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TMI Blog2023 (4) TMI 218X X X X Extracts X X X X X X X X Extracts X X X X ..... ced any legal proceedings after the e-mail dated 30th January, 2015 except for the present insolvency application, which was filed almost 2 years after the said e-mail. All these circumstances go to show that it is right to have the matter tried out in the present case before the axe falls. There is a clear admittance of operational debt which was due and payable on the part of the Corporate Debtor and that the operational debt was beyond the threshold limit of Rs.1 lakh. Further, it is pertinent to add here that the Corporate Debtor has admitted that not only was the Operational Creditor entitled to receive payment, but the payment claimed was made in terms of the MoU and invoices were annexed with the claim. It is also unequivocally clear that even on the date of filing of reply to the Section 9 application by the Corporate Debtor, by their own admission, the operational debt which had become due and payable remained unpaid. Therefore the logical corollary is that default had been committed qua the operational debt owed to the Operational Creditor. There are force in the contention of the Appellant that the Adjudicating Authority has committed gross error in ignoring the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of Corporate Insolvency Resolution Process ( CIRP in short) against Corporate Debtor-M/s. Ansal Housing Limited (the present Respondent). Aggrieved by the impugned order, the present appeal has been preferred by the Operational Creditor. 2. The brief facts of the case necessary to notice for deciding the appeal are as follows: - The Respondent/Corporate Debtor was in the business of real estate selling plots and apartments. For this purpose, it entered into a Memorandum of Understanding ( MoU in short), with the Appellant/Operational Creditor engaging them as the exclusive real estate agent for brokering the sale/purchase of units of the residential project - Ansal Town, Meerut for the period 10.07.2018 to 31.12.2018. The Operational Creditor raised invoices from time to time for real estate brokering commission. However, the Corporate Debtor stopped making payments for invoices raised by the Operational Creditor w.e.f. 10.10.2018. The Operational Creditor sent a Demand Notice under Section 8 of IBC on 27.03.2019 claiming an amount of Rs.14,70,943.90 only. The Corporate Debtor sent a reply to the Demand Notice on 09.04.2019 stating that the demands/claims made b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned Counsel for the Appellant strongly contended that since the Corporate Debtor have themselves admitted that two separate cheques aggregating Rs. 12,72,741.74 was drawn by them in favour of the Operational Creditor towards settlement of outstanding dues clearly substantiates admission of debt. Further submitting that the Appellant is a registered MSME, the Appellant has claimed entitlement of interest @ 13% per annum and that the total outstanding amount including interest due is Rs.27,70,574/- only as on 16.09.2022. 5. The Appellant further submitted that they had changed their name from Redbrics ITES India Pvt. Ltd. to Clicbrics Technologies Pvt. Ltd. w.e.f. 12.10.2021 and that the certificate of incorporation was issue by the Registrar of Companies. The registered office had also changed from Delhi to Gurgaon, Haryana and the MCA master data has also been updated accordingly. 6. Learned Counsel for the Appellant also adverted attention to the judgment of the Hon ble Supreme Court in Vidarbha Industries Power Limited v. Axis Bank Limited (2022) 8 SCC 352 wherein it has been held that if dues are admitted as against the Operational Creditor, the Corporate Debtor must pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ddress. It has been contended therefore that the Corporate Debtor was ready and willing to pay the legitimate amount to the Operational Creditor but the Operational Creditor was not ready to accept the same as it wanted to extort money and intimidate the Corporate Debtor. The Respondent has therefore claimed that the Appellant by its conduct and admission has made the entire process of IBC as a substitute to debt recovery which is against the spirit of IBC. Adding further that the Appellant has been coercing the Corporate Debtor to succumb to its demand, even though it is not in default, it has been contended by the Learned Counsel for the Respondent that the reason for filing the Section 8 application by the Operational Creditor was for an ulterior motive other than the resolution of insolvency. Since the provisions of IBC have been fraudulently invoked with malicious intent, it was stated that the Section 9 application filed by the Operational Creditor has been correctly dismissed by the Adjudicating Authority. 9. We have duly considered the arguments and submissions advanced by the Learned Counsel for the parties and perused the records carefully. 