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TMI Blog2021 (1) TMI 1271X X X X Extracts X X X X X X X X Extracts X X X X ..... ty to the tune of Rs.6,52,95,183/- as submitted in Form C dated 07.12.2018. ii. To direct the respondents to follow procedures established by law and principles including principles of fairness, impartiality and transparency in the conduct of Corporate Insolvency Resolution Process (CIRP) for Respondent No. 02. iii. To restrain RP from creating any third-party interest and dealing with 15 flats situated at B5/1, Lok Nisarg CHS Ltd., Lok Nisarg, Vaishali Nagar, B.R. Road, Mulund West, Mumbai - 400 080 in a manner that undermines the interest of the applicant with respect to the claim and security interest of the applicant being subject matter of the case at hand. 2. The counsel for the applicant alleged that the RP has erroneously and without application of mind, partially rejected the claim of the applicant on the unsubstantiated and unreasoned ground, as recorded in the minutes of the 6th CoC meeting, that the claim of the Applicant is disputed without taking into consideration the following set of facts and circumstances: i. That between September, 2014 to November, 2015, the Applicant provided financial help to the Corporate Debtor of Rs.10,00,00,000/- at the rate of 24% ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to this email and the dispute was deemed to be resolved. vi. The counsel for the applicant further mentioned that there were cheques provided to the applicant by the Corporate Debtor in respect of Clause 1(I) of the Consent Terms which were dishonoured with the remarks "Funds Insufficient" and a legal notice was issued by the applicant on 23.10.2018. The Counsel for the Corporate Debtor replied to the said Notice on 25.10.2018 wherein it enclosed a Demand Draft of Rs. 90,00,000/- and once again requested for a certificate in pursuance of Form 26A (Rule 31ACB). vii. He further submitted that with a bona fide intent to close the TDS dispute, the Applicant agreed to issue Form 26A Certificate (Rule 31ACB) and asked the Corporate Debtor to release the balance amount of Rs.10,00,000/- of the first instalment immediately after receipt of this communication. But despite this, the Corporate Debtor failed to comply and blatantly breached the Consent Terms. The counsel for the applicant therefore, stated that the Consent Terms stand breached and the Applicant is reinstated in the original position thereby being entitled to claim the interest in terms of the original Agreement @24% per a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seless and devoid of merits and has submitted that he has acted according to the provisions of the Code. He submitted that the RP has rejected the claim of the applicant after due verification of documents submitted by the applicant along with its proof of claim (Form C) as well as books of accounts of the Corporate Debtor. He submitted that the RP has conducted the CIRP in a transparent and fair manner. 7. He further stated that Mr. S Gopalkrishnan was appointed as the IRP vide an order dated 20.11.2018 of this Tribunal. Later on, he received around 76 claims from various persons claiming to be financial creditors of the Corporate Debtor and upon receiving the claims and the documents filed along therewith, the IRP was pleased to accept or reject claims. He further mentioned that as per the list of claims of Financial Creditors as on 07.12.2018, the IRP accepted applicant's claim amount to the tune of Rs. 1,00,00,000/- as against the applicant's total claim of Rs. 6,52,95,183/-. 8. The present applicant was subsequently appointed as the RP in the 1st CoC meeting held on 14.12.2018 and later this Tribunal sanctioned this appointment vide an order dated 23.01.2019. 9. He further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings for the breach of Consent Terms and undertaking given to the Hon'ble Tribunal, as the case may be. 13. The Senior Counsel for the RP further alleged that pursuant to the Consent Terms, the Corporate Debtor had paid principal amount of Rs. 10,00,00,000/- through pay order bearing no. 782581 dated 30.06.2018 drawn on HDFC Bank Ltd. and this fact is not disputed by the applicant. He alleged that this is a preferential transaction as per Section 43 of the Code and the same can be avoided. 14. The Senior Counsel for the RP stated that the Corporate Debtor had agreed to make payment of Rs. 2,00,00,000/- towards full and final settlement of interest liability within 180 days in three instalments in the following manner [Clause 1(g) of the Consent terms]: i. Rs. 1,00,00,000/- less applicable TDS, on or before 18.10.2018: this payment was made by the Corporate Debtor at the rate of 10% i.e. net amount of Rs. 90,00,000/- through Demand Draft bearing No. 148369 dated 24.10.2018 drawn on HDFC Bank which was encashed by the Applicant and this fact has been admitted by the applicant at para 14(k) pg.30 of its application as well as at the letter marked as Annexure A-22 to the application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant in the said 15 flats of the Corporate Debtor. 18. Making the above submissions, the Senior Counsel for the RP prayed for the dismissal of this application on the following grounds: i. that the applicant's claim is unreasonable, baseless and hence, inadmissible in the light of the Consent Terms dated 19.07.2018 and the payments made by the Corporate Debtor in pursuance of the Consent Terms; ii. That the applicant is attempting to unjustly enrich himself by claiming higher amount that which is actually outstanding and is trying to go beyond what was agreed between the parties as mentioned in the consent terms. iii. That the amounts received by the applicant amount to preferential transactions as per Section 43 of the Code; viii. That the allegations levelled against the RP are baseless and suffer from want of merit as he has acted according to the provisions of law and in complete fairness. FINDINGS 19. We have heard all both the parties, perused and taken all the documents submitted by them into consideration. After going through the pleadings, we believe that the RP has rightfully partially accepted the applicant's claim after due consideration of the documents provi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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