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TMI Blog2022 (5) TMI 921X X X X Extracts X X X X X X X X Extracts X X X X ..... hich includes principal amount of Rs. 4,75,23,619/- alongwith interest from the date of default i.e. on 11.04.2019. 2. M/s. Indiabulls Distribution Services Limited, for short 'Applicant/Petitioner/Operational Creditor' is engaged, inter alia, in the business of distribution for third-party projects of Real Estate Sector including marketing of real estate projects. 3. M/s. Vasathi Housing Limited, for short 'Respondent/Corporate Debtor' is engaged in the business of developing and selling real estate projects. The Corporate Debtor entered into agreements on 25.01.2014, 14.09.2014, 21.01.2016, 29.09.2016 and 07.03.2017 with the Applicant to identify prospective customers for the project namely, 'Vasathi Avante' being developed by the Corporate Debtor at R.K. Puram, Hubli, East Taluka, Bangalore, Karnataka. The Corporate Debtor is liable to pay marketing fee to the applicant on the flats booked by the Applicant. 4. The Corporate Debtor also entered into agreements on 30.03.2015, 16.02.2016, 12.07.2016 and 10.01.2017 with India Land and Properties Limited, for short 'ILPL' whereby ILPL was to identify prospective customers on behalf of the Corporate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble to be rejected on the following grounds: i. The Applicant has not filed any evidence authorising Mr. Narender Kumar as Authorised Signatory to file the instant application. ii. The Applicant filed Arbitration Case for refund of security amount of Rs. 2,90,58,657/- and Rs. 3,99,299/-, which cannot be called as Operational Debt as defined under Section 5(21) of the IBC. iii. Marketing fee cannot be called as an operational debt. The amount claimed by the Applicant is a disputed amount and the Respondent is having a counter claim. iv. The Applicant failed to fulfill the terms and conditions of the first agreement dated 25.01.2014 itself, which was entered into between both the parties and could not sell the flats within the time frame contemplated by the 5 agreements particularly the first one, which slowed down the construction work and caused serious loss to the Respondent. v. The Applicant also failed to deposit the additional security amount of Rs. 1,81,94,114/-, payable under Agreement dated 25.01.2014. vi. The applicant raised invoices dated 05.12.2017 which is a best proof of delay in sales. The respondent paid a sum of Rs. 2,86,59,670/- towards marketing fee an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in Special Leave to Appeal (C) No. 12288/2020 which was filed by the Corporate Debtor against the Order of Hon'ble Delhi High Court supra wherein Hon'ble Supreme Court have pleased to dismiss the Corporate Debtor's SLP against the Order of Hon'ble Delhi High Court dismissing the Petition u/s. 34 of the Arbitration & Conciliation Act, 1996. 9. Heard and perused record and pleadings. 10. In the instant case, the Corporate Debtor being a Real Estate Company entered into various Agreements as annexed with the instant application with the Applicant herein as well as with another Company, namely, India Land and Properties Limited (ILPL), for identification of prospective customers and booking of flats constructed by the Corporate Debtor at its projects named "Vasathi Avante" at Bangalore and "Vasathi Anandi" at Hyderabad. For their services so rendered 'marketing fee' was to be paid by the Corporate Debtor to the Applicant as agreed in the Agreements. On their part, the Applicant as well as ILPL was required to make certain security deposits with the Corporate Debtor, which were to be refunded by the Corporate Debtor on the booking of each unit and/or at the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt, which cannot be called 'Operational Debt' u/s. 5(21) of the Code; and iii. That the claimed amount is 'disputed' and the Corporate Debtor is having a counter claim on the Applicant, therefore, the instant Application is not maintainable. 14. We have given due consideration to the arguments advanced by the Corporate Debtor. i. As regards their first argument, it is seen from the record that a copy of Board Resolution duly authorising Shri Narendra Kumar to represent the Applicant Company before various Courts, Judicial Authorities, Forums, in respect of legal matters is annexed as Exhibit-2 to the instant Application. This resolution is certified by the Director on 18.11.2019. Therefore, we observe that the Application has been filed by a duly Authorised Person on behalf of the Applicant and this technical ground taken by the Corporate Debtor, fails. ii. As regards the argument that the claimed amount does not fall within the definition of 'Operational Debt.', it is pertinent to refer the definition of 'Operational Debt' as stipulated in the Insolvency & Bankruptcy Code, 2016: "Section 5(21) - "Operational Debt" means a claim in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t together with interest, if any, which is disbursed against the consideration for time value of money. It may further be money that is borrowed or raised in any of the manners prescribed in Section 5(8) or otherwise, as Section 5(8) is an inclusive definition. On the other hand, an operational debt would include a claim in respect of the provisions of goods or services, including employment, or a debt in respect of payment of dues arising under any law and payable to the Government or any local authority. Para 27. According to us, it is clear that most financial creditors, particularly banks and financial institutions, are secured creditors whereas most operational creditors are unsecured, payments for goods and services as well as payments to workers not being secured by mortgaged documents and the like. The distinction between secured and unsecured creditors is a distinction which has obtained since the earliest of the Companies Act both in the United Kingdom and in this country, Apart from the above, the nature of loan agreements with financial creditors is different from contracts with operational creditors for supplying goods and services. Financial creditors generally lend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issed by the Hon'ble Delhi High Court and SLP filed by the Corporate Debtor was also dismissed by the Hon'ble Supreme Court. Since the instant Application was filed after the Final Award date, the argument of disputed claim does not hold much water. 18. After hearing both sides and perusing record, we are of the view that in the instant case there is an operational debt and there has been a default in repayment of the same and that this Adjudicating Authority is satisfied that the Operational Creditor has proved its case by placing evidence that default has occurred for which the Corporate Debtor was liable to pay. Hence, the contentions of the Corporate Debtor are overruled. 19. Further the Operational Creditor has fulfilled all the stipulations as required under the provisions of the IB Code, 2016 for the purpose of initiating Corporate Insolvency Resolution Process. In these circumstances, having satisfied with the submissions made by the Petitioner/Operational Creditor, this Adjudicating Authority is inclined to admit the instant Application. 20. Accordingly, the instant application is hereby admitted and this Adjudicating Authority orders the commencement of the Cor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Enforcement of Security Interest Act, 2002 (54 of 2002); iv. The recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. v. Notwithstanding anything contained in any other law for the time being in force, a license, permit, registration, quota, concession, clearances or a similar grant or right given by the Central Government, State Government, local authority, sectoral regulator or any other authority constituted under any other law for the time being in force, shall not be suspended or terminated on the grounds of insolvency, subject to the condition that there is no default in payment of current dues arising for the use or continuation of the license, permit, registration, quota, concessions, clearances or a similar grant or right during the moratorium period. 25. The supply of essential goods or services of the Corporate Debtor shall not be terminated or suspended or interrupted during moratorium period. Further, if the IRP considers supply of any goods or services critical to protect and preserve the value of the Corporate Debtor and manage the operations of such Corporate Debtor as a going concern, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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