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TMI Blog2024 (12) TMI 884X X X X Extracts X X X X X X X X Extracts X X X X ..... of action cannot remain arrested or suspended till the Financial Creditor exercise its option under Clause 6. Limitation for filing the proceeding for claiming refund of investment long expired after three years from 16.12.2010 i.e., in 15.12.2013 itself. Long silence of the Financial Creditor after 16.12.2010 till filing of Police Complaint by Corporate Debtor itself speaks volumes of the ground realities and State of Affairs between the Parties. We, thus are satisfied that Application filed by the Financial Creditor was hopelessly barred by time and deserves to be rejected. Adjudicating Authority had only adverted to the one part of the submission of the Appellant that on commencement of limitation from 30.07.2019, the Application was barred by time, without adverting to and finding out as to when the cause of action arose for filing the Section 7 Application to the Financial Creditor. As and above the cause of action for filing the Application arose on 16.12.2010 and Section 7 Application which was filed by the Financial Creditor was hopelessly barred by time. In the present case, the Project did not commence within 6 months and 1 month grace period, which was provided in the M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Investors. Whether sufficient grounds have been made out to invoke Section 65 of the IBC for imposing any penalty on the Financial Creditor? - HELD THAT:- On looking into the Reply which was filed by the Corporate Debtor to Section 7 Application, although it was pleaded that there is a collusion between Financial Creditor and Thakkars and they have colluded with each other with mala fide intention to cheat the Corporate Debtor, but there are no averment that Section 7 Application has been filed fraudulently or with malicious intent. In the facts of the present case, especially when Corporate Debtor has not pleaded that proceedings have been initiated maliciously with fraudulent intent, the ingredients of Section 65 are not fulfilled, hence Notice under Section 65 is discharged. The detail facts and opinion given by the IRP were wholly uncalled for IRP who is giving a certificate on 15.07.2022 is not supposed to know the events and facts which transpired between the Parties from 16.05.2010. Learned Counsel for the IRP submits that in view of the `Form 2 requiring Optional Certificate, the IRP has given the Option Certificate and there was no mala fide intention of the IRP or an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 2 entire floors, namely, 18th and 19th floor in the new building. Thakkars were liable to get investment of ₹6 Crores which shall be paid to the Developer. ₹50 lakhs was investment paid by Thakkars and the amount of ₹6.5 Crores was supposed to be used by Developer to pay the Owners and Confirming Parties, the respective shares of ₹3 Crores and ₹3.5 Crores. v. The AoU further noticed that Thakkars did not have requisite initial investment, hence it was agreed that they can obtain the same from Investors i.e., Respondents No. 1 to 3 to the Appeal. vi. Thakkars entered into Articles of Agreement (AoA) on the same day dated 16.05.2010 with Respondents No. 1 to 3, the Investors which contemplated the Developer was Confirming Party. vii. The AoA contemplated that Vendors i.e., Thakkars could be liable to get initial investment of ₹6 Crores and in lieu of payment of ₹6Crores, Investor shall be entitled for allotment of 18th floor out of 2 floors of the Vendors. The amount of ₹6 Crores was to be paid by Investors on behalf of the Vendors to the Developers. viii. The Developers were to utilise the amount as per the MoU. It was further agreed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that amount of ₹1.3 Crores was paid to the Respondent and rest of ₹1.7 Crores was paid to the Thakkars, last trench of payment was made to the Thakkars on 06.04.2014. xv. It was further pleaded that any claim of the Respondents No. 1 to 3 is not due on the Corporate Debtor and claim if any may be against Thakkars only. It was also stated that Thakkars and Respondents No. 1 to 3 are in connivance. xvi. On 20.09.2019 again Reply was sent on behalf of the Respondents No. 1 to 3 to the Interim Reply dated 08.08.2019 and Reply dated 16.08.2019. The Respondents No. 1 to 3 issued a Demand Notice dated 05.04.2022 demanding an amount of ₹7,16,19,262/-. xvii. After sending the Demand Notice there were further correspondence between the Parties. Respondents No. 1 to 3 filed an Application under Section 7 against the Corporate Debtor, claiming an amount of ₹7,28,09,697/-. Date of Default in Part IV is mentioned as 30.07.2019. In Section 7 Application, Notice was issued to the Corporate Debtor. Corporate Debtor filed its Reply dated 06.12.2022. A Rejoinder and Sur-Rejoinder was also filed. Adjudicating Authority after hearing the Parties, admitted Section 7 Application. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts. It is submitted that this Application under Section 7 was filed by the investors, Financial Creditors on 11.08.2022. Reply was filed where apart from other pleas, plea of limitation was taken that Application was barred by time. 3. Adjudicating Authority has proceeded to admit the Application by the impugned order and has repelled the argument pertaining to limitation in paragraph 7.4, which is to the following effect:- 7.4. On the issue of limitation, this bench finds that date of default is stated as 30.07.2019. Accordingly, the period of three years expires on 29.07.2022. The financial creditor has relied upon the decision in the case of GPR Power Solutions (P) Ltd vs Supriyo Chaudhuri 2021 SCC Online SC 1328 wherein the Hon'ble Supreme Court held that in computing limitation for any application, the period from 22.03.2020 till 14.03.2021 is to be excluded. However, in this case the application was filed between these dates and accordingly the period of 90 days was allowed from after 14.03.2021 to determine the period of limitation. This bench has held in the case of Piramal Capital Housing Finance Limited Vs. Manpreet Developers Private Limited in CP.IB.700/2022 vide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case and certified certain facts in his letter. We find that the said conduct of the IRP is wholly inappropriate. While giving the consent, IRP is not supposed to know the facts or give his own comments. 10. Let notice be issued to CA Ashish Kanodia who is permitted to be impleaded as Respondent No.5 to the Appeal. Shri Virender Ganda, Learned Senior Counsel appears and has made submission on behalf of Respondent Nos.1 to 3. Let amended memo be filed within three days. 11. Let Notice be issued to Respondent No.4 through Speed Post . Let the requisites together with process fee be filed within three days from today. The Appellant is required to provide the e-mail address of the Respondent No.4 and in that mode also, the service can be effected. The Appellant is also required to furnish the Mobile No. of the Respondent No.4 to the Office of the Registry . 12. Let Reply be filed within three weeks. Rejoinder, if any, may be filed within two weeks thereafter. 13. In the facts of the present case, we also put notice to the Respondent Nos.1 to 3 to give a reply as to why they be not proceeded under Section 65 of the IBC Code. 14. List the Appeal on 20.09.2023. In the meantime, the im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... race period of 1 month shall be provided. The Investors shall have an option to terminate the Agreement and the Developer was to return ₹3 Crores with interest. It is submitted that cause of action arose to the Investors after 7 months and they having admitted payment of ₹1.3 Crores in their letter by 15.10.2011. The cause of action arose to in 2011 itself when according to the Financial Creditor balance amount was not paid. The filing of the Application Section 7 Application in the year 2022 is nothing but abuse of process of Court and has been mala fidely and fraudulently initiated for purposes other than resolution of Corporate Debtor. Adjudicating Authority committed an error in holding the Application within time. The date of default mentioned in Section 7 Application, i.e., 30.07.2019 cannot be date of default nor date of default can depend on the sweet will of the Investor as to when they decide to ask for balance payment as claimed by them. Cause of action arose to the Investors to take steps for refund of their amount after 7 months from execution of the AoA and in any event by 15.10.2011, where amount of only ₹1.3 Crores was received. In any view of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Developers arose only on 30.07.2019 and a Section 7 Application which was filed on 11.08.2022 was well within time. Learned Counsel for the Respondent has also referred to the Judgment of the Hon ble Supreme Court in the matter of `RE: COGNIZANCE FOR EXTENSION OF LIMITATION reported in Suo Moto Writ Petition (Civil) No. 03/2020. It is submitted that there is no whisper of malicious prosecution by the Respondents No. 1 to 3 before the Adjudicating Authority and no case under Section 65 was taken by the Corporate Debtor. Answering Respondent are the victim, hence the Adjudicating Authority rightly admitted Section 7 Application. 