9911796707
TMI Blog2024 (12) TMI 884X X X X Extracts X X X X X X X X Extracts X X X X ..... admitting a Section 7 Application filed by the Respondents No. 1 to 3 herein. The Appellant, Suspended Director of the Corporate Debtor, Atul Projects India Private Limited, aggrieved by the Order has come up in this Appeal. 2. Brief facts of the case necessary to be noticed for deciding the Appeal are : i. A Memorandum of Understanding (MoU) was entered on 16.05.2010 between the Owners and M/s. Atul Projects India Private Ltd., the Developers for redevelopment of Project on the piece of land admeasuring 576.93 m², Malabar and Cumbula Hill Division Mumbai. ii. Under the MoU, the Developer had proposed to pay amount of Rs.9.40 Crores to Owners and Rs.3.5 Crores to the Confirming Parties, detailed terms and conditions for carrying out the redevelopment and payment as well as details of total 22 floors to be redeveloped was contained in the MoU. iii. Thakkars, namely Deepak Vinod Thakkar and Prashant Vinod Thakkar entered with Articles of Understanding (AoU) with the Developers who desired to jointly redevelop the Project. iv. AoU was also executed on same date 16.05.2023. Under the AoU, Developers were entitled to sell/dispose of 4 entire floors of the new building and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tails of transactions entered between the Developers, Deepak Vinod Thakkar and Prashant Vinod Thakkar. The Complaint mentioned that amount paid to the Investors payments were made to the Owner of Rs.3 Crores. On request of the Investor, amount of 1.3 Crore was returned. xii. It was stated by the Appellant that Investors got their full money refund but Appellant came to know that Investors amount taken from Appellant by Thakkars have not given to Investors. Request was made to register a case against the Vendors who have received the money to pay to Investor and have not paid. xiii. The copy of the Complaint was also forwarded to Respondents No. 1 to 3. Respondents No. 1 to 3 after receiving the complaint sent a Legal Notice dated 30.07.2019 to the Appellant stating that only amount of Rs.1.3 Crores was received by Investors till date and no further amount of Rs.3 Crores have been received and total outstanding as on 28.07.2019 is Rs.5,96,36,330/-. Agreement dated 16.05.2010 was terminated with immediate effect. xiv. A Reply was sent to the said Legal Notice by the Corporate Debtor refuting any liability to pay any amount to the Respondents No. 1 to 3. It is stated that amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Under the agreement, it was decided that the developer will develop the property in joint venture with the Thakkars and Thakkars for raising the investment has agreed with the investors that investors will invest an amount of Rs.6 Crores out of which Rs.3 Crores was advance for development. Agreement further contemplated that in event the development is not carried out within six months from the date of agreement then a grace period of one month shall be provided to the developers and even if developers fail to enter into agreement, investors shall have option to terminate the instant agreement and developers will return the amount with 18% interest. Developers admittedly has returned the amount of Rs.1.3 Crores and according to the case of the Appellant, amount of Rs.1.7 Crores was refunded in the years 2010 to 2014 to Thakkars and one entity as mentioned in the Appeal. It was submitted that the said amount was to be paid to the investors. The case of the Appellant is that after 2011 there was complete silence and when Appellant- Developer came to know that Thakkars have not paid amount to the investors a police complaint was filed on 04.07.2019 giving all the facts. It is submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een given to the investors- Financial Creditors. The Adjudicating Authority in paragraph 7.4, has prima facie misconstrued the judgment of the Hon'ble Supreme Court in Suo Motu Writ Petition. Admittedly, Application under Section 7 was filed on 11.08.2022, hence, present was not a case during which period benefit of limitation under Suo Motu Writ Petition was allowed by the Hon'ble Supreme Court i.e. till 28.02.2022 with 90 days' grace period in filing the Application. We further find substance in the submission of the Appellant that agreement did not proceed any further in 2010 and as per the agreement itself after 6 months + 1 month, cause of action to the Financial Creditor arose to take appropriate action for recovery of their money. It is submitted that cause of action shall not depend on the investors to excise their option after 9 years. 8. We prima facie find that Application filed under Section 7 ought not to have been admitted and case has been made out to issue notice in the Appeal. 