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TMI Blog2021 (9) TMI 491X X X X Extracts X X X X X X X X Extracts X X X X ..... been given for any purpose. No terms of any agreement, specific period, or continued investment, have been proved by any documents placed on record. Even the date of default, if at all, is not clear nor has any letter recalling the alleged loan/advance has been served on the Corporate Debtor or placed on record. The Financial Creditor may however, be free to seek its remedies elsewhere for recovery of the amount of ₹ 5,00,000/- with or without interest as the case may be, as per the documents in its possession. But certainly, it is not a case for initiation of CIRP under section 7 of the IBC, 2016. This is not a fit case for admission - petition dismissed. - C. P. (IB) No. 1831/KB/2019 - - - Dated:- 5-8-2021 - Rajasekhar V.K., Member (J) And Harish Chander Suri, Member (T) For the Appellant : Abhishek Sikdar and Akash Sharma, Advocates For the Respondents : Aparajita Rao and Sanwal Tibrewal, Advocates ORDER Harish Chander Suri, Member (T) 1. The Court is convened by video conference today. 2. This petition under section 7 of the Insolvency and Bankruptcy Code, 2016 read with Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not provide balance confirmation but the advance towards the purchase of property is always reflected in the Balance Sheets of Corporate Debtor under the head Advance against Property , starting from Audited Accounts as on 31st March, 2014 and lastly on 31st March, 2018. It is further submitted by the Financial Creditor that the reflection of the amount advanced to the Corporate Debtor in its audited accounts is enough evidence to prove that the said sum was advanced to the Corporate Debtor for purchase of property. 4. The Financial Creditor has annexed with the application the audited accounts of the Corporate Debtor with balance sheets and annexures thereto as on 31st March, 2014 till 31st March, 2018, as (Annexure-D). 5. It is further submitted in the petition that the Corporate Debtor is in default of a sum of ₹ 5,00,000/- alongwith interest having accrued thereunder @ 18%, amounting to ₹ 7,47,103/- which is described in the computation sheet (Annexure-E) and the ledger statement of the creditor (Annexure-F) to the petition. It is further submitted by the Financial Creditor that the amount advanced on 6th March, 2014 is already admitted in the balance sheet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or of the said advance against property by the Financial Creditor at all. It is submitted that the acknowledgement being relied on by the Financial Creditor in the balance sheet for the year ending 2017 cannot be an acknowledgement in the eye of law and does not have the effect of extending limitation and no such amount towards advance against property is reflected in any of the balance sheet of the Financial Creditor as alleged, thereby making it evident that the claim of the said ₹ 5,00,000/- does not exist. The Corporate Debtor denied that the Financial Creditor was ever assured by the Corporate Debtor that the said Flat would be delivered to them before 30th September, 2016 or any other date and that in case of any delay, the said amount would be refunded with interest. 9. It is submitted that the Financial Creditor is not a Home Buyers within the meaning of decisions rendered under the IBC and thus cannot maintain this petition. The amount of ₹ 5,00,000/- allegedly advanced by the Financial Creditor is not reflected in the balance sheet of the Corporate Debtor for the financial year 31st March, 2017 under the heading Advance against Property and thus the Corpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tter. 11. During the course of arguments, the Learned Counsel for the Financial Creditor submitted that the Financial Creditor was approached by the Corporate Debtor for sale of one flat of 1600 sq.ft. @ ₹ 3000 per sq.ft. with one covered care parking @ ₹ 2,00,000/- total amounting to ₹ 50,00,000/-. Consequently, the Financial Creditor found the proposal viable and accepted the same and paid 10% of the value amounting to ₹ 5,00,000/- for purchase of the said flat. It was assured by the Corporate Debtor that the flat would be handed over by 30th September, 2016 and in the event of delay or default, the entire ₹ 5,00,000/- will be refunded with an agreed rate of interest @ 18% per annum. It is further submitted by the Ld. Counsel for the Financial Creditor that balance sheets of the Corporate Debtor of Financial Year 2014-15, 2015-2016 and 2016-2017 clearly indicate under the heading 'Loans and Advances', the existing liabilities of the Corporate Debtor to the tune of ₹ 5,00,000/- towards the Financial Creditor and that the amount in default has been considered by the Corporate Debtor as an 'investment in property' and 'advan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l effect of borrowing and, therefore, the ratio laid down by the Hon'ble Supreme Court with respect to the financial debt in Pioneer Urban Land and Infrastructure Ltd. Anr. can be applicable to the facts of this case. It is submitted that the investment was made by the Financial Creditor to derive benefit of the property being developed by the Corporate Debtor at Barik Para, which is the consideration for time value of money. Thus, it is submitted that Ashish Vincom Private Limited comes within the meaning of Financial Creditor and is eligible to file an application under section 7 of the IBC, and there being a debt in existence and default on the part of the Corporate Debtor, the present application of the Financial Creditor may be allowed. 14. On behalf of the Corporate Debtor, it is submitted by the Ld. Counsel that the argument of the Financial Creditor cannot stand to reason because there was no agreement for sale or letter of allotment which could poof on record to suggest that the amount was disbursed against the consideration for the time value of money in any manner whatsoever. It is submitted that the Development Agreement filed on record by the Financial Credito ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 65 of the IBC and citation relied on Manish Kumar vs. Union of India Ors. . 17. Ld. Counsel further relied upon Vishwa Nath Singh Vs. Visa Drugs Pharmaceuticals Private Limited (Company Appeal (AT) (Insolvency) No. 234-235 of 2017), wherein the Hon'ble NCLAT in para 16 observed that- In the present case, the respondent has failed to show that the amount of loan treated to have been given to the Corporate Debtor were disbursed against the consideration for the time value of money. In absence of any such evidence on record to suggest that the amount was disbursed against the consideration for the time value of money and was borrowed by the Corporate Debtor against the payment of interest, we hold that the respondent-M/s. Visa Drugs and Pharmaceuticals do not come within the meaning of 'financial creditor'. 18. Having seen the respective pleadings of the parties and after hearing the arguments on both sides, one thing is clear that amount of ₹ 5,00,000/- had been paid by the Financial Creditor to the Corporate Debtor but the Financial Creditor has not produced anything on record that the amount had been paid to the Corporate Debtor as bo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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