7. Learned Counsel for the IRP submits that `Form 2 of Insolvency and Bankruptcy (Application to the Adjudicating Authority) Rules, 2016 provides the option to Insolvency Professional to certify the facts averred by the Applicant. He submits that the certification given by the IRP to the facts was in exercise of the said option and it was done bona fide by the IRP and the Notice issued to the IRP may kindly be discharged. 8. From the submissions made by Counsel for the Parties and materials on record, following questions arise for consideration in this Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only) as provided in clause 5 on the Confirming Parties, (who are occupants of various premises in the said property being family members of Mr. Kikabhai Amarchand Dalai)* handing over vacant possession of their premises, in their respective occupation against the Developers entering into separate Agreement, setting out that the terms of payment of the compensation to such individual occupant tenant in lieu of Temporary Alternate Accommodation during the period of redevelopment of the said Property, and then handing over Permanent Alternate Accommodation in the new building, to be constructed in the said Property. (c) Rs.2,90,00,000/- (Rupees Two crores Ninety Lakhs only) as provided in clause 5 hereof on expiry of one year period from the date of handing over vacant possession of the premises by the occupants namely the family members of Mr. Kikabhai Arnarchand Dalai to the Developers as provided herein in Sub-Clause (b) hereinabove. 12. Clause 5 of the MoU detailed the payments of ₹9.4 Crores. Clause 13 provided that Developer shall get the Plan sanctioned within a period of 6 months with a grace period of 1 month. In Clause 13, following is provided: 13. The Developers sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... get initial investment of ₹6 Crores, ₹3 Crores out of which was to be paid by the Developers to the Owners on execution of MoU. Clause 3 is as follows: 03. It is hereby further agreed by the parties that the PARINERS shall be liable to get an initial investment of Rs.600,00,000/- (Rupees Six Crores only), which shall be paid to the Developers by the PARTNERS. On receipt of the said initial investment of Rs.600,00,000/- (Rupees Six Crores only) by the Developers from the PARTNERS in two stages, the Developers shall utilize the same along with the PARTNERS investment of Rs.50,00,000/- (Rupees Fifty Lakhs only) in the following manner in compliance of the said MOU, i.e.: (a) Rs.3,00,00,000/- (Rupees Three Crores only) paid by the Developers to the Owners on the execution of the said MOU. The said amount has been deposited by the Developers with the Owners' Advocates Solicitors, M/s. Pravin Mehta And Mithi CO., and the same shall remain deposited with them and shall be released with interest in terms of the said Memorandum of Understanding. (b) Rs.3,50,00,000/- (Rupees Three Crores Fifty Lakhs only) on the Confirming Parties, (who are occupants of various premises in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Agreement as Vendors) and Manish S. Pardasani, Savinder Singh Lamba and Kulbir Singh Rekhi as Investor, which Agreement notice MoU entered between the Developers and Owners. The Agreement further stipulates that Vendors has facilitated the entire transaction between the Developers and Owners. Agreement further notice as per AoU, Vendors would be liable to get initial investment of ₹6 Crores and Vendors do not have requisite initial investment, hence it per the agreed that same shall be obtained from Investors in lieu of 18th floor. Clause F of the AoA is as follows : F. That vide the said AOU, it was further agreed that the VENDORS would be liable to get an initial investment of Rs.600,00,000/- (Rupees Six Crores only) and since the VENDORS do not have the requisite initial investment, it was agreed by the Developers that the VENDORS