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TMI Blog2020 (8) TMI 642X X X X Extracts X X X X X X X X Extracts X X X X ..... orted by any document.Therefore, we find no basis for such dispute - it is to be seen that in the clause 7 of mandate agreement total fees payable to the Operational Creditor and schedule for all payments are described. It is mentioned in clause 7(d) that on signing of the mandate for assigning the contracts ₹ 2 lakhs out of the total fee will be payable with the condition that the advance amount of ₹ 2 lakhs are subject to success of the assignment otherwise; it is fully refundable. There are no substance in the dispute raised by the Corporate Debtor that the invoices were issued much prior to the actual sanction of loan by Indiabulls. It is also pertinent to note that when the Appellant has raised invoices then Corporate Debtor has asked the Appellant about the Tan Number and Pan Numbers - In the mandate agreement there is no such clause that the Appellant will organise unsecured loan for the Corporate Debtor and for the same the Corporate Debtor will hand over post-dated cheques as security.Such dispute was first time raised in reply to notice and not supported by any documentary evidence. The Appellant has explained that Corporate Debtor has handed over ten ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellant K.K. Capital Services Pvt. Ltd. filed an Application under Section 9 of the Insolvency and Bankruptcy Code, 2016 (I B Code for Short) against the Sristi Hospitality Pvt. Ltd. (Corporate Debtor). The Adjudicating Authority(National Company Law Tribunal) Mumbai Bench, by the impugned order dated 31.01.2019 rejected the Application on the ground that the claim of the Appellant falls within the ambit of disputed claim. 2. Brief facts of this Appeal are that the Appellant is in business of Financial Advisor and Legal Consultancy Services. The Siristi Hospitality Pvt. Ltd. (In short Corporate Debtor) had a running loan account with JMFARC, however it was under great financial stress due to heavy interest being charged by the JMFARC. The Corporate Debtor approached the Appellant and requested to look for any other Bank or NBFCS which can take over its loan account running with JMFARC. A Mandate/Agreement dated 09.03.2016 was signed between the Appellant and Corporate Debtor which provided that an amount of ₹ 57.5 Lakhs would be paid by the Corporate Debtor to the Appellant on successful sanction of loan. The Appellant got the loan approved in favour of the Corporate De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in the case of Mobilox Innovative Pvt. Ltd. Vs. Kirusa Software Pvt. Ltd. 2017 1 SSC Online SC 353 held as to what are the facts to be examined by the Adjudicating Authority while examining the Application under Section 9, which is as follows: - 34. Therefore, the adjudicating authority, when examining an application under Section 9 of the Act will have to determine: (i) Whether there is an Operational Debt as defined exceeding ₹ 1 Lakh? (See Section 4 of the Act) (ii) Whether the documentary evidence furnished with the application shows that the aforesaid debt is due and payable and has not yet been paid? And (iii) Whether there is existence of a dispute between the parties or the record of the pendency of a suit or arbitration proceeding filed before the receipt of the demand notice of the unpaid operational debt in relation to such dispute? If any one of the aforesaid conditions is lacking, the application would have to be rejected. Apart from the above, the adjudicating authority must follow the mandate of Section 9, as outlined above, and in particular the mandate of Section 9(5) of the Act, and admit or reject the Application, as the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wer rate of interest. However the Appellant had never produced any document to show that he approached any Nationalised or scheduled bank for the same. iv.As per the mandate agreement the advance amount of ₹ 2 lakhs was supposed to be returned to Corporate Debtor. v. The invoice No. 2016-17/SHPL/01 dated 30.04.2016 is fictitious and has never been received by the Corporate Debtor. The invoice is dated much prior to actual sanction of loan i.e. 10.05.2016 by Indiabulls. vi. The cheques were security cheques issued by Corporate Debtor in order to organise unsecured loan for the Corporate Debtor. vii. The Corporate Debtor also denied the payment of ₹ 15 lakhs (fifteen) to the Appellant as shown in demand notice dated 23.10.2017. 