rejecting the argument, from the side of FC which structured taking bank statements as its fulcrum. Consequently, the claims of FCs that the FC1 had granted the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sam and was given identification number which is RF/KAM(M)/173/Y/192 of 2017-18. 5. The corporate debtor ( CD ) is a Limited Company which was incorporated on 12-04-2006 and was given identification number which is 270101AS2006PTC008107. According to the averments, made in the application, the FC1 granted a loan to the tune of ₹ 31,66,000/- (Thirty-One lac Sixty- Six Thousand only) in two instalments between 17-05-2013 and 02-08-2013 on the basis of Board resolution dated 16-05-2013. The FC1 had given such loan to the CD when one of the Directors of CD approached the FC1 seeking financial assistance on certain terms and conditions which were reflected in the resolution dated 16-05-2013. 6. On the other hand, FC2 had also given the CD a loan to the tune of ₹ 72,32,000/-(Seventy-Two lacs Thirty-Two thousand only) in as many as five instalments in between 04-06-2013 and 28-12-2013 on the basis of Board resolution dated 27-05-2013. FC2 had granted such loan to the CD when one of the Directors approached the FC2 seeking loan on certain terms and conditions which were reflected in the resolution dated 27-05-2013. The loans, so given to the CD, were to be repaid with int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of loans to the CD as well as the defaults that occurred in repayment of said loans. 11. In their application, the FCs had named one Mr. Amit Pareek, CS as being Insolvency Resolution Professional (in short IRP ) against whom no proceeding whatsoever is stated to be pending. More importantly, Mr. Pareek had already given a written undertaking to be the IRP, if this Authority is at all pleased to admit the application and also pleased to appoint him as IRP. The FCs submit that one Rajesh Kumar Jain, who works as Director in both the FCs aforesaid has been authorized to present the present application on behalf of the FCs 12. Mr. Goswami, learned counsel appearing for the FCs submits that the application under consideration was preferred strictly in accordance with the directions rendered in the Code as well as in Rule 4 of the Rules of 2016. Though a joint application has been filed on behalf of both the FCs but a joint application is also permissible under the law vide Section 7 of the Code of 2016 read with Rule 4 of the Rules of 2016. According to Mr Goswami, the application under consideration is complete in all respects and therefore, same may be admitted. 13. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... K. Mondol resident of Arati Plaza, 3D, Chandmari, Guwahati -781003, Herein after referred to is the First Party (which expression shall mean and include their heirs, executors administrators, legal representatives and assigns) of the ONE PART. (1) SMTI. SHITAL JAIN wife of Shri Rajesh Kumar Jain, by profession business and 2) SHRI JITENDRA KUMAR JAIN, by profession business, both are residents of 3rd Floor, Avantika Nilay, Ulubari Bazar Road Ulubari, Guwahati- 781007, in the District of Kamrup (Metro), Assam, hereinafter referred as the joint SECOND PARTY (which expressions shall mean and include their heirs, executors, administrators, legal representative and assigns) of the OTHER PART WHEREAS the parties of the First Party have approached the parties of the Second Part to invest in the Borbari Project of the company and accordingly the parties of the second part being interested in the Borbari Project of the company, have agreed to invest into the Borbari Project upon terms and conditions as stipufated as under: NOW THIS MEMORANDUM OF AGREEMENT WITNESSETH AND IT IS HEREBY AGREED TO BY AND BETWEEN THE PARTIES AS FOLLOWS: - 1. All the Income Tax, Vat, Service T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roject and 2 Flats as above, balance Net profit will be shared between the First Party and the Second Party in the equal ratio. 7/19. That though the Second Party is primarily concerned for the Borbari Project of the Company, they may continue in the company in future even after completion of the Borbari Projects in all respects and after clearing all the dues of the Second Party including the share of profits from the Borbari Project, if the First Party so desires and the Second Party is agreeable thereto. 18. Under the MOU dated 24-05-2013, Smti Shital Jain and Sri Jitendra Kumar Jain had agreed to infuse money into the company so as to complete an ongoing project and also to facilitate the completion of another project already undertaken by the CD. In the MOU1, it was also agreed upon by the parties that money, to be infused by said Smti Shital Jain and Sri Jitendra Kumar Jain was agreed to be utilised in liquidating various liabilities of the CD as well as in making repayment of share-money to some shareholders who wanted to exit from the Company. 19. Under the MOU1, there was an agreement that apart from providing the 2nd party of MOU 1 two flats in the newly con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (M), Assam ad b. SRI JITENDRA KUMAR JAIN, S/O Sri Bimal Kumar Jain, in the district of Kamrup (M), Assam both being incoming Director/ Investor of M/s. Saroj Realtors and Developers Pvt. Ltd. (which expressing shall unless repugnant to the context or meaning thereof, shall mean and include his heirs, successors, executors, administrators and assigns) of the THIRD PART. AND 1. MRS. MEENA KUMARI DAS, W/O Mr. Prasanna Kumar Das, aged around 45 years, resident of Naojan Goon, Betbari, AH More, Sibsagar, Assam being one of the Directors hereinafter referred to as the CONFIRMING PARTY of the FOURTH PART. WHEREAS some differences have been arisen between the two Direcors i.e. SHRI BAJNAJIT TALUKDAR and SHR1 