can obtain the same from the Investors who will pay the aforesaid sum of Rs.6,00,00,000/- (Rupees Six Crores only) in lieu of allotment of one floor out of the two floors of the VENDORS, i.e. being the entire eighteenth floor {apart from other usable areas on the specified floor (18th floor) or linked to the specified floor (18th floor)) alo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n or failed to enter into Development Agreement with the Owners within 6 months, then a grace period of 1 month shall be provided to the Developers, and in event the Developers failed to entered into Development Agreement, Investors shall have an option to terminate the Agreement and Developer shall return ₹3 Crores with interest of 18%. Clause 6 is as follows: 06. It is hereby agreed that in the event the Developers fail to comply with its obligations and the other terms and conditions of the said MOU and /or fails to enter into the Development Agreement with the Owners within six months from the date of execution of the instant AOA, then a grace period of one-month shall be provided to the Developers. In the event the Developers yet fail to enter into the Development Agreement within the grace period of one month, the Investors shall have an option to terminate the instant Agreement and the Developers shall return the sum of Rs.3,00,00,000/- (Rupees Three Crores only) to the Investors along with interest @ 18 % per annum within 15 days of the Investors making demand of the same in writing to the Developers. 21. Clause 8 again contained an Agreement between the Parties that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted a Police Complaint against the Thakkars on 04.07.2019. The Police Complaint 04.07.2019 triggered Legal Notices and replies between the Corporate Debtor and Investors ultimately leading to filing of Section 7 Application. We thus need to notice the Police Complaint dated 04.07.2019, which was submitted by the Corporate Debtor to the Senior Police Inspector, MIDC Police Station, Andheri East, Mumbai. The copy of Police Complaint 04.07.2019 is part of Section 7 Application. In Police Complaint, the Corporate Debtor has captured the transaction between the Parties. In the Police Complaint, Corporate Debtor has also stated about the different amount paid to Deepak Vinod Thakkar and his Vendors and his Company. It was pleaded that ₹1.3 Crores was directly refunded to Investor and ₹1.7 Crores to Investor through Vendors i.e., Thakkar. Thakkar s endorsement in cheque dated 04.06.2014 was also relied where Thakkar has accepted that amount on the cheque of ₹5 Lakhs dated 04.06.2014 has confirmed the receipt of ₹1.95 Crores which includes ₹1.7 Crores to refund to his friend. In the Police Complaint, Corporate Debtor after noticing the Agreement between the P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not given by Vendors to Investor and hence breaching trust of my and Investors and harming reputation and loss of fund, since Investor is friend of Vendors, they are not complaining to any department, but I want to teach a lesson to Vendors for unjustice to Investors and me. So register the complaint and receive the money and pay to Investor (if any) of their balance and any balance to me out of Rs.25 Lakhs by Strict Interrogation to Vendors. 25. The Police Complaint was filed by the Appellant against the Vendors, alleging breach of trust by the Vendors. Action was prayed to be taken against the Vendors. After receipt of the Police Complaint which was sent to the Financial Creditor also, an Advocate Notice dated 30.07.2019 was sent on behalf of the Financial Creditor to the Corporate Debtor, where the Financial Creditor claimed to have dispersed the amount of ₹3 Crores and pleaded that since January 2011 till October 2011, the Financial Creditor continuously followed with the Developers and Thakkars regarding progress of the Project and the letter also contained admission of receipt of payment of ₹1.3 Crores. In Paragraph 2 (h) (i), following was stated: (h) Our cli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as stated in the Notice by terminating the Agreement: IN THE PREMISE AS AFORESAID, our clients are compelled to terminate the Said AOA, with' immediate effect, and accordingly our clients have instructed us to communicate to you, which we hereby do, that our clients terminate the Said AOA with immediate effect and accordingly calls upon you to refund