9911796707
TMI Blog2021 (9) TMI 1380X X X X Extracts X X X X X X X X Extracts X X X X ..... LLP (hereinafter called the 'Corporate Debtor') on the ground that the Corporate Debtor has committed a default as on 12.08.2016 to the extent of Rs. 6,43,28,000/- including interest @21% per annum. 2. The Petitioner is a company incorporated under the provisions of the Companies Act, 1956 and is inter-alia engaged in the business of real estate. The Corporate Debtor is a Limited Liability Partnership (LLP) duly incorporated under the provisions of the Limited Liability Partnership Act 2008. The Corporate Debtor is also inter-alia engaged in the business of real estate. Contentions of Petitioner: 3. The Petitioner is part of the Prince Care Group, which comprises of the Petitioner Mr. Dharmesh Kishore Chheda, Mr Bhavesh Kishore Chheda and Prince Care Developers LLP. The Corporate Debtor is part of the Tridhaatu Group which comprises of the Corporate Debtor (formerly known as Tridhaatu Prince Care Developers LLP), Mr Krishnan Muthukumar, Mr. Dhananjay Anand Sandhu, Mr. Pritam Chivukula, Tridhaatu Asset Holdings LLP, Tridhaatu Mumbai Structures Private Limited and Sandu Homes LLP. 4. On 4th April 2012, The Prince Care Group and the Tridhaatu Group incorporated an LLP by the name ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nfirmed to the Petitioner by way of an Account Confirmation, duly signed and stamped by the Corporate Debtor that a principal sum of Rs. 4,03,28,000/- was due and outstanding by the Corporate Debtor to the Petitioner. This amount was towards the principal, as aforesaid and not interest thereon. Pertinently, in the entire Affidavit in Reply, there is no denial whatsoever of this Account Confirmation. 9. The Corporate Debtor has suppressed from this Hon'ble Court a fact which the Petitioner learnt only recently on carrying out the search of the MCA record that in the balance sheet of the Corporate Debtor as on 31st March, 2018 and 31st March, 2019, the entire aforesaid principal sum of Rs. 4,03,28,000/- is shown as outstanding, due and payable by the Corporate Debtor to the Petitioner. 10. From time to time, certain payments were made to the Petitioner by the Corporate Debtor. As set out in one of the legal notices pertaining to the dishonour of cheque, as of 31st July 2019, after making all requisite adjustments for the monies received towards interest and principal, a sum of Rs. 6,61,93,813/- was still due and payable to the Petitioner by the Corporate Debtor. 11. As a result of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity whatsoever exist in the books of the Corporate Debtor in favour of the Petitioner. Even the documents filed by the Petitioner to substantiate its purported claim clearly shows that the alleged claim is ex-facie time barred and otherwise cannot be granted in light of the provisions of the Limitation Act read with section 238A of Insolvency and Bankruptcy Code, 2016. 17. The purported claim made by the Petitioner is evidently on the basis of a Supplementary Retirement Deed dated 13th August 2016 by which the partners from the Tridhaatu group had agreed to pay certain amounts to partners from the Prince Care group in light of the exit by partners from the Prince Care group from the LLP. As per the Supplementary Retirement Deed, the last tranche of amounts to be paid by partners of the Tridhaatu group to partners of the Prince Care group was on or before 31st December 2016. From the documents of the Petitioner, it is evident that the cause of action or date of start of limitation to make the alleged claim would at best be 31st December 2016 and therefore, the same would expire on 31st December 2019 as per the provisions of the Limitation Act, 1963 read with Section 238A of the Cod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Petitioner, as alleged or otherwise. 22. The Supplementary Retirement Deed clearly states the fact that post-dated cheques with specifications shall be provided by the Corporate Debtor to the Petitioner. These clauses are incorporated in an agreement where the Corporate Debtor is neither a party nor a confirming party. Thus, the incidence of liability on the basis of these cheques cannot arise against the Corporate Debtor and revive the liability of the partner's. 23. Thus, it is evident that the claims made by the Petitioner is completely barred by limitation without privity and without jurisdiction. The Corporate Debtor thus respectfully submits that the present petition may be dismissed. 24. The Corporate Debtor contended that the Petitioner has not placed on record any financial contract within the meaning of Rule 3 (1) (d) of the Application to Adjudicating Authority Rules. Rule 3 (1) (d) is as follows: "3.... (1)... (d) "financial contract" means a contract between a corporate debtor and a financial creditor setting out the terms of the financial debt, including the tenure of the debt, interest payable and date of repayment;" 25. Therefore, the Petitioner has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d loans") calculated as on 15th August 2016. iii. Refund of Unsecured Loans along with interest thereon advance by third parties and affiliates of Prince care in the said LLP ("Third Party Unsecured Loans") calculated as on 15th August 2016. iv. Monies contributed by Prince care LLP and its affiliates (being Rs. 6,13,34,457/-) towards miscellaneous expenses for the said project ("Miscellaneous Expenses")." In view of the above clause Tridhaatu agreed to pay Petitioner an aggregate amount of Rs. 45,08,08,384/- towards one-time settlement and refund of unsecured loan with interest as on 15.08.2016. 32. Further, it is also pointed out that Tridhaatu should pay Petitioner interest on one-time settlement, PrinceCare unsecured loan and third-party unsecured loan solely at the discretion of PrinceCare (Petitioner) as per the Supplementary Retirement Deed dated 12.08.2016. 33. It was further agreed that as security of repayment of balance PrinceCare Tridhatu should provide post-dated cheques and of Tridhaatu Aarany Developers LLP, the present Corporate Debtor to the Petitioner. The clause towards security of repayment is as follows: "3. SECURITY FOR REPAYMENT: To secure repayment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te Debtor also confirmed the liability of payment of Rs. 4,03,28,000/- to the Petitioner herein as on 31.03.2018, however, this does not demonstrate any liability towards payment of financial debt. 39. The Petitioner has failed to demonstrate the basic ingredients of financial debt along with interest, if any, which is disbursed against consideration for time value and money and is in existence between the Petitioner and Corporate Debtor. The Petitioner is relying upon a reference being made in Supplementary Retirement Deed and that cheques were presented as security without any basis of contractual terms between the Petitioner and Corporate Debtor 40. It is an undisputed fact that there is no privity of contract between the parties and a mere reference to certain liability while handing out cheques, confirmation of liability, it cannot be construed that there is a binding agreement of any debt due in terms of Section 5 (8) of the Code and hence, there is no evidence of default for non-payment of money by the Corporate Debtor towards his obligation of payment of monies under any contract is thus not established. Further, the claim is barred by limitation. 41. Unless the liabilit ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
