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TMI Blog2021 (9) TMI 1380X X X X Extracts X X X X X X X X Extracts X X X X ..... 31.03.2018, however, this does not demonstrate any liability towards payment of financial debt. 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 - 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. Unless the liability is crystallised by a regular civil court, the Petition under Section 7 of IBC cannot be admitted. The mere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re 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 Tridhaatu PrinceCare Developers LLP). The object of the incorporation was for development of a project situated at land bearing CTS Nos. 429/1, 429/2, 429A, 429B and 429D lying at Deonar Farm Road, Chembur. The PrinceCare Group had invested over the years considerable sums of money into the said project. 5. On account of differences between the two groups, it was agreed between the groups that the Prince Care Group Partners would retire from the LLP and LLP would continue under the Tridhaatu Group. Towards this end, a Retirement Deed dated 12th August 2016 came to be executed, whereunder the partner's forming part of the Prince Care Group retired from the LLP. It was provided in the Retirement Deed that the name of the LLP stood changed to that of the Corporate Debtor. Thus, it is the LLP who is the Corporate Debtor in the present case. The name of the LLP was changed to that of the Corpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the Corporate Debtor s failure to make payment the Petitioner was constrained to deposit the aforesaid cheques in or about July 2019, which was surprisingly dishonoured on the ground of funds insufficient . Pertinently, on 5th August 2019, the Corporate Debtor s partners on behalf of the Tridhaatu Group addressed a letter inter-alia admitting their financial difficulties and acknowledging that certain payments were as yet due and payable. Proceedings under Section 138 of the Negotiable Instrument Act, 1888 are presently on going in the light of the aforesaid dishonour of cheques. 12. On account of the above defaults and having regard to the admitted liability of the Corporate Debtor to the Petitioner as reflected in its balance sheet where the sum of Rs. 4,03,28,000/- is shown as an unsecured loan , it is submitted that the present Petition ought to be allowed. Content ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cember 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 Code. 18. The Petition is evidently affirmed on 17TH January 2020 and has been filed only on or after 28th January 2020, thus, it is evident that the Petition is clearly barred by limitation and no claims can be made by virtue of the present Petition by the Petitioner. The Corporate Debtor further submitted that the claim is not maintainable against them as there is no privity of the contract between the Corporate Debtor and Petitioner and no amounts as alleged or otherwise are due and payable to the Petitioner by the Corporate Debtor, as claimed. The earliest claim is on the basis of the said Retirement Agreement, Supplementary Retirement Agreement dated 13th August 2016. Even a bare perusal of the said Supplementary Retirement Agreement will make it evident that the same is made between the partners of the Tridhaatu Group represented through Mr. Krishnan Muthuk ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication 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 not placed on record any contract within the meaning of financial contract on the basis of which the alleged claim is being made by the Petitioner. 26. The Corporate Debtor further claimed that the requirement of financial claim under Section 7 is not satisfied as there is no debt and default of any payment of loan by the Corporate Debtor. cheque 22 para add there. 27. It is a settled law that IBC is not a law of recovery but a law that deals with insolvent, the Corporate Debtor is not at all insolvent and claims made in the proceedings were not dues to the Corporate Debtor hence the provisions of IBC are not attracted. 28. The Corporate Debtor is currently building a huge residential from commercial at Govandi, Chembur and buildings are partially complete. The Corporate Debtor has created third party rights in respect of such residential ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of the Balance PrinceCare Refund, PrinceCare Borla Refund and interest by Tridhaatu to PrinceCare, a. Tridhaatu shall provide post-dated cheques (PDCs) and Demand Promissory Note (DPN) of Tridhaatu Aranya Developers LLP to PrinceCare, details of which are specified in Annexure A annexed hereto; 34. The Supplementary Retirement Deed also captures the event of default in repayment wherein it was categorically mentioned that the Petitioner would encash the post-dated cheques, enforce the Demand promissory note, and call upon Tridhaatu to execute agreement on sale. The Petitioner has also enclosed cheques issued by Corporate Debtor towards security of repayment of debt. 35. The Petitioner has produced communication exchanged between Tridhaatu and Prince Care group and the notices issued between the counsels. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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