the Said Initial Investment Amount, along with interest accrued thereon at the rate of 18 % (Eighteen Percent) per annum from 17th May 2010 till actual payment/ or realisation. Our clients have calculated the interest up till 28th July 2019 and have also given credit to you of the amount of Rs.1,30,00,000/- (Rupees One Crore Thirty Lakhs) so paid by you to our client on 15th October 2011. The total amount outstanding as on date along with interest accrued thereon till 28thJuly 2019 aggregates to a sum of Rs.5,96,36,330.39/- (Rupees Five Crores Ninety-Six Lakhs Thirty-Six Thousand Three Hundred Thirty and. Paise Thirty-Nine only), the details of which calculation are more particularly enumerated in Enclosure - I , enclosed hereto. Our client instructs to also place on record that you are also liable for further and future interest o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deserves to be dismissed with cost. It is pertinent to note that it is admitted fact that the termination of the AOA by the Financial Creditor through their Advocate is by letter bearing No. MMLA/MP/15/2019 and is dated 30th July, 2019. In terms of the clause 47 the said termination of AOA was with immediate effect. The present claim filed by the Financial Creditors is dated 11 th August, 2022. Hence the said termination is not within the prescribe period of the Limitation as stipulated under Limitation Act. Hence the same is barred by the law of limitation. Therefore, the Application deserves to be dismissed and be dismissed in limine with cost. I crave leave to refer to and rely upon the legal position in this regard at the time of argument on this Petition. 20. With reference to para 1(f) of the Part IV, clause 6 of the AOA speaks for itself and anything contrary thereto and to it's true and correct meaning is denied as if set out herein and traversed. It is therefore submitted that on Financial Creditors' own showing the cause of action arose after the expiry of six months of the Articles of Agreement dated 16th May, 2010 i.e. on 16th December, 2010 and therefore even o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of MoU as well as Agreement entered between the Financial Creditor and the Vendors, i.e., Thakkars, i.e., AoU which has been specifically referred to in Clause B and Claus E of the AoA. Thus, each one of the Parties to all the three Agreements were aware of all the terms and conditions Developers obligations were known to Financial Creditor also. In light of the above, we have to look into the Clause 6 and Clause 8 of the AoA for answering the question as to when the cause of action arose. Clause 6 provides that in event the Developers failed to comply with the obligations or failed to enter into Development Agreement within 6 months from the date of execution of AoA, then a grace period of 1 month will be provided and in event developers failed to enter into Development Agreement within the grace period, Investor shall have an option to terminate the Agreement and Developers will return amount of ₹3 Crores. The case of the Financial Creditor is that the option to terminate was exercise only on 30.07.2019, hence limitation will commence on 30.07 2019. 32. When we look into the Clause 8 of the AoA, which Clause also contain following statement in the event the said project ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hin seven months from execution of Agreement, the Plan having not been sanctioned within a period of 6 months and grace period of one month from 16.05.2010, the Project never commenced and under Clause 8, the cause of action arose to Financial Creditor to claim refund of the said investment and the said cause of action cannot remain arrested or suspended till the Financial Creditor exercise its option under Clause 6. Limitation for filing the proceeding for claiming refund of investment long expired after three years from 16.12.2010 i.e., in 15.12.2013 itself. 