9. Learned Counsel for the Appellant pointed out that IRP while giving his written consent to the Adjudicating Authority for acting as IRP in his letter dated 15.07.2022 has given the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction between Developers and Investors. Developers were only a Confirming Party to the AoA. It is submitted that payment of Rs.1.3 Crores to the Investors by Developers is undisputed. The rest of the amount was also paid by the Developers to Thakkars, which payments were made till 2014. It is submitted that at no point of time, the Investors made any demand from the Corporate Debtor of any balance amount. Payments having already been received by Thakkars of the balance amount for payment to the Investors, there was no debt or default on the part of the Developers. It is submitted that when the Developers came to know that amount received from Developers by Vendors, i.e., Thakkars have not been paid to the Investors, a Police Complaint was filed by the Developers himself on 04.07.2019 complaining the acts of Vendors. It is submitted that Investors have filed Section 7 Application whereas neither there was debt nor there was any liability on the Developers. The Application filed by Financial Creditor was barred by time. The AoA dated 16.05.2010 clearly provided that in event the Developers failed to comply with their obligation within 6 months or failed to enter into Development Agre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the said payments cannot be said to be in addition to payment of Rs.1.3 Crores as claimed by the Appellant. The aforesaid payment of Rs.1.7 Crores as claimed by the Appellant were made prior to payment of Rs.1 Crore 30 Lakhs. The Corporate Debtor confirmed and accepted the letter dated 15.10.2011, which mentions payment of only 1.3 Crores, had any other payment was made apart from Rs.1.3 Crores Corporate Debtor in normal course ought to have objected the figure of Rs.1.3 Crores. According to the Police Complaint filed by the Developers allegation is that Thakkars had paid foul with the Corporate Debtor in respect of payment which was made to the Investors. The Appellant cannot be allowed to take any contrary stand that he has discharged the rest of the amount. It is submitted that Corporate Debtor is in continuous obligation, hence the Petition cannot be said to be barred by time. Learned Counsel for Respondents No. 1 to 3 submits that under the AoA, there was option with the Investor to terminate the Agreement and demand the payment with 18% interest which option was exercised by Investor on 30.07.2019, hence the cause of action to take proceeding against the Developers arose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Owners, the Confirming Parties and the Developers, the Corporate Debtor M/s. Atul Projects India Private Limited being Developer. As per Clause 4 of the MoU in consideration of Owners appointing the Developers to redevelop the said property, Developers were to pay to the Owners sum of Rs.9,40,00,000/-. Clause 4 of the MoU is as follows: "4. In consideration of the Owners appointing the Developers to redevelop the said Property, the Developers shall pay to the Owners net sum of Rs.9,40,00,000/- (Rupees Nine crores fifty Forty lakhs only) which shall be paid in the following manner:- (a) Rs.3,00,00,000/ - (Rupees Three crores only) paid by the Developers to the Owners on or before execution of this Memorandum of Understanding (the receipt whereof the Owners do hereby admit and acknowledge). 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 as provided in clause 5 upon the Developers making. the payment of the amount under sub-clause (b) hereinafter provided. (b) Rs.3,50,00,000/- (Rupees Three crores fifty lacs only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ratio as mentioned above 1/3 to 2/3 of Profit & Loss also in the same ratio." 14. The AoU further noted that the Partner shall be entitled sell/dispose of deal with 18th and 19th floor in the new building and Partner has sold 18th floor to Investor. Clause 2 is as follows: "02. It is hereby agreed by and between the parties hereto that after providing the Owners and Confirming Parties permanent alternate accommodation, the Developers shall be entitled to sell/dispose of / deal with at its discretion four entire floors of in the new building of not less than 1350 - 1400 square feet each of carpet area and the PARTNERS shall be entitled to sell/dispose of / deal with at their discretion two entire floors (namely the 19th and the 113')' floors) in the new building of not less than 1350 - 1400 square feet each of carpet area (apart from other usable areas on the specified floors or linked to the specified floors) along with the respective car decks for the respective floors (collectively referred to as "the said Flats"). The above mention 18th & 19th floor is the stairs of PARTNERS from which they have said, mention 18th floor to investor." 