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TMI Blog2020 (8) TMI 576X X X X Extracts X X X X X X X X Extracts X X X X ..... handed over. The intent of the parties in all the MoUs appear to be of extending Financial Debt. There are no reason to interfere with the Impugned Order of the Adjudicating Authority. The Adjudicating Authority has found it to be Financial debt outstanding and admitted the Section 7 Application - appeal dismissed. - Company Appeal (AT) (Insolvency) No. 1383 of 2019 - - - Dated:- 27-1-2020 - [ Justice A.I.S. Cheema ] Member ( Judicial ), [ Justice Anant Bijay Singh ] Member ( Judicial ) And ( Kanthi Narahari ) Member ( Technical ) For the Appellant : Mr. Saurabh Jain, Advocate For the Respondents : Mr. Ritesh Agrawal, Mr. Teejas Bhatia and Mr. Aishwarya Adlokha, Advocates for Respondent No. 1 Mr. Shailendra Singh, Advocate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncial Creditor, the Corporate Debtor had agreed to grant a construction contract worth ₹ 10 Crores to the Financial Creditor. Financial Creditor claimed that by yet another third MoU dated 03.11.2017 (page-69), two earlier MoUs were superseded where the Corporate Debtor acknowledged deposit of ₹ 90 lakhs and agreed to repay the same with 2% interest per month with a lock in period of 11 months. Both the parties agreed to this. The lock in period was agreed between the parties after which the Financial Creditor could demand back the deposit by giving one month s notice. Financial Creditor claimed that the Corporate Debtor even executed and delivered two post-dated cheques guaranteeing the repayment. Financial Creditor claimed tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an Operational debt. 6. We have gone through three MoUs referred above. In first two MoUs dated 05.09.2017 (Page 61) and 12.09.2017 (Page 67) there was reference to the amount being given as Security Deposit against construction contract and it was specifically mentioned that the Corporate Debtor will pay interest @ 1 % per month and also provided for return of Security Deposit. The fact remains that the parties did not go into execution of any construction contract and entered into third MoU dated 13.09.2017(page 69). The contents of the third MoU may be reproduced. In it, Corporate Debtor is First Party and Respondent No. 1, Financial Creditor, S.S. Enterprise is Second Party . It states: 1. The Second party has given se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yd. each unit as a guarantee of security deposit. 5. In order to assure the second party and to secure the repayment of security deposit and interest of the second party, the following post dated cheque has been issued by the First Party. A Cheque No. 000179 to 000189 for ₹ 1,80,000/- each (Rs. One lakh Eight Thousand only), drawn on Andhra Bank, for interest payable as mentioned in Para No. 2 above. 6. After 11 months of this MOU the Second party can demand its Security Deposit back from the First Party by giving him one months prior notice and within said notice period the Frist Party will return the loan along with interest, as mentioned above in Para no. 2 and the Second Party will return the aforesaid units, as me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be made on the terms of the MoU which provides that in the event of default, the petitioner would be entitled to the 4 plots. Admittedly the possession of these plots was never offered and the same is more by way of an option to secure the debt. As per the terms and conditions the amount was payable on demand. The Corporate Debtor s failure to return the same has given rise to a default. Under such circumstances, where the claim of ₹ 90 lakhs and the interest due thereon remains unpaid, the financial creditor is entitled to the prayer made herein. .. 9. Considering the reasonings recorded by the Adjudicating Authority and examining the wordings of the third MoU, as produced above and taking conspectus of the whole matter, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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