9911796707
TMI Blog2025 (1) TMI 684X X X X Extracts X X X X X X X X Extracts X X X X ..... The Impugned order allows Section 7 proceedings against Corporate Debtor - Vibrant Buidwell Pvt. Ltd. ('VBL') filed by the Shareholder and investor which is also the Financial Creditor - M/s Dilwara Leasing and Investment Ltd. ('DLIL'). 2. Recapitulating the relevant facts, NCLT had closed the right of Corporate Debtor to file reply on 17.12.2020 in Company Petition No. (IB) -983(ND)/2020. The Appellants herein preferred Appeal against the order dated 17.12.2020 before NCLAT being Company Appeal No. 58/2021. The said appeal was dismissed by NCLAT on 01.02.2021. Appellants on 16.12.2020 preferred an application u/s 60(5) of Code read with Rule 11 of NCLT Rules being CA No. 1/2020 seeking intervention before AA. The Adjudicating Authority dismissed the intervention application on 02.03.2021 Against the said order of NCLAT, Appellants herein preferred a Civil Appeal No. 638/2021 before Hon'ble Apex Court wherein Appellants had taken similar and identical grounds as in the present Appeal. Even, Hon'ble Apex Court vide its order dated 29.06.2021 dismissed the same. The Appellant herein had filed a Company Appeal No. 3626/2021 under Section 65 of the IBC Code before the Adjudicatin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... control between Mr. Birendra Kumar Pasari and Appellant herein. The said access and control over the records of the Corporate Debtor are now being fraudulently used by the Financial Creditor herein, who is clearly an alter ego of Mr. Birendra Kumar Pasari. 7. Mr. Birendra Kumar Pasari, as per the said Terms and Conditions of Development of the Project, started investing through his group companies namely M/s. Bishwananth Industries Ltd., Financial Creditor and M/s. Bijay Papers Traders and Investment Ltd. and was appointed as a Director of the Corporate Debtor w.e.f. 09.07.2012. On 27.08.2012 - an amount of Rs.3,00,00,000/- was transferred by the Respondent No.3 from his company M/s. Bishwananth Industries Ltd and on 26.09.2012, an amount of Rs.2,99,00,000/- was transferred by the Financial Creditor. Needless to say that the Corporate Debtor transferred a huge sum to Financial Creditor, much prior to the alleged loan and the said transaction was carried out by Mr. Birendra Kumar Pasari, who was handling the Banking as per the understanding between the parties. This clearly shows that the investment was done by Mr. Birendra Kumar Pasari thorough his Companies, whereas now the Finan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Corporate Debtor by making and writing letters. As per the term sheet, Respondent No.3 - Birendra Kumar Pasari entered into an agreement of taking equity to the extent of 50% against the money, which is being brought into the company. Having chosen to take equity into the Corporate Debtor, the same amount cannot be claimed back as loan. Therefore, there is no debt in the matter. After the acceptance of shares in terms of the MoU / Terms and Conditions there is no liability or obligation and Financial Creditor - 'DLIL' cannot be kept in any of the categories of financial debt under Section 5(8). 11. Financial Creditor has failed to make out any case of disbursal of any financial debt in consideration for the time value of money. Financial Creditors own ledger fails to provide basis for calculation of the alleged interest as the ledger account from 2012 to 2014 reflects no interest, even though the so called loans have been allegedly disbursed in the year 2012. 12. Corporate Debtor is a quasi-partnership firm wherein the appellants in the Financial Creditor have equal ownership and voting rights of 50%. The so-called Financial Creditor of the Corporate Creditor is merely a pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n total control of the Corporate Debtor and the Financial Creditor was aware about the daily financial requirements of the Corporate Debtor and he used to transfer money as per the Terms and Conditions of Development of the Project out of the agreed investment amount of Rs.15 Crores upto Rs. 20 Crores. 