AVISHEK CHOUDURY of SRDL and in order to resolve such differences amicably between the two Directors, a meeting was held on 28-04-2013 in presence of Mr. Indraneel Chowdhury, Advocate and Mr. Rajeev Bora, Friend wherein some resolutions have been taken to resolve the differences. WHEREAS on the basis of such resolutions, it was mutually agreed between the parties hereto that SRI BANAJIT TALUKDAR and SRI TARUN KUMAR DHEKIAL will resign from Directorship of the Company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... L as director before the resignation of Second Party and Form 32 of Third Party be submitted immediately before the Registrar of Companies. The Third Party hereby confirms their intention to invest in SRD as provided in this MOU. The First Party shall take all necessary steps for making the required changes in the records of the Registrar of Companies at Shillong and the bankers of SRDL as per procedures of law within a stipulated period of 45 (Forty-Five) Days from the date of signing of this MOU. During the intervening period, it is agreed between the parties that the Second Party shall have to extend full cooperation to the Company in running the day-to-day affairs of SRDL, as and when the need so arises/ 21. Thus, under the MOU 2, the third part therein (who were second party in MOU1) was to infuse money into the company in order to liquidate the liabilities which the company had towards the second part of MOU2. But such money was required to be infused to the company in a manner as detailed in such a MOU1 which would ultimately be used in liquidating the various liabilities as well as in making repayment of share money to some of the shareholders. 22. Under the MOU2, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... beause as per the MOU dated 4th June, 2013, the funds were supposed to come from Sri Jitendra Kumar Jain and Mrs. Shital Jain only and not from any other party. He also informed the Board that the money has mainly been utilised for payment to Sri Banajit Talukdar on behalf of outgoing directors Sri Banajit Talukdar and Sri Tarun Kumar Dhekial and shareholder Mrs. Bobby Pinky Dhekial. Following resolution was taken: RESOLVED THAT in view of the tendering of the said funds from parties related to Sri Jitendra Kumar Jain and/or Mrs. Shital Jain and acceptance of the same by the company whereas the same was not supposed to be from such other parties and should have been from only Sri Jitendra Kumar Jain and Smt Shital Jain as per the MoU, the same be kept under Interest Free Unsecured Loan and necessary arrangements be made for refund of the same to the respective parties according to the convenience of the Company. The Board had nothing more to discuss or resolve today and hence Sri Avishek Choudhury declared the meeting as concluded at 11.35AM/ 26. When one reads MoU-1------contends learned counsel appearing for the CD---he would find that there existed a relationsh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the company is a juristic person, law allows a company to sue for wrong done to it. Similarly a company can also be sued for the wrong which are committed by the officers/employees of the company, however, during the course of employment. Since the company acts through its Board of Directors, before suing a company for the alleged wrong committed by it, it needs to be established that the act- alleged to be illegal/wrong-- was committed under the authority of the company. In other words, it needs to be shown that such an act in the name of the company was approved by its Board of Directors. 31. In the present case, the FCs claim that on being approached by Sri Abhishek Choudhary, one of the directors of the company, with a request for loans, the FC-1 granted the CD a loan to the tune of ₹ 31,66,000/-whereas the FC-2 too granted the CD a loan to the tune of ₹ 72, 32,000 on the terms and conditions, specified in the letters sanctioning such loans which are appended to the application as Annexures- B B-l. Situation being such, it is obligatory for the FCs herein to show that while approaching them with a request for loans, Sri Choudhary had duly been authorised to do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in section 18, or (5) mistake, subject to the provisions of sections 20, 21 and 22. Consent is said to be so caused when it would not have been given but for the existence of such coercion, undue influence, fraud, misrepresentation, or mistake. 35. Referring to Annexure-B and B-1, Mr. G Chaudhary , he learned counsel for the CD has again contended that the purported contract in the resolution dated 16-05-2013 and in resolution dated 27-05-2013 reveal that the CD accepted money, specified therein, presumably on condition that it would repay such amount on 31-03-2013 with 24% interest on the principal amounts to be calculated annually. Since such loans were granted under some very rigid conditions regarding repayment and interest on the principal amounts, it also needs to be shown that such conditions are unconditionally accepted by the CD. 36. Such a duty, found imposed on the FCs increases many folds because of the fact that as back as on 29-03-2014, the CD seemed to have accepted such loans -not under the terms and conditions, specified in Annexure -B and B-1-but--- as non-interest bearing unsecured loans. The resolution, adopted by the CD on 29-03-2014 which i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on being properly approached by it. Therefore, the legality or otherwise of the claims made in the present application are to be tested -not on the basis of the materials in the MoU-1 and MoU-2---but----on the materials, available on record in the proceeding under consideration. 