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TMI Blog2022 (3) TMI 1263X X X X Extracts X X X X X X X X Extracts X X X X ..... be inferred by implication from the nature of the admission and surrounding circumstances. It was held that a statement written in the form a cheque will obviously amount to acknowledgement in writing. To disprove the presumption, the drawer of the cheque should bring on record such facts and circumstances, upon consideration of which the Court may either believe that the consideration and debt did not exist or its non-existence was so probable that a prudent man would under the circumstances of the case act upon the plea that they did not exist. Even circumstantial evidence was held as sufficing to rebut the presumption. If the circumstances so relied upon are compelling the burden may shift to the Applicant. Whether there is any debt which is due to be paid to the Financial Creditors and whether any default in terms of Section 3(12) has been committed by the Corporate Debtor? - HELD THAT:- There is no doubt that this Tribunal has jurisdiction to lift the corporate veil, to understand the genuineness of the transaction. But for the purpose of understanding the genuineness of the transaction, if evidence need to be taken, the Tribunal would not have jurisdiction. In this ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 219 Crores for acquisition of various companies, however same was withdrawn, Lingamaneni Group accepted to pay back the total amount of ₹ 219 Crores along with compensation of ₹ 32 Crores on or before 31.01.2016. ii. It was further agreed that a collateral security for the amount should be paid by Lingamaneni Group. They agreed to register the freehold properties and upon fulfillment of the payments to BSR Group as agreed upon, the BSR Group shall re-convey the security to Lingamaneni Group. If Lingamaneni Group fails to pay the amount, BSR Group has absolute right to sell the security to realise the amounts. It was further agreed upon that in case of deficit, Lingamaneni Group would compensate such deficit along with interest from 31.01.2016. Since Lingamaneni Group failed to adhere to the terms and conditions of the MOU dated 25.10.2015, second MOU dated 24.06.2016 was executed. As per the second MOU the amount payable to BSR Group was reckoned as ₹ 300 Crores plus interest @ 18% p.a. Since Lingamaneni Group failed to repay the debt as agreed, BSR Group initiated some criminal complaints against Lingamaneni Group and FIR's are registered. Linga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er there are two such groups having corporate entity known as BSR Group and Lingamaneni Group. So far as the Corporate Debtor is concerned, it is a Company having individual corporate identity and it did not enter into any MoU either on 25.10.2015 or any time later and never undertook to repay any amount as stated. The binding nature, enforceability and truth of MOU dated 25.10.2015 is denied. A reading of the MOU dated 25.10.2015 reveals that nobody has signed the same on behalf of the Corporate Debtor. It does not indicate that the Corporate Debtor is a party to the said MOU. The said MOU is between two individuals namely Sri Boppana Satyanarayana Rao referred as investor and Sri Ramesh Lingamaneni referred as Company. It does not disclose any involvement of two groups. The description of Sri Boppana Satyanarayana Rao is shown as investor and not as lender and Sri Ramesh Lingamaneni is described as a mere company without prefixing which company. These circumstances would establish the fact that there was no consensus-ad-idem, between the parties to MOU, as to which entities they are representing, in order to constitute a valid contract. In the worst case, it can be said that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20 years which resulted in personal lending and lending between the Trusts and Companies. The Corporate Debtor in their reply affidavit at para No. 12 admitted the signing and issuance of cheques but at the same time stated that the authorised representative was ignorant of the fact and law. The person signing the reply affidavit is one of the noticee and in his reply dated 08.01.2021 at para No. 4 the same person states that his families and group entities closed all transactions and settled all accounts with Financial Creditor's Families and Group entities by the end of December, 2016. The Director of the Corporate Debtor, Ramesh Lingamaneni and authorized signatory of the Corporate Debtor accepted the money from Financial Creditor through bank transfers, which was appropriated according to their needs and necessities. Moreover, the Corporate Debtor accepted and acknowledged the debt by issuing present cheque in favour of the Financial Creditor. Members of Lingamaneni family and different companies belonging to Lingamaneni Family received money from the individuals and entered into MOUs. In the said MOUs the members, Trusts and Companies belonging to the family of Dr. B.S. Ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... first Memorandum of Understanding (MoU) is dated 25.10.2015 to which the parties are Sri Boppana Satyanarayana Rao resident of Poranki, Vijayawada (hereinafter referred to as Investor ) and Sri Ramesh Lingamaneni resident of Gayathri Nagar, Vijayawada (hereinafter referred to as Company ). There is no description or there is no name or description of the Company which is mentioned against the name of Sri Ramesh Lingamaneni. The MoU recites that the investor has advanced certain amounts to the Company towards acquiring stakes in various businesses of the Company, through its nominees. The Investor and the Company have mutually agreed for the advancement of the investment made by the Investor on certain terms and conditions. The first condition recites that, the Investor wants to withdraw hence, the Company has accepted to pay back the total amount of ₹ 219 Crores along with the compensation of ₹ 32 Crores on or before 31.01.2016. It also recites that an amount of ₹ 24 Crores for aviation business was agreed to be paid back before 30.11.2015. An amount of ₹ 20 Crores which was invested for Solar Power Project was also agreed to be paid back by the said date. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vs. Wescare (India) Limited and Another, wherein it was held that each Company is a separate and distinct legal entity and the mere fact that the two Companies have common shareholders or common Board of Directors, will not make the two Companies a single entity. Anyhow in this case there are no two Companies. The contention is only that the person who signed on the MoU is not authorised by the Corporate Debtor. It is not disputed that the said person is not authorized and no evidence of due authorization is produced by the Financial Creditor. There is no indication in the MoU that Sri Ramesh Lingamaneni was entering into the MoU on behalf of the Corporate Debtor. Hence, it has to be concluded that the MoU dated 25.10.2015 does not bind the Corporate Debtor. So also, the MoU dated 23.06.2016 which is executed in the same manner between one Sri Sricharan Veeramanchaneni and Ramesh Lingamaneni. The description however, has undergone a slight change in respect of Mr. Ramesh Lingamaneni, wherein it is stated that he is representing Group of recipient individuals and Companies described in Annexure-1 and referred as party-B. But the Annexure does not help in understanding which group of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to sell the land either by developing into plots or on as is where basis and pay Party-A an amount of ₹ 300 Crores within a period of 6 months from the date of the said MoU. Party-B will identify the portions of land that will be planned for plotting immediately and attach the property plan to the MoU. Clause 5 specifies that if Party-B fails to dispose of the property and reimburse Party-A within six months from then, the party shall appoint two independent valuers to valuate the property and distribute the property at an average value of the two independent valuations in proportion to their respective stakes in the lands of 20/25 Acre plots each having independent access. Hence, the above terms would show that the failure of Party-B to pay the amount would not entitle party-A therein to file a suit or an application before the appropriate forums for recovery or for the default straight away, but would place a responsibility on Party-B to repay the amount by selling the properties which were given as security. The Counsel for the Corporate Debtor contends and rightly so, that the obligations that are to be fulfilled under the MoU dated 23.06.2016 are not fulfilled and hen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court reported in between Hindustan Apparel Industries Vs. Fair Deal Corporation, New Delhi, in which the Supreme Court considered the judgment of Patna High Court in Rajpatiprasad's Case Vs. Kaushlya Kuer reported in AIR 1981 Pat 187, wherein the view expressed was that all the postdated cheques in satisfaction of dues would amount to acknowledgment of liability irrespective of the fact whether the cheques were subsequently dishonoured was relied upon. Before proceeding with examining the relevance of the above judgment it would be beneficial to refer to the Judgment of the Supreme Court reported in (2019) 11 SCC 633 between B.K. Educational Services Private Limited Vs. Parag Gupta and Associates, wherein it is held that the limitation act is applicable to applications filed under Section 7 and 9 of the IBC from the inception of the Code. Article 137 of the Limitation Act gets attracted. It was held that the right to sue therefore accrues when a default occurs and if the default has occurred over three years prior to the filing of the date of the application, the application would be barred under Article 137 of the Limitation Act, save and except in those cases wherein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cheque. Such an admission of payment of debt is to be determined with reference to the point of time at which the purported admission was made i.e., when the cheque was issued. What flows from the above judgment is that, by simple dishonour of cheque the acknowledgement of the debt cannot be done away. If the cheque is dishonoured, the date of acknowledgment of debt would be the date of the cheque. The judgment does not discuss about whether such acknowledgement should be before the expiry of the period of limitation construed from the date of the debt i.e., when the jural relationship between the parties is in existence or not. Section 18 of the Limitation Act was discussed by the Supreme Court in the above said judgment and Section 18 discussed therein is Section 19 of the Previous Limitation Act. Section 18 is extracted hereunder for ready reference. 18. Effect of acknowledgment in writing.-- (1) Where, before the expiration of the prescribed period for a suit of application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontract Act, is as under: Section 25: Agreement without consideration, void, unless it is in writing and registered or is a promise to compensate for something done or is a promise to pay a debt barred by limitation law. -- An agreement made without consideration is void, unless-- (3) it is a promise, made in writing and signed by the person to be charged therewith, or by his agent generally or specially authorized in that behalf, to pay wholly or in part a debt of which the creditor might have enforced payment but for the law for the limitation of suits. But however, the said acknowledgement not being during the period when the jural relationship is in existence it cannot be said that the cheque was issued for an enforceable debt. That apart, the cheque issued by the authorized signatory of LEPL Ventures Private Limited does not have any basis of a debt. It is disjunctive from the MoUs which are executed by an individual named Ramesh Lingamaneni. Hence, unless a nexus can be established between the cheque and the liability under the MoUs, it cannot be said that the LEPL Ventures has issued the cheque in discharge of the liability under the MoUs. However, the issuanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ween the parties concerned. There is no doubt that this Tribunal has jurisdiction to lift the corporate veil, to understand the genuineness of the transaction. But for the purpose of understanding the genuineness of the transaction, if evidence need to be taken, the Tribunal would not have jurisdiction. In this case, from the terms of the MoU itself, it can be concluded that there is no concluded contract between the parties and that the due date for the debt has not arrived and consequently no default has been committed. The counsel for the Financial Creditor contends that in the quash petition filed by the Corporate Debtor it is admitted that an MoU was entered between M/s. LEPL Project Limited on 27.08.2012 and hence it amounts to an admission of the MoU, cannot be considered, since, MoU dated 27.08.2012 is not the basis of the claim herein and the said MoU is not filed along with the Petition. Moreover, they mentioned the said fact only to deny it and not to admit the same. The MoUs which are admitted to have been entered into, in the quash petition, are not filed before this Tribunal. However, even if it is accepted that the MoUs dated 25.10.2015 23.06.2016 are admitte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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