15. Clause 3 provided that Part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he aforesaid sum of Rs.6,00,00,000/- (Rupees Six Crores only) in lieu of, eighteenth floor) in the same manner as to be paid hereinabove and in consonance of the said MOU." 17. Clause 6 contained a stipulation that in event Project does not commence Investor shall be entitled to claim back the investment along with 18% p.a., which the Partners have agreed and guaranteed to return. Clause 6 is as follows: "06. It is hereby explicitly agreed and confirmed by and between the parties hereto that the Investors have agreed to invest on the sole condition that under no circumstances the Investors shall be liable and/or exposed to any penalty and/or expenses and/or claim so imposed and/or incurred and/or sustained upon the Developers and/or the PARTNERS by any governmental authorities and/or concerned authorities and /or the Owners and/or the Confirming Parties whether under the said MOU or otherwise. In the event the said Project does not commence, then the Investors shall be entitled to claim back their investment along with 18 % interest per annum which the Partners have agreed and guaranteed to return." 18. The third Agreement which was entered between the Deepak Vinod Thakkar an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perty) handing over vacant possession of their premises, in their respective occupation against the Developers entering into separate Agreement, setting out that the turns 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. 02. It is hereby agreed that the said sum of Rs.600,00,000/- (Rupees Six Crores only) shall be paid by the Investors in the following manner: (a) A sum of Rs.3,00,00,000/- (Rupees Three Crores only) shall be paid by the Investors to the Developers on the execution of the instant AOA; (b) The balance sum of Rs.3,00,00,000/- (Rupees Three Crores only) shall be paid by the Investors to the Developers not latter than six months on the execution of the instant AOA, on simultaneously execution and registration of an Agreement for Sale for sale of the 18th floor as enumerated in clause 3 hereinafter." 20. Now two Clauses which are important for the determination of issue of limitation are Clause 6 and Clause 8. Clause 6 provided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after payment of Rs.3 Crores made by Investors which in turn was deposited with Advocates & Solicitors of the Owners as per the terms and conditions of MoU dated 16.05.2010. The fact of receipt of Rs.3 Crores and deposit by the Developers is not denied. The Parties are also at Agreement that amount of Rs.1.3 Crores was refunded by the Developers to the Investors by a cheque dated 15.10.2011, which was encashed on 04.11.2011. 24. The facts brought on record indicates that Project could not commence, the building Plan was neither approved within 6 months nor any further steps were taken towards redevelopment of the land. The case of the Corporate Debtor was that during the period that Project having not commenced, it was agreed between the Developers and Partners that the amount of Investor shall be refunded and the Developers has made a payment of Rs.1 Crore 70 Lakhs to Deepak Vinod Thakkar and its Company for payment to Investors between 19.05.2010 to 06.04.2014. The admission of receipt of payment of Rs.1.3 Crores is reflected in letter dated 15.10.2011 claimed to be sent by Financial Creditor to Developers, which is part of record. There is no correspondence between the Parties ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... request of Investor I have returned Rs.1.30 Crore out of Rs.3 Crore on dated 10/10/2011. Vendors inform, since investor is his friend, this flat to be treated as cancel and he will pay the amount slowly, due to relation with Investor and market condition. Due to D.C. rule and other issue development was not happening, so again paid Rs. 30 Lakhs to Deepak Thakkar on 07/01/2011 and Rs.20 Lakhs to Vendor's company on 26/08/2011. Still no development. Vendors finally took call to refund full amount to Investor with Investors Confirmation so accordingly, refund to Investor through Vendors Rs.50 Lakhs on 01/06/2012 and Rs.20 Lakhs on 11/07/2013. Lastly paid on Rs.5 Lakhs on 06/04/2014 and confirmation given by Vendors that out of total Rs.1.95 Crore received by him from my company out of that has refunded Rs.1.70 Croce due to Investors and balance Rs.25 Lakhs is used for expenses for development (Legal & Mhada). Same is confirmed by Vendors in receipt of cheque dated 04/06/2014 (enclosed herewith). Still my Rs. 3 Crore money is lying in Escrow with Solicitor and Rs. 25 Lakhs more is use by Vendors or taken for own use. Investor got their full refund. But recently came to kn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l actual