17. Adjudicating Authority has placed undue reliance on the closure of the right of the Corporate Debtor to file its reply to the Section 7 petition and rejected Section 65 application without considering the said application on merits. Since only two Directors of the Corporate Debtor remained and Corporate Debtor was not even allowed to defend the Section 7 proceedings initiated malafidely by Respondent No. 1, the ownership and control was with Mr. Birendra Kumar Pasari, who is also 50% shareholder. In view of the terms and conditions - with the development of the project, the Corporate Debtors right to file a reply was closed vide order dated 17.12.2020. Corporate Debtor appealed before this Tribunal against the right to file a reply by the Corporate Debtor, which was dismissed by this Tribunal on 01.02.2021 and by Hon'ble Apex Court vide order dated 29.06.2021. In order to bring ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its, whereas Mr. Birendra Kumar Pasari with ulterior motives never initiated the process of sale of the said project of the Corporate Debtor. 21. From the written submissions as filed by Mr. Birendra Kumar Pasari, it is evident that his primary objective is initiation of CIRP of the Corporate Debtor and not to provide a tenable defence on behalf of the Corporate Debtor against the vexatious petition file by the Financial Creditor. This is further strengthened by the fact that Mr. Birendra Kumar Pasari chose not to file any reply to the petition u/s 65 filed by Mr Raj Kumar Sahni. (Order dated 05.10.2021 passed by NCLT). 22. The instant case is clearly not a case falling within the ambit of Section 5(8) of the IBC and thus no petition under Section 7 of the IBC can be filed against the Corporate Debtor herein. 23. The Financial Creditor herein has failed to make out any case of disbursal of any financial debt. It is clear that even as per the Financial Creditor, there is no date of repayment of the alleged loan. The calculation sheet as provided by the Financial Creditor's has no basis and there is no clarity as regards the interest paid, interest charged, adjustment made etc. by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owledged by Corporate Debtor. Accordingly, Corporate Debtor over a period of time had availed principal loan amounting to Rs. 14,55,36,849/- from Respondent No.1 during financial year 2012-2013 till 2018-2019. The Corporate Debtor also requested Respondent No.1 to provide margin money as and when required, to the bank, with a view to enable the Corporate Debtor to furnish a bank guarantee in favour of DTCP in order to renew license of Corporate Debtor whereupon Respondent No.1 vide its letter dated 24.09.2012, agreed to provide the same to the bank for the purpose of issuance of BG in favour of DTCP. Accordingly, Respondent No.1 provided margin money [Rs.2,44,47,000/- and Rs.4,25,00,000/- on 27.09.2012 & 21.05.2013 respectively] to enable Corporate Debtor to furnish the BG in favour of DTCP, Haryana to get the license to develop the colony. The Corporate Debtor in the year 2016 applied for migration of its license from group housing colony to affordable plotted colony under Deen Dayal Jan Awas Yojna [in short 'DDJAY'], wherein Corporate Debtor is allowed to sell plots after demarcation. Despite receipt of License. i.e. License No. 41/2018. under DDJAY on 16.06.2018, the Cor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same objections by way of different application when the same were already been dealt with. 29. Respondent No.1 further submits that Audited Financials Statement of the Corporate Debtor duly signed by all its directors including Appellants for the financial year commencing from 2012-2013 up till 2016-2017 clearly reflects the loan amount given by R-1 into the account of Corporate Debtor. The Audited Financial Statement of Corporate Debtor clearly indicates the Finance Cost in notes No. 9 of its Audited Financial Statements which was also confirmed in notes to accounts of AS-18 Statement of Corporate Debtor. The audited financial statement of Corporate Debtor reflects interest amount on loan given by respondent No.1 / Financial Creditor in their audited balance sheet. The Audited Financial Statement of Corporate Debtor duly signed by all its director commencing from 2012-13 up till 2016-17 clearly indicates the loan amount disbursed by Respondent No.1 as well as interest accrued therein along with the Bank Guarantee provided by Financial Creditor on behalf of Corporate Debtor. The audited Balance Sheets of Corporate Debtor duly signed by all its directors including Appellant No. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... That even the audited Balance Sheets of Corporate Debtor duly signed by all its directors including Appellants herein also reflect the TDS payable on the interest amount. 33. It is also contended that despite receipt of License under DDJAY [License No. 41/2018] on 16.06.2018 for affordable Plotted Colony and after getting all necessary approvals including sanction plans, Corporate Debtor wilfully not sold its Plots to evade the payment towards its debts. 