35. Long silence of the Financial Creditor after 16.12.2010 till filing of Police Complaint by Corporate Debtor itself speaks volumes of the ground realities and State of Affairs between the Parties. We, thus are satisfied that Application filed by the Financial Creditor was hopelessly barred by time and deserves to be rejected. Adjudicating Authority had only adverted to the one part of the submission of the Appellant that on commencement of limitation from 30.07.2019, the Application was barred by time, without adverting to and finding out as to when the cause of action arose for filing the Section 7 Application to the Fina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant in terms of the payment of higher taxes and water charges to the municipal authority. This continuous failure to obtain an occupancy certificate is a breach of the obligations imposed on the respondent under the MOFA and amounts to a continuing wrong. The appellants therefore, are entitled to damages arising out of this continuing wrong and their complaint is not barred by limitation. 37. Above Judgment of the Hon ble Supreme Court was on its own facts and has no Application in the present case. In the present case, the Project did not commence within 6 months and 1 month grace period, which was provided in the MoU when Project did not commence, cause of action arose to the Financial Creditor as per Clause 8 of AoA noted above. Hence the submission of the Respondent that there being continuous obligation, limitation will not commence cannot be accepted. Question No. II 38. The refund of ₹1.3 Crores vide cheque dated 10.10.2010, which was encased on 04th November is an admitted fact. We may refer to Part IV of the Section 7 Application filed by the Financial Creditor, where in Part IV sub- Clause (k) following was pleaded: (k) In the circumstances as aforesaid, the afo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Bank Transfer in favour of Thakkar's or their Companies Amount (In Rs.) 1. 19.05.2010 Mr. Deepak Thakkar 30,00,000/- 2. 19.05.2010 Vision Corporation 40,00,000/- 3. 07.01.2011 Mr. Deepak Thakkar 30,00,000/- 4. 26.08.2011 Vision Infraventures Pvt. Ltd. 20,00,000/- 5. 01.01.2012 Vision Infraventures Pvt. Ltd. 50,00,000/- 6. 11.07.2013 Vision Infraventures Pvt. Ltd. 20,00,000/- 7. 06.04.2014 Vision Infraventures Pvt. Ltd. 5,00,000/- Total Rs. 1,95,00,000/- 41. Out of ₹1.95 Crores as mentioned in above sub-Clause amount of ₹25 Lakhs was towards the development, hence the disbursement of ₹1.7 Crores was towards the refund of amount to the Financial Creditor, which is again pleaded in Paragraph 7(o) of the Appeal, which is to be following effect: (o) In light of the above disbursed amounts, the Thakkars, on the last cheque payment of Rs. 5,00,000/- on 06.04.2014, gave a receiving dated 02.06.2014 stating that I confirm receipt of Rs. 1.95 Crores, includes 1.70 Crore. final refund to my friend balance for Approval , meaning thereby that the out of the Rs. 1.95 Crores disbursed to the Thakkars by the Corporate Debtor, Rs. 1.70 Crores shall be used by him to refund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹1.70 Crores has also been paid by the Corporate Debtor as per the directions of Financial Creditor to Deepak Vinod Thakkar and Vision Infraventures Private Limited. Para 12 of the Reply is as follows: 12. Without prejudice to what is stated herein above, I submit that the Financial Creditors are guilty of suppressio veri and suggestio falsi. The Financial Creditors have themselves not advanced any amount to Atul Projects India Private Limited, and the Financial Creditors are put to the strict proof thereof. It is Mumbai Wines Traders Private Limited and who had somewhere in or about 16th May, 2010 paid to Atul Projects India Pvt. Ltd., a sum of Rs.3,00,00,000/-. Out of the said Rs.3,00,00,000/- Atul Projects India Private Limited, refunded an amount of Rs.1,30,00,000/- to Mumbai Wines Traders Private Limited somewhere in or about 15thOctober, 2011. The said amount of Rs.1,30,00,000/- was refunded by Atul Projects India Private Limited. Hereto annexed and marked Exhibit - 1 is the copy of Bank Statement of Account of Citi Bank, showing payment of amount of Rs.1,30,00,000/- in favour of Mumbai Wines Traders Private Limited. Therefore, without prejudice to the right and content ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pak Vinod Thakkar, where he confirmed the receipt of ₹1.95 Crores which include ₹170 Crores for refund. Counsel for the Financial Creditor has disputed that said endorsement was never made by Deepak Vinod Thakkar and the endorsement was fabricated. Again, it is not necessary for us to return any finding as to whether Deepak Vinod Thakkar has given endorsement on cheque dated 04.06.2014 or not. It is sufficient to note that the amount of cheque payment in favour of Deepak Vinod Thakkar and Vision Infraventure Private Limited, Company of the Thakkar is