41. It has been submitted that the contract, so disclosed by the resolution dated 16-05-2013 and the contract as disclosed in resolution dated 27-05-2013, reveal that those contracts are complete in all respects which meet all the conditions incorporated in various provisions in the Contract Act. In the fact of such disclosures, there cannot be any escape from the conclusion that the contracts in Annexure-B and B-1 do not suffer from any infirmity whatsoever and as such, said contracts are binding on the parties thereto. 42. Referring to the bank statements, annexed with the application, as Annexure-1 (i) to Annexure-l(xii) , it has been submitted that the statements in Annexure-1 (i) to Annexure-l(xii) being in the nature of admission and also being in tune with the claims ,made by the FCs in the application u/s 7 of the Code , 2016 , support more and more the fact that the CD accepted the loans afor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the prescription in Section 173/174 of the Companies Act of 2013. However, it is sometimes possible to give post facto approval to the act(s), done without its consent. 47. Therefore, any act, done by a Director of a company, which does not have seal of approval of the Board cannot be said to be act(s), done by the company. Such act(s), if not ratified by the Board subsequently, would always be regarded as act(s), done by such director in his individual capacity. In such a scenario, the act(s), done by the Director of a company in his personal capacity, cannot be binding on the concerned company in any manner whatsoever. 48. Coming back to our case, it is found that CD persistently claims that when Sri Choudhary allegedly approached FC-1 on 16-05-2013 and FC-2 on 27-05-2013, he did not do so as an authorised agent of the CD- since-there is nothing on record to show that he had ever been authorized by the Board of CD to approach the FCs seeking financial assistance from them in the name of CD - leave alone- latter s authorising him to secure aforesaid loans under some very stringent terms and conditions , so incorporated in Annexure-B and B-l. Being so , said loans , by no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s possible, though it seems most appropriate where the contract has to be with corporal property. The word, same thing must be understood as the whole content of the agreement, whether it consists wholly or in part of the delivery of material objects or payment or other executed act or promise. But then, no effective contract can come into existence unless the parties are ad item on all the essential terms of the transaction. 54. In our instant case, the FCs claim that FC1 granted an unsecured Loan of ₹ 31,66,000/-(Rupees thirty one lacs Sixty Six Thousand only) to the CD @24% interest to be payable annually at the end of every financial year and the principal sum along with all the accrued interest should be paid on or before 31-3-2016. Similarly, FC-2 granted unsecured Loan of ₹ 72, 32,000/- (Rupees Seventy-Two Lacs Thirty-Two Thousand only) to the CD on very similar terms and condition. But the FCs did not produce anything on record to show that the CD had ever agreed to accept the aforesaid loans on the terms and conditions, so incorporated in Annexure-B and B-1. 55. Since the CD had fiercely disputed its ever securing of such loans---much less- its securing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions specified in Annexure B and B-1. 59. However, the resolution dated 29-03-2014 reveals more and more skeletons in the cupboard supporting the claim of the CD that it had never secured any loan from the FCs. In the connection, it may be stated that under the resolution dated 29-03-2014, the CD had virtually denied having taken any loan from the FCs at any point of time. In simple words, said resolution nearly shattered the very base of the resolution dated 16-05-2013 as well as 27-05-2013. What is, however, important to note is that such facts came to the knowledge of FCs as back as 2014. 60. Since the resolution dated 29-03-2014 almost set at naught the claims, made in resolution dated 16-05-2013 as well as 27-05-2013, any one would have invariably expected the FCs herein to take recourse to the law at the earliest possible opportunity so that they did not suffer the risk of losing such big amount of money one day. However, the response of the FCs to the resolution adopted by the CD on 29-03-2013 is found to be somewhat bizarre and strange to say the least nasmuch as such conduct belies all normal human conduct and behaviour. 61. Unfortunately, such a bizarre behaviou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16-05-2013 and the FC-2 had also granted it a loan to the tune of ₹ 72,32,000/- on the basis of resolution, dated 27-05-2013 on the terms and condition enumerated in the Annexure-B and B-2 and that the CD failed to repay such loans in accordance with terms and conditions, being found untenable in view of materials available on record, are rejected. 66. Resultantly, this proceeding is found devoid of merit and same is accordingly dismissed. 67. Before parting with the record, I want to make it clear that the observations, made and decisions, taken herein before are made or taken in the context of the present proceeding only and, therefore, same would not have any direct bearing on any proceeding over the same subject matter which parties hereto may initiate in accordance with the procedures, prescribed. 68. It may also be stated here that after the initiation of this proceeding, the parties hereto wanted to settle the dispute amicably and therefore, on the request of the parties, some accommodations were granted to the parties hereto to have the dispute settled amicably. However, the settlement was not possible and therefore, it was decided to dispose of the matter o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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