34. Respondent No.1 contends that the reliance placed by Appellants on the alleged Terms & Conditions is unwarranted as the same is self-serving, false and fabricated document. The same is based on concocted stories which never existed in the eyes of law. 35. Parties are not allowed to bring any new documents in an Appeal. Appellants are bound by the pleadings earlier filed by them before Ld. AA/NCLAT/SC. Both the documents at Page No. 94-96 of Appeal & Page No. 12-16 of IA No. 1102/2022 are materially different from each other. Respondent No.1 was not a party to the said document. The grounds taken in present Appeal is nothing but a carbon copy of earlier Appeals which were dismissed. At every stage the Appellants had tried to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Rule 11 of NCLT Rules, 2016, which was also dismissed by the Adjudicating Authority on 02.03.2021. 42. The Appellant herein had filed a Company Appeal No. 3626/2021 under Section 65 of the IBC Code before the Adjudicating Authority. The Adjudicating Authority, after going into the details of the various appeals of the Appellant, found no merit in the I.A. No.3626/ND/2021. In the impugned order the Adjudicating Authority has noted various appeals filed by the Appellant as follows: ".... 8. Heard. The records have been thoroughly perused. Apparently, the right to file reply of the respondent corporate debtor was closed by this Tribunal vide order dated 17.12.2020. The said order was challenged by the applicants before Hon'ble NCLAT and Hon'ble Supreme Court, but the order dated 17.12.2020 was upheld in both the Appeals. 9. The applicants also filed CA No. 1 of 2020 for impleadment/intervention with similar grounds, but the same application was also dismissed vide order dated 02.03.2021. The applicants have tried twice to raise similar grounds before this Tribunal. Reasonable opportunity was given to corporate debtor for contesting the main IB petition but failed to d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 7 of the Code, the Financial Creditor has placed Balance Sheets of the Corporate Debtor reflecting debt given by the Financial Creditor acknowledged. The Financial Statements for the F.Y. ending 2012- 2013 to 2016-2017 was duly signed by the director of Corporate Debtor namely, Mr. Raj Kumar Sahani i.e. the other director. It is reiterated that the corporate debtor failed to raise any objection within stipulated time provided by this Tribunal. 12. The Financial Creditor has invested its money for a project and the corporate debtor has failed to complete the project and infact changed the entire project into another type of project. Therefore, it is well within the rights of the financial creditor to recall its financial debt as the project is not the same. In view of the documents placed on record, the financial creditor proved that financial debt was given to the corporate debtor and the corporate debtor has defaulted in repayment of said financial debt. 13. Needless to say, that an application under Section 7 of the Code is acceptable so long as the debt is proved to be due and there has been occurrence or existence of default. What is material is that the default ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ors ("CoC") of Vibrant Buildwell Company Appeal (AT) (Insolvency) Nos. 253-254, 256-257 & 442-443 of 2024 Pvt. Ltd. and Successful Resolution Applicant ("SRA") of the Corporate Debtor ("CD") against the same order dated 24.01.2024 in I.A. No.4173 of 2023 filed by Raj Kumar Sahni, Suspended Director and Shareholder of the Corporate Debtor and IA No.5458 of 2022 filed by RP for approval of Resolution Plan. The Adjudicating Authority, had allowed I.A. No.4173 of 2023 accepting the objection raised by Raj Kumar Sahni, Suspended Director and shareholder of the Corporate Debtor and consequently rejected IA No.5458 of 2022 filed by the RP for approval of Resolution Plan. The coordinate Appellate Bench had heard on the impugned order of the Adjudicating Authority for liquidation and it was set aside and resolution plan as proposed/approved by the RP and CoC was approved. The relevant extract of this order are as follows: ".... 31. In result, all the Appeal(s) are allowed. The order dated 24.01.2024 impugned in these Appeal(s) are set aside. IA No.4173 of 2023 is dismissed and IA No.5458 of 2022 is allowed, approving the Resolution Plan. Consequential order with respect to approval of R ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