10. The only point for ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er by the Adjudicating Authority that the Corporate Debtor had admitted that an amount of Rs.4,32,668.74 was due and payable to the Operational Creditor as on the date of filing their reply to the Section 9 application. 12. More significantly, the Corporate Debtor has also admitted in para 4 of their application under Rule 11 of NCLT Rules, 2016 filed before the Adjudicating Authority in CA-2774(PB)/2019 that the Operational Creditor was entitled for receiving payment of Rs.4,32,668.74 only and that for making payment of the said amount, a cheque dated 14.11.2019 was despatched to the Operational Creditor. The same is placed on record at page 213 of APB and the relevant excerpts are as extracted below:- That as per the terms, against all the bookings for which the Applicant raised the invoices and are annexed with the petition, the Applicant was entitled for payment of an amount of Rs.4,32,668.74/- (Rupees Four Lacs Thirty Two Thousand Six Hundred Sixty Eight and Seventy Four paisa only) which was duly paid by the Respondent to the Applicant vide cheque bearing number 065006 dated 14.11.2019 drawn on Punjab National Bank, New Rajinder Nagar, New delhi 110 060 in favour of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of filing of reply to the Section 9 application by the Corporate Debtor, by their own admission, the operational debt which had become due and payable remained unpaid. Therefore the logical corollary is that default had been committed qua the operational debt owed to the Operational Creditor. 15. The Learned Counsel for the Respondent stoutly contended that in the reply to the demand notice, it was pointed out that brokerage has been demanded even when the Operational Creditor was not entitled to any brokerage. It was asserted that getting payment from allottees was a necessary pre-requisite for becoming entitled to brokerage commission. In several cases, bills were raised prematurely though the requisite percentage of sale value had not been received from the allottees. Hence, it was argued that this is a case of pre-mature initiation of IBC proceedings and reliance has been placed on the judgment of Hon ble Supreme Court in the matter of K. Kishan vs. Vijay Nirman Company Pvt. Ltd. (2018) 17 SCC 662 wherein the use of IBC either prematurely or for extraneous considerations or as a substitute for debt enforcement procedures was deprecated. 16. It is, however, the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reditors and operational creditors, the provisions in the IBC relating to commencement of CIRP at the behest of an Operational Creditor, whose dues are undisputed, are rigid and inflexible. If dues are admitted as against the Operational Creditor, the Corporate Debtor must pay the same. If it does not, CIRP must be commenced. 18. We, therefore, find force in the contention of the Appellant that the Adjudicating Authority has committed gross error in ignoring the fact that the Corporate Debtor has admitted its liability to pay the Appellant for services rendered as a real estate agent. There is also substance in the argument that the Corporate Debtor have themselves admitted that the invoices were in terms of the MoU and issued after the Corporate Debtor had confirmed that consideration amount from the allottees had been received. That being so, we are of the considered view, that the claims of operational debt cannot be viewed to be pre-mature and hence the ratio of K. Kishan supra is inapplicable given the present set of facts. 19. This now brings us to examine the tenability of the findings as recorded by the Adjudicating Authority wherein the Section 9 petition has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase, the second cheque had admittedly not reached the Operational Creditor as was noted by the Postal Department. The Adjudicating Authority has also not recorded in the impugned order that the Respondent had presented any Demand Draft for the debt due and payable to the Appellant in their presence before the Adjudicating Authority. In such circumstances, putting a question mark by the Adjudicating Authority on the intentions of the Operational Creditor has been largely conjectural and lacks foundation. 22. The Learned Counsel for the Respondent has stated that the instant matter is covered by an order passed by this Tribunal in Praveen Kumar Mundra v. CIL Securities Ltd. in Company Appeal (AT) (Insolvency) No.89 of 2019. In that case, the Respondent was ready with a Demand Draft before this Tribunal of the total claimed amount to offer to the Operational Creditor for acceptance. No such ready offer of the full claimed amount was made in the present case either before the Adjudicating Authority or this Tribunal thereby making the facts of the case clearly distinguishable. In subscribing to the line of reasoning as propounded by the Corporate Debtor that the Operational Creditor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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