payment and/ or realization. That, you pleaded not to terminate the Said AOA and remain invested in the Said Project and further induced our client by paying a sum of Rs.1,30,00,000/- (Rupees One Crore Thirty Lakhs only) to our clients on the understanding that the Said AOA shall be in force and effect and that our clients will be liable to pay the Balance amount as well as a sum of Rs.1,30,00,000/- (Rupees One Crore Thirty Lakhs only) simultaneously on execution of the Agreement for Sale for the Said Flat pursuant to you obtaining the IOD and CC for the Said Project. Our clients instruct that your aforesaid act of returning a sum of Rs.1,30,00,000/- (Rupees One Crore and Thirty Lakhs only) to our clients unambiguously demonstrate that there was a failure on your part to comply with the various terms and conditions of the Said `AOA'. Our - clients instruct that the aforesaid sum of Rs.1,30,00,000/- (Rupees One Crore and Thirty Lakhs only) was returned to our clients vide Cheque bearing No. 837304; which was en-cashed by our client on 04th November 2011." 26. By Notice dated 30.07.2019, the Financial Creditor communicated their decision that they have terminated the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he cause of action arose for the Financial Creditor to claim refund of the amount along with interest after expiry of 7 months from 16.05.2010, the period for filing an Application arose to the Financial Creditor which could not remain suspended on the pretext that Financial Creditor has not exercised their option to terminate the Agreement. On the contrary, the submission of the Financial Creditor is that as per Clause 6 of the AoA, the Financial Creditor had option to terminate the Agreement which option having been exercised only on 30.07.2019, limitation for filing Section 7 Application shall commence on 30.07.2019. In the Reply which was filed by the Corporate Debtor to Section 7 Application, Corporate Debtor has taken the specific plea that Application is barred by limitation. Plea was taken that even if limitation is computed from 30.07.2019, Application filed on 11.08.2022 is barred by time. It was further pleaded that cause of action arose after expiry of 6 months of the AoA i.e., 16.12.2010. We may refer to Paragraph 7 & Paragraph 20 of the Reply, which is as follows: "7. A mere perusal of the Petition will demonstrate that Claim of the Financial Creditor abovenamed is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30. The question to be considered is as to when the cause of action arose to the Financial Creditor to file an Application, claiming refund of its amount along with the interest as per AoA dated 16.05.2019. 31. We have noted relevant causes of MoU, AoU and AoA all dated 16.05.2019. Amounts of Rs.3 Crores to be paid at the time of execution of MoU. Amount of Rs.3 Crores was paid by the Financial Creditor, which amount was deposited before the Advocates & Solicitors of the Owners, as per the receipt and acknowledgement of the amount by Developer is on the record. The MoU clearly provided that Developer were to get the Plan sanctioned within a period of 6 months with a grace period of 1 month. It is undisputed that building plan was never sanctioned. The MoU provided further payment of Rs.3.5 Crores to the Confirming Party. It is an admitted fact that no occasion arose for payment of any subsequent amount by the Investor apart from initial payment of Rs.3 Crores. The project could not commence is an admitted position between the Parties. It is not the case of any of the Parties that Project commenced or any building plan was approved. It is further relevant to notice that AoA of whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are of the clear opinion that the cause of action which accrued to Financial Creditor under Clause 8 is independent from exercise of any option under Clause 6. Under Clause 8, the cause of action arose to the Investor when project did not commence without the Agreement been terminated by the Financial Creditor under Clause 6. Thus, cause of action and running on the limitation under Clause 8 cannot be arrested or controlled by exercise of option by Financial Creditor in Clause 6. 