Anil Kumar Tulsiani vs Rakesh Kumar Gupta & Anr

Anil Kumar Tulsiani ...Appellant

Vs.

Rakesh Kumar Gupta & Anr. ...Respondents

Present: For Appellant: - Mr. Virendra Ganda, senior Advocate with Ms. Simran Jyoti Singh, Mr. Jitendra Chaudhary, Advocates. Mr. Anil Kumar Tulsiani.

For Respondents: - Ms. Sumedha Singh, Advocate for RP and Mr. Anil Kumar Jain, R.P. Mr. Mayank Goel and Mr. Monamshel Maring, Advocates for R1 & 2.

ORDER

22.01.2019─ This appeal has been preferred by Mr. Anil Kumar

Tulsiani, Director of 'Sunshine Infraheights Private Limited'- ('Corporate

Debtor') against the order dated 17th December, 2018 passed by the

Adjudicating Authority (National Company Law Tribunal), New Delhi

Bench. By the said order, the application under Section 7 of the

Insolvency and Bankruptcy Code, 2016 ("I&B Code" for short) filed by the

Respondents- Mr. Rakesh Kumar Gupta and Ms. Swati Goel, has been

admitted.

Company Appeal (AT) (Insolvency) No. 35 of 2019 2

2. Learned counsel appearing on behalf of the Appellant submitted

that there was no default on the part of the 'Corporate Debtor' and

therefore, the application under Section 7 was not maintainable.

3. Reliance has been placed on the impugned order wherein the stand

taken by the 'Corporate Debtor' was noticed, as follows:

"6. The respondents on putting in appearance

before this Bench have filed their reply. It is

submitted by the ld. Counsel that the submissions

made in the present petition are contrary to the

stand taken by the Financial creditors in their

legal Notice. The amounts are acknowledged

towards the payment of plots Nos. A71, A72 and

A73, for which the total sale consideration is Rs.

96 Lakhs. Ld. Counsel submits that the Corporate

Debtor is ready to deliver and transfer these three

plots, subject to payment of the full sale

consideration. In fact, the stamp papers have also

been procured for and on behalf of the petitioners.

it is therefore submitted that the petitioners have

wrongfully invoked the provisions under the

Code. Reliance has been placed by the Corporate

Debtor on a draft copy of the agreement to sell. It

is, however, not in dispute that this agreement

Company Appeal (AT) (Insolvency) No. 35 of 2019 3

was never finalized and remained unsigned and

unexecuted by the petitioners. the financial claim

is also being disputed on grounds that the

cheques wee disbursed towards another

transaction."

4. The Contesting Respondents- Mr. Rakesh Kumar Gupta and Ms.

Swati Goel have appeared and not disputed the stand taken by the

'Corporate Debtor' before the Adjudicating Authority that the 'Corporate

Debtor' was ready to deliver and transfer three plots, subject to payment

of the full sale consideration. The Adjudicating Authority failed to

consider the aforesaid plea taken by the 'Corporate Debtor', and admitted

the application under Section 7 of the 'I&B Code'.

5. Normally, an 'allottee' of Real Estate comes within the meaning of

'Financial Creditor' but if such an 'allottee' does not pay the full amount,

cannot allege default on the part of the 'Corporate Debtor'. If the

'Corporate Debtor' does not complete the work within time and the

'allottee' is agreed to pay the total amount or has paid the total amount

then only the 'allottee' can allege default. Similarly, if 'allottee' finds that

completion has not been made by the 'Corporate Debtor' within time and

if request to return the amount disbursed to the 'Corporate Debtor', on

failure to refund the amount the allottee can claim the default on the part

of the 'Corporate Debtor'.

Company Appeal (AT) (Insolvency) No. 35 of 2019 4

6. In the present case, we find that the 'Corporate Debtor' had

procured the stamp papers much before the admission of the application

under Section 7 and was ready to execute the sale deed in favour of the

Respondents- allottees subject to payment of total consideration amount.

The 'Corporate Debtor' having ready to execute the sale deed subject to

payment of full consideration amount, we hold that there was no default

on the part of the 'Corporate Debtor'. The Adjudicating Authority has

failed to consider the aforesaid aspect.

7. It is informed that the parties have already settled the matter and

alternative plots have been allotted which are going to be registered in the

name of the Respondents.

8. The 'Interim Resolution Professional' has also appeared and not

disputed the aforesaid facts but he claimed fee and cost incurred by him.

9. In view of the finding aforesaid, we set aside the impugned order

dated 17th December, 2018. In effect, order (s), passed by the

Adjudicating Authority appointing 'Interim Resolution Professional',

declaring moratorium, freezing of account, and all other order (s) passed

by the Adjudicating Authority pursuant to impugned order and action, if

any, taken by the 'Interim Resolution Professional', including the

advertisement published in the newspaper calling for applications all

such orders and actions are declared illegal and are set aside. The

application preferred by Respondent under Section 7 of the 'I&B Code' is

Company Appeal (AT) (Insolvency) No. 35 of 2019 5

dismissed. Learned Adjudicating Authority will now close the proceeding.

The 'Corporate Debtor' (company) is released from all the rigour of law

and is allowed to function independently through its Board of Directors

from immediate effect.

10. Mr. Anil Kumar Jain, 'Interim Resolution Professional' present in

person. It is intimated that he has incurred expenditure of about Rs.

76,000/- and the 'Committee of Creditors' have approved his fee @ Rs.

3,00,000/- per month. He has worked as 'Interim Resolution

Professional' for one month and one week approximately. Therefore, we

quantify payment of total amount of Rs. 4,00,000/- towards his fees and

expenses which the 'Corporate Debtor' will pay within one month.

The appeal is allowed with aforesaid observation and direction.

However, in the facts and circumstances of the case, there shall be no

order as to cost.

(Justice S.J. Mukhopadhaya) Chairperson

(Justice Bansi Lal Bhat) Member(Judicial) Ar/uk

Company Appeal (AT) (Insolvency) No. 35 of 2019