Jitendra Mehta & Ors vs Indtext India Pvt. Ltd

IN THE MATTER OF: Jitendra Mehta & Ors ... Appellants Vs. Indtext India Pvt. Ltd. ...Respondent Present: For Appellant:- PCS. Dhiren R Dave. For Respondent:-

ORDER

(Virtual Mode)

21.09.2021: Heard the Appellant Mr. Dhiren R Dave (PCS), he submits

that the Appellant being a Financial Creditor has filed an Application under

Section 7 for initiating Corporate Insolvency Resolution Process (CIRP) against

the Corporate Debtor. The Appellants have filed the claimed of Rs.

1,29,33,381/- towards (a) Consideration for retirement of Appellant (Mohit

Jitendra Mehta) as director (b) The Reimbursement of interest payable for

vehicle loan and (c) the Reimbursement of some expenses as per the MOU dated

18.03.2017 and 27.11.2017. The Corporate Debtor (Respondent) has failed to

pay the amount and committed default on 30.11.2018. For this amount, the

Corporate Debtor has issued cheques and acknowledge debt. However, Ld.

Adjudicating Authority erroneously dismissed the Application by the impugned

order dated 30.03.2021.

2. We have gone through the MOU dated 18.03.2017 and 27.11.2017. From

the perusal of MOU dated 18.03.2017, it reveals that the Appellant (Mohit

Jitendra Mehta) and one Ravi Avinash Suthar, they had started a business of

purchased and sale of oil and allied things by creating Indtext India Pvt. Ltd.

Company Appeal (AT) (Ins) No. 722 of 2021 2

together and Mohit Jitendra Mehta has made the investment. On 01.10.2016,

Mohit Jitendra Mehta retired as director and Ravi Avinash Shuthar director of

the Company (Indtext India Pvt. Ltd) agreed to pay 72 Lacs to Mohit Jitendra

Mehta in the instalment of Rs. 3 Lacs every month. It is also agreed that their

Company Indtext India Pvt. Ltd. purchased Mercedes E Class Daimler Co. by

loan. Mohit Jitendra Mehta paid margin money and three instalments, total

Rs. 11,80,000/-. The Loan has been taken in the name of Mohit Jitendra Mehta

but the vehicle has been used by the Company, hence, the company has to pay

the remaining instalment in the account of Mohit Jitendra Mehta and the

vehicle shall be transferred in the name of the Company.

3. Another MoU dated 27.11.2017 between the same parties as Ravi

Avinash Shuthar failed to comply the terms of the earlier MOU. Therefore, it is

again agreed between the parties that Ravi Avinash Shuthar shall pay total

amount of Rs. 1,10,58,574/- as early as possible and 33 cheques for remaining

amount of instalment of 88,000/- of Mercedes Car shall be given to the

Appellant.

4. With these MOU it seems that when the Appellant No. 1 retired as

director from the Company then it is agreed between one of the director and

the Appellant that the amount which is invested in the Company by Appellant

No. 1 will be repaid by the director Ravi Avinash Shuthar.

5. Ld. Adjudicating Authority has rightly held that the amount which is

claimed by the Appellant is not financial debt as defined under Section 5(8) of

the IBC and the Appellants are not the Financial Creditors as per the Section

5(7) of the IBC.

Company Appeal (AT) (Ins) No. 722 of 2021 3

6. We are convinced with the finding of Ld. Adjudicating Authority; we find

no legal flaw in the impugned order. Thus, the Appeal is dismissed summarily

without notice to other side.

[Justice Jarat Kumar Jain] Member (Judicial)

[Dr. Alok Srivastava] Member (Technical)

SC/GC/.

Company Appeal (AT) (Ins) No. 722 of 2021