33. There is no material on record to indicate that project has commenced at any point of time even after 6 months of execution of MoU on 16.05.2010. The building plan having been never approved within 6 months, which was period prescribed in MoU for approval of the building sanction of the Plan within period of 6 months with grace period of 1 month. The period of 7 months came to an end on 16.12.2010 itself after expiry of 7 months from execution of the Agreement dated 16.05.2010. Thus, cause of action for filing the Application claiming refund of the investment arose to the Financial Creditor after 16.12.2010 and the same cannot remain suspended as contended by Counsel for the Financial Creditor till 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve case, the Hon'ble Supreme Court has noted the provisions of Section 22 of the Limitation Act, 1963, which provides for computation of limitation in the case of a continuing breach of project of Contract.... Hon'ble Supreme Court held that since there was continuous failure to obtain a occupancy certificate, which was a breach of obligation, hence it was a continuous wrong. Following was laid down in Paragraph 18 : "18 Based on these provisions, it is evident that there was an obligation on the respondent to provide the occupancy certificate and pay for the relevant charges till the certificate has been provided. The respondent has time and again failed to provide the occupancy certificate to the appellant society. For this reason, a complaint was instituted in 1998 by the appellant against the respondent. The NCDRC on 20 August 2014 directed the respondent to obtain the certificate within a period of four months. Further, the NCDRC also imposed a penalty for any the delay in obtaining the occupancy certificate beyond these 4 months. Since 2014 till date, the respondent has failed to provide the occupancy certificate. Owing to the failure of the respondent to obtain the certifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount of investment made by the Investor to the Developers was on behalf of the Partners, i.e., Thakkars. In the above clause of the Agreement between the Parties, the claim of repayment by the Developers to Thakkars need to be looked into. After execution of Agreement dated 16.05.2010 an acknowledgement of amount of Rs.1.3 Crores received by the Financial Creditor vide letter dated 15.10.2011, the first correspondence between the Parties which is on the record before the Police Complaint i.e., 04.07.2019 sent by the Corporate Debtor, in which payment of various amounts to Thakkars and his Company has been mentioned. In the present Appeal, Appellant has also detailed the payments made to Thakkars and its Company, which is contained in pleadings in Paragraph 7(n), which is as follows : "(n) However, due to the prolongation of the family dispute between the Owners, it was decided between the Thakkars and the Corporate Debtor that full amount of Investors (Respondents No. 1 to 3) shall be refunded. Accordingly, the Corporate Debtor refunded all the amounts to the Thakkars to be refunded to the Respondents No. 1 to 3. The total amount disbursed to the Thakkars, to be refunded to Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, which was filed to Section 9 Application by the Corporate Debtor, there was clear and categorical pleading of the refund of the aforesaid amount to the Thakkars and its Companies. In the Reply which was filed by the Corporate Debtor, it was also pleaded that Thakkars and Financial Creditors are friends and they have colluded with each other with mala fide intention to cheat the Corporate Debtor which pleadings are in Paragraph 11 to the following effect: "11. Without Prejudice to what has been stated herein above, it is submitted that Manish Shrichand Pardashani and Deepak Vinod Thakkar / Prasan Vinod Thakkar are school friend from their childhood and Mr. Manish Shrichand Pardasani and Mr. Moksha Shrichand Pardasani are the Director of Mumbai Wines & Traders Private Limited. All of them have colluded with each other with malafide intention to cheat Atul Projects India Pvt. Ltd. It is pertinent to note that in the AOA in clause No.13 a right is vested to take Criminal Action against the Vendors i.e. Deepak Vinod Thakkar and Prasan Vinod Thakkar and the Financial Creditors have not initiated any action against the Vendors i.e. Deepak Vinod Thakkar and Prasan Vinod Thakkar. This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of of payment to Mr. Thakkar and Vision Infrastructure Private Limited. The Corporate Debtor craves leave to refer to and rely upon the records from the ROC, Mumbai showing Mr. Deepak Thakkar as Director of copy of signatory." 44. The payment of Rs.1.70 Crores which was claimed by the Corporate Debtor to be paid to Thakkar and his Companies Vision Infraventures Private Limited are duly supported by Bank Statement. Learned Counsel for the Respondent has contended that Manish Pardasani has never gave any written instructions to the Corporate Debtor to refund the amount to Thakkars and the letter which is relied by the Corporate Debtor in its Reply Affidavit, undated letter of Manish Pardasani relied by Corporate Debtor, was never signed by Manish Pardasani. The letter which is claimed by the Corporate Debtor written by Manish Pardasani, being disputed, we proceed as if no such authorisation was given by the Financial Creditor to the Corporate Debtor to refund the money to Deepak Vinod Thakkar. However, the Bank Statement which