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TMI Blog2021 (4) TMI 1297X X X X Extracts X X X X X X X X Extracts X X X X ..... turned after receiving entire sale consideration, except 5 cheques. This stand of the Respondent also appears to be unacceptable - As per the MOU which is signed and agreed to by both sides, there is a clear liability to pay ₹ 6 crore, including the mode of payment, as referred to supra. There was, therefore, no pre-existing dispute, as has been made out by the Respondent, and a clear debt existed. From the examination of its accounts, it is quite visible that the Respondent has lost its ability to generate revenues, continue its business and pay its debts. It is only harping on its contention that it has not entered into Memorandum of Agreement dated 08.06.2015 and is in denial of the liability. However, as mentioned above, this claim does not appear to be correct and there does not appear to be any bonafide dispute. The dispute stated to be pre-existing is unrelated to the debt in question, and is subsequent to the MOA as per which the debt arose. Petition admitted - moratorium declared. - C.P. (IB) No.60/BB/2020 - - - Dated:- 16-4-2021 - Hon'ble Shri Rajeswara Rao Vittanala, Member (Judicial) And Hon'ble Shri Ashutosh Chandra, Member (Technical) For ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a sum of ₹ 6 Crore along with interest at the rate of 18%p.a. Copy of the Memorandum of Agreement dated 08.06.2015 is annexed to the Application. (4) As per the said MoU the Respondent is liable to pay the Petitioner a sum of ₹ 6 Crore and towards the same the Respondent had issued 12 postdated cheques of ₹ 50 Lakh each. (5) It is pertinent to mention that out of the said 12 cheques, 7 cheques were taken back from the Petitioner on the pretext of correcting the dates on the said cheques and the remaining 5 cheques were presented to the Bank on various dates and the same were dishonoured. Copies of the 5 cheques are annexed to the Petition. (6) The Petitioner submits that the Respondent failed to make the payment for the services rendered by the Petitioner and having no other option issued Legal Notice dated 03.03.2017 demanding payment of ₹ 6 Cr within 15 days from the date of receipt of the notice. Copy of the legal notice is annexed to the Petition. (7) The Respondent issued Reply Notice dated 20.03.2017 to the Petitioner denying the alleged Memorandum of Agreement. The Respondent states that after execution of registered sale deed, Respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n disputes between themselves and the Civil Aviation and Metrological Department Employees Co-operative House Building Society Limited and there is an Arbitration Award passed on 20.07.2009 by the Arbitrator in the Arbitration Proceedings between the said Civil Aviation and Metrological Department Employees Co-operative House Building Society Limited and the Petitioner. Further clause 8 of the Deed of indemnity provides as extracted below: 8. The Vendors hereby indemnify and agrees to keep indemnified at all times the Purchaser and its successors in title against any loss or damage which the Purchaser or its successors may sustain on account of the Purchaser or its successors' right to remain in peaceful possession and enjoyment of the Schedule Property as absolute owner/s thereof being disturbed in any manner whatsoever on account of any defect or deficiency in the title to possession of the Schedule Property, and the Vendors hereby agree to defend the right, title and interest of the Purchaser and any of its successors in title and interest of the Purchaser and any of its successors in title to the Schedule Property against all claims, and that all expenses in that regar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10.2016 and second demand on 03.03.2017. 5. The Petitioner filed Rejoinder reiterating its contentions and stating that the E stamp paper for the MOA dated 08.06.2015 was purchased by the Respondent itself and that the Respondent has consciously entered into the agreement. It is further stated that in O.S No.770/2015 the factual position of the Petitioner with the Civil Aviation Society which was in dispute was decided finally vide Order dated 08.01.2018 which has bearing on O.S No.87/2014 which was against the Petitioner. Copy of the order is annexed to the Rejoinder. The order acts as res judicata to O.S No.87/2014. 6. Further, the dispute has never come in way of the Respondent who has sold the property and is enjoying the sale consideration received which admitted profit of more than 45% within 11 months. The Subsequent purchaser is also in peaceful possession of the property. 7. The Petitioner has approached this Bench on the basis of Memorandum of Agreement dated 08.06.2015. The relevant clause is culled out hereunder for ready reference: (c) in consideration of the development carried out by the second party in the Schedule property and expenditure incurred for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ld. City Civil Court, Bengaluru (CCH-61) in OS No. 1445/2020 for declaration that the MOU is null and void. We may mention here that this forum is not for carrying out detailed investigation into the correctness of otherwise of any agreement. IBC envisages summary proceedings as are apparent o\n the face of it. In the instant case and on a perusal of the Agreement dated 08.06.2015 it appears that the same is genuine and valid. The Respondent's plea that this Agreement is not genuine appears to be clearly untenable. 11. Now the question arises where there is a bonafide pre-existing dispute. It is seen that Legal Notice dated 28.09.2016 issued by the Respondent to the Petitioner was with respect to enforcement of deed of indemnity, and not payment of ₹ 6 crore. It was stated in the Legal Notice that relying upon the indemnity by the Petitioner, the Respondent entered into Sale deed with subsequent purchaser and indemnified the subsequent purchaser in respect of the litigation pending against the property. The Subsequent purchaser withheld ₹ 8 Cr from the sale consideration until the disposal of the pending litigation of the property. Therefore the Respondent called ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the MOA. To this, the Respondent has denied having entering into MOA and states that the cheques were given prior to the Sale Deed dated 08.06.2015, and were to be returned after receiving entire sale consideration, except 5 cheques. This stand of the Respondent also appears to be unacceptable. We cannot take cognizance of any oral understanding that may have been entered into by the two sides. As per the MOU which is signed and agreed to by both sides, there is a clear liability to pay ₹ 6 crore, including the mode of payment, as referred to supra. There was, therefore, no pre-existing dispute, as has been made out by the Respondent, and a clear debt existed. 15. On a perusal of the Balance Sheet of the Respondent Company for year ending 2017-18 it is seen that its reserves and surplus are in the negative, being (-) ₹ 109,336,840 which has reduced further having been (-) ₹ 26,879,958/- in the preceding year. It total liabilities stand at ₹ 78,30,01,516/- as on 31.03.2018 of which Long term borrowings are ₹ 25,00,00,000/-. On the other hand its cash and cash equivalents have reduced substantially from ₹ 92,73,868/- to ₹ 18,88,272/- ove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essary disclosures as per the Code of Conduct for Insolvency Professionals. 18. In view of the above facts and circumstances of the case and the law on the issue, by exercising powers conferred on the Adjudicating Authority, U/s 9(5)(i) of the Code, the Company petition bearing C.P. (IB) No.60/BB/2020 is hereby admitted by initiating Corporate Insolvency Resolution Process in respect of the Respondent Corporate Debtor, M/s Metrik Infraprojects Private Limited with the following consequential directions: (1) Mr. Kanekal Chandrashekhar, bearing IP Registration No. IBBI/IPA002/IP-N00642/2018-2019/11964; who is a qualified Insolvency Professional, is hereby appointed as Interim Resolution Professional, in respect of the Corporate Debtor, namely, M/s Metrik Infraprojects Private Limited to carry out the functions as mentioned under the Insolvency and Bankruptcy Code, 2016 and various rules issued by IBB/ from time to time; (2) The following moratorium is declared prohibiting all of the following, namely: (a) the institution of suits or continuation of pending suits or proceedings against the Corporate Debtor/Corporate Debtor including execution of any judgment, de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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