Gurcharan Singh Soni & Kuldeep Kaur Soni vs Unitech Ltd. & Anr

Gurcharan Singh Soni & Kuldeep Kaur Soni Appellants

Vs.

Unitech Ltd. & Anr. Respondents

Present: For Appellants:- Mr. G.K.Jain, Chartered Accountant.

For Respondents:- Ms. Navneet S. Sehgal and Ms. Rishika Katyal, Advocates.

ORDER

23.08.2017- Appellants have challenged the order dated 21st

March, 2017 passed by Ld. Adjudicating Authority (National Company Law

Tribunal), Principal Bench, New Delhi in Company Petition No. (IB)-

29(PB)/2017, whereby and whereunder application preferred by

Appellants-'Operational Creditor' has been rejected in terms of order

passed in "Sajive Kunwar v. AMR Infrastructure" decided on 15th

February, 2017 by the Adjudicating Authority.

2. When the matter was taken up, Ld. Counsel for the appellants

brought to our notice that the State Consumer Disputes Redressal

Commission passed an order on 3rd October, 2016, directing the

respondents-'Corporate Debtor' to refund the amount with interest,

compensation and litigation expenses. It was submitted that the 'amount' -2-

due comes within the meaning of 'debt' and due amount having not been

paid there is 'default' and therefore, petition under section 9 was

maintainable.

3. Notices were issued on respondents- 'Corporate Debtor'. On notice,

Ld. Counsel for the respondents submits that notice under Section 8 was

not served on the 'Corporate Debtor'. However, from the record we find

Section 8 notice was issued and served on 'Corporate Debtor' on 31st

January, 2017 as reported by Postal Department in the tracking report of

the Speed-Post.

4. Ld. Counsel for the respondents next contended that the notice

under section 8 was not issued by proper authority but by the Power of

Attorney holder who is not competent to issue such notice.

5. In reply, Ld. Counsel for the appellants has brought to our notice

that one Mr. Mukesh Chadha has been given General Power of Attorney,

to lodge any case and sign on behalf of the appellants.

6. From the General Power of Attorney attested on 4th February 2017,

by the Notary Chandigarh, we find that the appellants are residing at

Canada and on a visit to India and they revoked the earlier General Power

of Attorney executed on 27th April, 2015 in favour of one Mr. Gulshan

Kumar Jain and appointed Mr. Mukesh Chadha, son of Late Shri Inder

Raj Chadha, Chartered Accountant as their General Power of Attorney -3-

holder for the purposes of singing on their behalf on all the applications

and documents, which may be required in connection with purchase of

premises from Unitech Ltd. etc. The said General Power of Attorney also

empowers Mr. Mukesh Chaddha to engage, appoint advocates/attorney(s)

on their behalf under his own signatures and to sign and verify all types

of documents in the Courts etc., relating to Civil and Criminal matters in

India. He has also been given the power to move before the Consumer

Court etc. to protect their interest. In that view of the matter, we hold that

Mr. Mukesh Chadha, General Power of Attorney holder has right to issue

notice under section 8 and sign Form -3 showing his relationship with

appellants as their General Power of Attorney holder.

7. So far as the decision in the case of "Sajive Kunwar Vs. AMR

Infrastructure" is concerned as referred to in the impugned judgment,

similar finding given by Ld. Adjudicating Authority in "Nikhil Mehta and

Sons. v. AMR Infrastructure Ltd." has been overruled by this Appellate

Tribunal by judgment dated 21st July, 2017 in Company Appeal (AT)

(Insol.) No. 07 of 2017. In that view of the matter, the decision of the Ld.

Adjudicating Authority based on the earlier case against the "AMR

Infrastructure Limited", cannot be a ground to reject the application

preferred by the appellants.

8. The term 'debt' has been defined in Section 3(11) of the I & B Code,

which reads as under:

-4-

"debt' means a liability or obligation in respect of a claim which is due from any person and includes a financial debt

and operational debt"

"Default" has been defined in Section 3(12) as:

"default" means non-payment of debt when whole or any

part or instalment of the amount of debt has become due

and payable and is not repaid by the debtor or the corporate

debtor, as the case may be"

Section 5(20) defines 'Operational Creditor' means a person to whom

an operational debt is owed, as quoted below:

"Operational Creditor means a person to whom an

operational debt is owed and includes any person to whom

such debt has been legally assigned or transferred"

9. Section 5(2 1) defines 'Operational Debt' means a claim in respect of

the provision of goods or services including employment or a debt in

respect of the repayment of dues arising under any law, payable to the

Central Government, any State Government or any local authority, as

quoted below: -

• "Operational debt means a claim in respect of the provision

of goods or services including employment or a debt in respect of the repayment of dues arising under any law for

the time being in force and payable to the Central

Government, any State Government or any local authority"

10. In view of the aforesaid provisions, we hold that there is a 'debt' due

to the appellants and there is default on the part of the respondents-

'Corporate Debtor'. However, the appellants do not come within the

meaning of "Operational Creditor".

11. In the case of "Nikhil Mehta and Sons. v. AMR Infrastructure

Ltd." this Appellate Tribunal noticed that Nikhil Mehta & Ors. purchased

flat/ shops from builder pursuant to an agreement. In terms of the said

agreement, this Appellate Tribunal held the "Nikhil Mehta and Sons" as

the 'Financial Creditor', as in their case the 'Financial Debt' was coming

within the meaning of Section 5(8)(f) of the I & B Code. As the agreement

reached between the parties pursuant to which amount has been ordered

to be refunded by consumer forum is not available before us and

appellants have not taken a plea that they are the 'Financial Creditor', we

are not deciding such question leaving the question open for decision in

case the appellants claims to be 'Financial Creditor' and moves before the

Adjudicating Authority with such plea.

12. For the reasons aforesaid, while we are not inclined to interfere with

the impugned order dated 21St March, 2017 on the ground that the -6-

Appellants are not 'Operational Creditor', give liberty to the parties to

decide their course of action as they may take, in accordance with law.

13. The appeal is dismissed with the aforesaid observations. However,

in the facts and circumstances, there shall be no order as to costs.

(Justice S.J. Mukhopadhaya) Chairperson

(Balvinder Singh) Member(Technical) ar