are filed along with the Reply indicates payments to Deepak Vinod Thakkar and its Company Vision Infraventure Private Limited, which is reflected as claimed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceipt of any balance amount apart from Rs.1.3 Crores. Thus, the said letter 15.10.2011 cannot read to mean that no amount was paid by the Corporate data towards refund of Rs.3 Crores received by them. 47. The Financial Creditor who has advanced Rs.3 Crores for a Project to start after expiry of 7 months which was a maximum period for a Project to start having come to an end, has not even written a letter demanding any amount for long more than 8 years to the Corporate Debtor demanding any amount speaks for itself that the Financial Creditors was satisfied about his refund of the amount and the State of Affairs indicate that there was no cause to take any action by the Financial Creditor. Corporate Debtor has already pleaded that Financial Creditor and the Partners, i.e., Vendors/Thakkars, were friends and in collusion with each other. Not even writing a letter after 16.12.2010 till 30.07.2019 i.e., after lapse of more than 8 years by the Financial Creditor itself indicates that they have no genuine claim against the Corporate Debtor. In event the huge dues were there on the Corporate Debtor due to Project having not commenced, there was no reason as to why the Financial Creditor w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion to cheat the Corporate Debtor, but there are no averment that Section 7 Application has been filed fraudulently or with malicious intent. We, thus, are of the view that in the facts of the present case, especially when Corporate Debtor has not pleaded that proceedings have been initiated maliciously with fraudulent intent, we are of the view that ingredients of Section 65 are not fulfilled, hence Notice under Section 65 is discharged. 51. There is one more question, which need to be noticed, by Order dated 02.08.2023 we had also issued Notice to the IRP, noticing that IRP by giving his written consent to the Adjudicating Authority for acting as IRP has given certificate to the facts of the case. Learned Counsel for the IRP during his submission has referred to Insolvency and Bankruptcy (Application to the Adjudicating Authority) Rules, 2016. He has referred to Optional Certificate which is at the end of Form-2'. 52. The use of the expression "Optional Certification" in `Form - 2' itself indicates that the said certification is only optional and not required to be given by the IRP, who is giving consent to act as. The Optional Certificate which has been given by the IRP is par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ree Crores only) on execution of the Said AOA and the balance sum of Rs.3,00,00,000/- (Rupees Three Crores only) was required to be paid by the Financial Creditors, subjected to the Corporate Debtors duly complying with all the obligations under the Said MOU including but not limited to obtaining Intimation of Disapproval ("IOD"), Commencement Certificate ("C. C."), execution and registration of an Agreement for Sale of the Said Flat, etc. The Said AOA categorically records that the Corporate Debtor shall comply with all the obligations under the Said MOU within 06 months from the date of execution of Said AOA. That, the Said AOA categorically records that in the event the Corporate Debtor fails to comply with its obligations under the Said MOU and/ or fails to enter into a Development Agreement with the Vendors within 06 months from the date of execution of the Said AOA, then the Financial Creditors shall have an option to terminate the Said AOA and the Corporate Debtor shall be liable to return to the Financial editors the sum of Rs.3,00,00,000/- (Rupees Three Crores only) so invested by the Financial Creditors with the Corporate Debtor along-with interest at the rate of 18% p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppoint an insolvency resolution professional, shall obtain a written communication in Form 2 from the insolvency professional for appointment as an interim resolution professional and enclose it with the application made under rules 4, 6 or 7, as the case may be. (2) The application under sub-rule (1) shall be accompanied by a certificate confirming the eligibility of the proposed insolvency professional for appointment as a resolution professional in accordance with the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016." 54. The detail facts and opinion as extracted above, 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 intent to help the Financial Creditor. We are of the clear view that Optional Certificate was not necessary, and the use of the word "Optional" itself indicates that unless ..... X X X X Extracts X X X X X X X X Extracts X X X X
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