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TMI Blog2019 (9) TMI 1423X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 70,00,000/- dated 17.07.2013 towards payment of damages for delay of seven years which was dishonoured. Original Suit is said to be pending before the Hon'ble Civil Court at Bengaluru and criminal cases have also been filed against the Corporate Debtor and its Director - The claims made by the Applicant have not been substantiated and seem to contradict the facts. In the absence of a proper, registered document setting out the basis of claim the Applicant cannot be allowed to use this forum for recovery of money as appropriate cases filed by the Applicant are already pending in Hon'ble Civil Court and Hon'ble Criminal Court. As such, this application deserves to be dismissed. Application dismissed. - I.A. No. 402 of 2019, I.A. No. 430 of 2019 & I.A. No. 431 of 2019 in C.P. (IB) No. 181/BB/2018 - - - Dated:- 9-9-2019 - Rajeswara Rao Vittanala, Member (J) And Dr. Ashok Kumar Mishra, Member (T) For the Appellant : T. Somashekar and Balady Shekar Shetty, Resolution Professional For the Respondents : Susheel Shankar ORDER Dr. Ashok Kumar Mishra , Member ( T ) 1. I.A. No. 402 of 2019 in C.P. (IB) No. 181/BB/2018 is filed by Shri Dev Prakas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offences of concocting false, fictitious and bogus entries in the books of account of the Company in active collusion with its auditors. (7) Despite providing all the documentation and despite the fact that claim of the Applicant herein is stayed by Moratorium due to the CIRP initiated against the Corporate Debtor, which is otherwise pending in O.S. No. 62 of 2016 on the files of the Honhle City Civil Judge, CCH-19, Bengaluru and that the claim of the Applicant has been supported not just by pending proceeding in Hon'ble Civil Court but also vide a cheque being issued in discharge of the liability, it would amount to grave to miscarriage of justice against the Applicant if the claim of the Applicant is not considered. (8) The Resolution Professional has rejected the claim of the Applicant for the following reasons: a. That the Applicant is not a Preference Shareholder as per latest audited financials of the Company. b. That the Order in O.S. No. 62 of 2016 is not produced by the Claimant, despite of the fact that the said case is pending on the files of CCH-19 City Civil Court. (9) It is stated that the RP erred in rejecting the claim on the ground tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been stayed before the Hon'ble Court and that the Applicant has no other alternative remedy but to file his claim and participate in CIRP. Hence, the Applicant is constrained to come before this Adjudicating Authority for consideration of his claim in CIRP. 3. I.A. No. 430 of 2019 in C.P. (IB) No. 181/BB/2018 is filed by Shri Sriram Kandoi (hereinafter referred to as Applicant/Claimant') under Rule 11 read with Rule 34 of the National Company Law Tribunal Rules, 2016, by inter alia seeking to direct the Resolution Professional in C.P. (IB) No. 181/BB/2018 to take the claim as filed by the Applicant, etc. 4. Brief facts of the case, as mentioned in LA. No. 430 of 2019, are as follows: (1) It is stated the Applicant came to the knowledge that CIRP has been initiated against the Corporate Debtor herein vide order dated 11.04.2019 passed by this Adjudicating Authority. Since the Applicant herein had a claim against the Corporate Debtor, he approached the Resolution Professional and filed his claim in Form-C as required under the Code and allied Rules. (2) It is stated that the Corporate Debtor approached the claimant and availed a loan of ₹ 26,00,000/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctors before the Hon'ble City Civil and Sessions Judge at Bangalore in PCR No. 9/19 registered as SPL.C.C. No. 404/2019 for the commission of offences of concocting false, fictitious and bogus entries in the books of account of the Company in active collusion with its Auditors. (10) It is stated that on 11.04.2019 the Adjudicating Authority ordered the commencement of CIRP against the Corporate Debtor herein. (11) Despite providing all the documentation and the claim of the Applicant has been supported by the On Demand Promissory Note and Consideration Receipt and the cheques issued by the Corporate Debtor to discharge its liability, it would amount to grave to miscarriage of justice against the Applicant if the claim is not considered. (12) A perusal of Sections 118 and 139 of the Negotiable Instrument Act, 1881 provides that when a cheque is issued by any person there is a presumption that the same was issued in discharge of legal debt and the Hon'ble Apex Court has fortified the same prescribed law in plethora of precedents laid down. (13) It is stated that the RP vide letter dated 14.07.2019 has sought production of certain documents to which the Cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n not raising the mandatory, statutory presumption under Section 118 and 139 of the Negotiable Instrument Act, 1881. (19) The RP erred in not giving effect to the order passed by the Court of the Lok Adalat based on the settlement entered by the Corporate Debtor and the consent given by the Corporate Debtor before the Court of the Lok Adalat, which amounts to nothing less than contempt of Court. (20) The RP erred in not appreciating that the Corporate Debtor appeared in CC No. 905/2011 and admitted its liability and made part payments which the Ld. Magistrate has recorded in the daily order sheet. (21) The RP has grossly erred in not appreciating that the trite law laid down by the Hon'ble Supreme Court of India that Facts admitted by the Party Need Not Be Proved which fortifies Section 58 of the Indian Evidence Act, 1872 and further an admission is recognized as the best piece of evidence in the eye of law. (22) The RP has grossly erred in not applying the law laid down by the Hon'ble Supreme Court of India in the case of Nagindas Ramdas v. Dalpatram Ichharam alias Brijram, 1974 AIR 471, 1974 SCR (2) 544 and Sangramsinh P. Gaekwad Ors. v. Shantadevi P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Hon'ble City Civil Judge, CCH-76, Bengaluru. (10) It is stated that the RP erred in rejecting the claim on the ground that the MOU does not contain specific details of the property, when at Para-1 it is clearly stated that the Corporate Debtor agreed to sell 4 apartments viz. 2 Nos. of two bed room apartments and 2 studio apartments which were proposed to be built. The RP intentionally is silent about the fact that the Corporate Debtor collected the amount of ₹ 20,00,000/- from the Claimant about 13 years back and in fact cheated the claimant by repeatedly renewing the contract but did not commence the construction of the proposed flats. Any additional details of the flat like the flat no., etc., would arise only after the completion of the construction of the apartments and allotment by the Corporate Debtor. (11) It is also stated that the RP erred in rejecting the claim on the ground that the MOU is not a registered agreement of sale nor it is a registered sale deed intentionally when the law of registration does not mandate the registration of MOU. The RP failed to appreciate that no right, title or interest is passed under the MOU and hence is not require ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rofessional has replied to the Applicant that he is not a preference shareholder as per the latest audited Balance Sheet and accordingly he has not considered the claim for dividend vide his letter Ref: IP/IS/2019-20/OC-07 dated 14.07.2019 (As per the Document No. 2 produced by the Applicant in his Application). However, the learned RP has not filed any objection countering the Application filed by the Applicant. And the RP has also not produced the copy of the latest audited Balance Sheet confirming that he is not a preference shareholder. Considering these facts, the learned Resolution Professional is directed to take necessary action on the claim of the Applicant in accordance with law within a period of seven days from the date of receipt of the order. 7. As far as LA. No. 430 of 2019 is concerned, it is observed that the learned Resolution Professional has sought some documents for considering his claim and it is observed that, the Applicant has not submitted the requisite documents as sought by the Resolution Professional vide his letter Ref: IP/IS/2019-20/FC-22 dated 14.07.2019 (produced as Document No. 2 by the Applicant in his Application). In any case, the lea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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