reflected from the record. There is no plea from any of the Parties that the said amount of ₹170 Crores paid by Corporate Debtor to Deepak Vinod Thakkar and his Company were towards any other obligations. Partners/Vendors/Thakkars, who have brought the investment from Financial Creditors, which was paid to the Developers, and the investment was brought on behalf of the Partners to the Developers. Refund of any amount to the Partners for payment for refund to the Financial Creditor cannot be said to be against the terms and conditions of the Agreement. In any view of the matter, the amount of ₹170 Crores which we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eight years speaks for itself. The Financial Creditor initiated the proceedings by filing Section 7 Application only after Police Complaint was filed by the Corporate Debtor on 04.07.2019, making allegations against Thakkars. Financial Creditor found an opportunity to launch a proceeding after the receipt of the Police Complaint dated 04.07.2019. We, thus are satisfied that Corporate Debtor had refunded the amount of ₹1.7 Crore to Thakkars and their Company, which was meant for refund to the Investors towards their amount of ₹3 Crores. 48. Silence of Financial Creditor for long 8 years of not writing even letter to Corporate Debtor or Vendors/Thakkars clearly indicates that refund of ₹3 Crores was satisfied. We, thus hold that Developers have refunded the amount of ₹1.7 Crores through Thakkars and its Companies for payment to Investors. Question No. III 49. We had also issued Notice to the Financial Creditor to show cause as to why they not be proceeded under Section 65 of the IBC Code. Learned Counsel for the Respondent submits that Corporate Debtor in the Reply of Section 7 has not raised any plea with regard to Section 65 nor has been filed any Applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t application are true, accurate and complete and a default has occurred in respect of the relevant corporate debtor. I have reached this conclusion based on the following facts and / or opinion:- That, the Corporate Debtor approached the Financial Creditors that the Corporate Debtor was redeveloping a project ( Said Project ) wherein the property being all that piece and portion of Land admeasuring 576.93 square meters registered in the books of the Collector of Land Revenue under Old No. 52, New 1C/455, Old Survey No. 763 Malabar and Cumbala Hill Division and in the books of the ,Collector of Municipal Rates and Taxes under D Ward No. 3521(2) and former Street No. 37A and present Street No. 61B ( Said Property ) will be redeveloped and accordingly, the Corporate Debtor entered into a Memorandum of Understanding ( Said MOU ) dated 16th May 2010 with the Owners of the Said Property. Further, the Corporate Debtor represented to the Financial Creditors that one Mr. Deepak Thakcal. and Mr. Prasan Thakkar ( Vendors ) were interested in jointly redeveloping the Said Property and accordingly have entered into an Article of Understanding ( Said AOU ) with Vendors for the purpose of jointl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ebtors not to terminate the Said AOA and remain invested in the Said Project by paying a sum of Rs.1,30,00,000/- (Rupees One Crore Thirty Lakhs only) vide Cheque bearing No. 837304 towards interest on the amount invested by the Financial Creditors which cheque was en-cashed on 04` November 2011. That, since the payment of Rs.1,30,00,000/- (Rupees One Crore and Thirty Lakhs only); the Financial Creditors have been continuously and regularly calling upon either the Corporate Debtor or the Vendors as to the further progress of the Said Project including obtaining IOD and CC; however, time and again Corporate Debtor has been only expressing the various hurdles faced in complying with the obligations under the Said MOU. Subsequently, the Corporate Debtor vide the Letter dated 04th July 2019 addressed to the Senior Police Inspector of MIDC Police Station preferred an Application to register a Complaint against the Vendors for siphoning of money. The aforementioned Complaint enumerates various dealings by and between the Corporate Debtor and the Vendors to which the Financial Creditors are neither a party nor concerned with the same. The Corporate Debtor has vide the aforementioned Compla ..... X X X X Extracts X X X X X X X X Extracts X X X X
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