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TMI Blog2022 (10) TMI 639X X X X Extracts X X X X X X X X Extracts X X X X ..... rate Debtor. The disbursement against time value of money is against M/s. ABW Infrastructure Ltd. and not against the Corporate Debtor. The aforesaid ruling of the Hon'ble NCLAT is squarely applicable on the facts of the present case - the Applicants are not the Financial Creditors to the Respondent and therefore, have failed to make out a prima-facie case for maintainability of the application file under Section 7 of IBC, 2016/issuance of notice - Application dismissed. - (IB)-384(ND)/2022 - - - Dated:- 3-10-2022 - Bachu Venkat Balaram Das , Member ( J ) And L. N. Gupta , Member ( T ) For the Appellant : Prateek Kushwaha and Parthik Choudhary , Advs For the Respondents : Jyoti Taneja , Adv. ORDER L. N. Gupta , Member ( T ) 1. M/s. Agarwal Agencies (P) Limited Others claiming to be the Financial Creditors have jointly filed the present Application under Section 7 of the Insolvency Bankruptcy Code, 2016 read with Rule 4 of the Insolvency Bankruptcy (Application to Adjudicating Authority) Rules, 2016 seeking initiation of Corporate Insolvency Resolution Process against M/s. Seriatim Land and Housing Private Limited, the Respondent. 2. The Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted a Memorandum of Understanding (MOU), in which the Developer allotted units for commercial purpose to the Applicants after receiving the full consideration amount and also agreed to pay monthly 'Assured Investment Return' to the Applicants till the proposed Retail and Office space is leased out. The Developer assured to give the possession of the units within 24 months from the date of execution of MoU. 6.2. The Developer paid the assured monthly investment returns till May 2015, thereafter, failed to make payments to the Applicants. Hence, the Applicants approached the District Magistrate, Gurugram under the Haryana Protection of Interest of Depositors in Financial Establishment Act, 2013, whereafter the District Magistrate passed three orders dated 12.12.2018 against the Developer, Corporate Debtor, its Directors, Representative and other officials and issued a Certificate of Recovery in favour of the Applicants towards recovery of the Assured monthly Investment along with interest. 6.3. The Developer Company i.e., M/s. ABW Infrastructure Limited has already gone into CIRP vide order dated 12.09.2019 of the NCLT Delhi, in which the present Applicants have already ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nds that the order passed by the District Magistrate is in fact is an order of attachment. In support of its submission, the Respondent has relied upon Section 4 of the Haryana Protection of Interest of Depositors in Financial Establishment Act, 2013, which reads as follows: 4. Attachment of properties on default of return of deposit. (1) Notwithstanding anything contained in any other law for the time Attachment of properties on default of return of deposit being in force: (i) Where upon complaint received from the depositor or otherwise, the District Magistrate is satisfied that any financial establishments have failed- (a) to return the deposit after maturity or on demand by the depositor; or (b) to pay interest or other assured benefit: or (c) to provide the service promised against such deposit; or (ii) where the District Magistrate has reason to believe that any financial establishment is acting in a calculated manner detrimental to the interests of the depositor, with intention to defraud them and if the District Magistrate is satisfied that such financial establishment is not likely to return the deposits or make payment of interest or oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ors. Vs Dove Infrastructure Pvt. Ltd. 8. We have perused the pleadings, written submissions and heard the arguments made by the Counsels appearing for both the parties. Admittedly, the MOU was executed between the Developer M/s. ABW Infrastructure Limited and the Applicants. We find that the Respondent herein was neither a party nor anyway connected to the said MOU, annexed as Annexure A-5, Annexure A-6 and Annexure A-7 to the Application. Further, the Applicants have failed to place or produce any document on record to substantiate that the money in question was paid to Respondent herein. 9. At this stage, we visit the order dated 09.06.2022 passed by the Court III of this Tribunal in IB-381/ND/2022 in the matter of M/s. Aggarwal Agencies (P) Ltd. Ors Vs M/s. Dove Infrastructure (P) Ltd., which is reproduced below: We have heard the submissions made by the Counsels appearing for both sides and perused the records. Admittedly, the Memorandum of Undertaking was executed between M/s. ABW Infrastructure Limited and the present Application and the respondent was in no way connected to the MOU. There is no evidence on record to show that the money in question was in fact ..... X X X X Extracts X X X X X X X X Extracts X X X X
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