11. We have considered the dispute no. (i) (ii). Admittedly the mandate letter was signed by the parties on 9.3.2016. The genuiness of the copy of the emails filed along with the application has not been challenged by the Corporate Debtor therefore we have considered the emails filed by the Appellant.Sandeep Gupta (Mumbai), S.K.Agarwal (Director of KK Capital New Delhi) Abhishek Agarwal (ACA New Delhi Gurgaon) repres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the bank statement of Corporate Debtor-UCO Bank from 01.01.2015 to 29.02.2016 96-97 30.03.2016 Sandeep Gupta Vaibhav Gupta Forwarded the payment schedule made to JM Finance since April 2014 to March 2016. (which received from Corporate Debtor) 98 7.4.2016 Sandeep Gupta Vaibhav Gupta Balance Sheet of Mrs. Rani Shetty W/o Santosh Shetty Savings Bank A/c Statement with Challan and Shop Establishment of Nidhi Restaurant 119 22.4.2016 Sandeep Gupta Abhishek Sandeep Gupta met with individuals of IndusindBank Vikas and Vivek in relation to the LRD proposal and inform about the status of chances of approval of loan. 120-121 28.4.2016 Sandeep Gupta Santosh Shetty Santosh Gupta first time informed the Corporate Debtor that their proposal for credit limit has been approved by Indiabulls and asked to provide few documents on priority basis. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... racts ₹ 2 lakhs out of the total fee will be payable with the condition that the advance amount of ₹ 2 lakhs are subject to success of the assignment otherwise; it is fully refundable. 17. For this dispute, we have considered the email dated 21.03.2016 sent by Santosh Shetty (Corporate Debtor) to Sandeep Gupta (Appellant) in which Santosh Shetty requested that attached letter be forwarded toIndiabulls, the letter (see at page 82 of Appeal Paper Book) is as under:- To, 21 March, 2016 The Manager, Indiabulls Housing Finance Ltd. We are very much thankful for considering our proposal for credit facility of ₹ 16.70 Cr. We are submitting the following information as desired:- We hope you will find in order and proceed with sanction followed by disbursement of loan before 31st March, 2016. Thanking you For M/s Srishti Hospitality Private Limited Director 18. With the above letter and above referred exchange of emails between Appellant, Corporate Debtor and Indiabulls it is apparent that Appellant has made sincere efforts and got the loan sanction for Corporate Debtor from Indiabulls. That is why, the Corpora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de email (see page 131 to 140 of Appeal paper book). 22. In regard to dispute No. (VI) Corporate Debtor in reply to notice raised a dispute that he has given the cheques to the Appellant as a security in order to organise unsecured loan for the Corporate Debtor. 23. In the mandate agreement there is no such clause that the Appellant will organise unsecured loan for the Corporate Debtor and for the same the Corporate Debtor will hand over post-dated cheques as security.Such dispute was first time raised in reply to notice and not supported by any documentary evidence. 24. In regard to dispute No. (VII) The Corporate Debtor denied the payment of ₹ 15 lakhs to the Appellant shown in the demand notice dated 23.10.2017. In this regard, the Appellant has explained that Corporate Debtor has handed over ten cheques out of these, at the request of Corporate Debtor the Appellant has not presented three cheques in Bank for encashment.These cheques were issued after TDS amounting of ₹ 4,30,000/-, 4,50,000/- and 4,50,000/-. Subsequently, the Corporate Debtor has made payment in cash on 08.06.2016, 13.07.2016 and 25.08.2016 total 15 lakhs. The Appellant has explained that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n reply to the notice has mentioned that the Corporate Debtor made an advance payment of ₹ 2 lakhs by cheque to the Appellant this cheque was given at the time of signing of the mandate letter and subsequently, when the loan was sanctioned by the Indiabulls then 10 cheques were issued by the Corporate Debtor in favour of Appellant. Photo copy of these cheques is annexed with the application u/s 9 of I B Code. The Corporate Debtor is not disputing that it has not issued 10 cheques in favour of Appellant. Out of these 10 cheques three cheques (No. 72 dated 30.05.2016 for ₹ 4,30,000/-, cheque No. 73 on 30.05.2016 for ₹ 4,50,000/- and cheque No. 74 on 30.05.2016 for ₹ 4,50,000/-) were returned to the Corporate Debtor and Corporate Debtor has made cash payment on 08.06.2016, 30.07.2016 and 25.08.2016. Therefore, it is not correct that the Appellant has waited for 9 months for encashment of these cheques. The reason for not presenting these cheques is mentioned in the Cashbook that since client requested for not depositing the cheque in Bank .(Please see copy of Cashbook at Page 175, 176 and 177). 28. The Corporate Debtor is in financial crises therefore, at t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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