9911796707
TMI Blog2024 (5) TMI 852X X X X Extracts X X X X X X X X Extracts X X X X ..... n paid to them by the vendor. In such circumstances, it is not a case which would fall within the provisions of the Code to trigger CIRP, invoking Section 7 of the Code and therefore, the Tribunal has rightly dismissed the application, however, liberty has been granted to the Appellants to pursue his other remedy for the purpose of recovery. It would also be not out of place to mention that the regime of the Code is not for recovery but for the resolution of debt by maximisation of the asset and to bring the CD on its own feet. Therefore, not only Respondent was dragged in the litigation at the instance of the Appellants before the Tribunal but also in this appeal in which no case is made out at all. The present appeal is hereby dismissed. - [ Justice Rakesh Kumar Jain ] Member ( Judicial ) And [ Mr. Indevar Pandey ] Member ( Technical ) For the Appellants : Mr. Alok Tripathi, Adv For the Respondent : Mr. Abhishek Anand, Ms. Komal, Adv ORDER Per : Justice Rakesh Kumar Jain: M/s Ambika Enclave Pvt. Ltd., M/s Siddhant Diagnostic Pvt. Ltd. and M/s Divya Tie-Up Pvt. Ltd. (Financial Creditors) filed an application under Section 7 of the Insolvency and Bankruptcy Code, 2016 (in short C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal has erred in dismissing the application. In this regard, he has referred to the findings recorded by the Tribunal which read as under:- 15. We have considered the submissions made by both sides and perused material on record. At the very outset, it is noted that the amount of loan has been disbursed to Sparkspell Homes Pvt. Ltd which was earlier known as Proplarity Home Pvt. Ltd. (PHPL). In this arrangement, the respondent herein is neither a party in any capacity nor any reference to the respondent appears therein. Thus, based on such loan agreement, it can safely be concluded that this arrangement does not establish privity of contract between the Financial Creditors and respondent herein. The role of respondent, herein, arises only in terms of sale deed dated 1st May, 2017, where the vendor being receiver of loan from the Financial Creditors, entered into sale agreement with the respondent and wherein Financial Creditors are a confirming party. 16. We have carefully perused the terms and conditions of Clause 35 also and we have got no hesitation in holding that even on this basis, no legal obligation can be said to have arisen on the part of the respondent to repay the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rejected. 20. Accordingly, CP (IB) No.32/ALD/2021 shall stand dismissed. We also make it clear that such dismissal of application is circumscribed by the provision of law as prescribed in 18C, 2016. Therefore, any appropriate action for recovery of the said impugned sum can be taken by the applicants herein, in accordance with any other law, if so advised. 6. On the other hand, Counsel for Respondent has submitted that the application filed under Section 7 was not maintainable against Respondent because there was no privity of contract between the parties. As per Appellants, the loan was advanced by it to PHPL. It is further submitted that since PHPL was unable to pay the debts to the Appellants, therefore, it decided to sell part of the project, namely, Pratham to Respondent and the consideration of amount of the sale was agreed to be paid to the Appellants and not to PHPL. It is submitted that the allegation of the Appellants is that the said money has not been paid by Respondent to the Appellants whereas, according to Respondent, the money was received which is so recorded in clause 35 of the sale deed. He has also submitted that for the purpose of establishing a relationship of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is due from any person and this expression has also been given an extended meaning to include a financial debt and an operational debt . 7. He has further submitted that the findings recorded by the Tribunal in paras 15 to 20 does not call for any interference because, firstly, there is no privity of contract, secondly, there was no disbursal of loan to Respondent and thirdly, clause 35 of the sale deed categorically says that the sale consideration was paid by Respondent. It is thus submitted that it was for the vendor to have paid the money to the Appellants. It is also submitted that the Tribunal has also protected the rights of the Appellant by observing in para 20 of the impugned order that the Appellants may pursue any other remedy for recovery of the amount which is stated to have not been paid by PHPL by resorting to its remedy in accordance with law but for invoking the provisions of the Code. 8. We have heard Counsel for the parties and perused the record with their able assistance. 9. It is not in dispute that the Appellants had advanced the loan to PHPL and not to Respondent. There is no privity of contract between the parties. PHPL failed to return the money taken as l ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
