Kamal Dutta vs Anubhuti Aggarwal & Anr

For Appellant : Shri Simran Jyot Singh Khandpur, Advocate

For 1st Respondent: Shri Mayank Goel and Shri Monamshel Maring, Advocates

For Respondent : Ms. Lalrinchhani, Advocate for I.R.P.

ORDER

11.01.2018 Ms. Anubhuti Aggarwal claimed herself to be a 'Financial

Creditor' and filed an application under section 7 of the Insolvency and

Bankruptcy Code, 2016 (hereinafter referred to as the 'I&B Code') seeking to

set in motion Corporate Insolvency Resolution Process against DPL Builders

Pvt. Ltd. (Corporate Debtor). The Adjudicating Authority (National Company

Law Tribunal), Bench-III, New Delhi by the impugned order dated 8th

December, 2017 having admitted the application and passed order of

moratorium and having appointed Interim Resolution Professional, the

appellant, Director of the DPL Builders Pvt. Ltd. (Corporate Debtor) has

preferred this appeal.

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2. Learned counsel for the appellant submits that the Corporate

Debtor had taken a specific plea that Ms. Anubhuti Aggarwal (the applicant)

do not come within the meaning of 'Financial Creditor'. An agreement was

reached for selling the flats in favour of the said respondent for a sum of Rs.

25,00,000/- and the same cannot be treated as an investment or borrowing

by the Corporate Debtor for the purpose of sub-section (7) read with sub-

section (8) of Section 5 of the I & B Code.

The Adjudicating Authority referred to clause 9 of the agreement, which

reads as follows and admitted the application :

"The project is already sanctioned and the possession of the flats will be handed over to the Second Party within 24 months from the date of this Agreement. However, in case, the Flat/premises is not ready to be given possession of, then the second party shall be at liberty to encash the cheque No. 792973 for Rs. 25.00 lacs, mentioned in clause 6 of this agreement."

3. Learned counsel appearing on behalf of the appellant submits that

much prior to passing of the impugned order dated 8th December, 2017 an

agreement had been reached between the Corporate Debtor and Ms.

Anubhuti Aggarwal on 5th December, 2017 in terms of which it was agreed

that the payment would be made to the respondent by 12th December, 2017.

Company Appeal (AT) (Insolvency) No. 329 of 2017 3

Such agreement having reached on 5th December, 2017, prior to the expiry of

such date, the application under Section 7 was not maintainable.

4. Learned counsel appearing on behalf of Ms. Anubhuti Aggarwal accepts

that an agreement reached on 5th December, 2017 and submits that the

amount has already been paid as per settlement. It is submitted that the

application was not withdrawn by the respondent as the amount was payable

on 12th December, 2017.

5. We have heard the learned counsel for the parties including the

Insolvency Resolution Professional.

6. From the impugned order, we find that the Adjudicating Authority

though relied on the decision of this Appellate Tribunal in "Nikhil Mehta and

Sons vs. AMR Infrastructure Ltd." but has not discussed whether

Rs. 25,00,000/- was given by Ms. Anubhuti Aggarwal as the consideration

against the time value of money, which is the essential requirement under

sub-section (8) of Section 5. Further, there being a subsequent agreement

reached between the parties on 5th December, 2017, we are of the view that

the petition under Section 7 was not maintainable prior to 12th December,

2017.

7. For the reasons aforesaid, we set aside the impugned order dated 8th

December, 2017 passed by the Adjudicating Authority, New Delhi Bench in

C.P. No. IB-307/(ND)/2017.

8. In effect, order(s) passed by the Adjudicating Authority appointing any

'Interim Resolution Professional', order declaring moratorium and all other

Company Appeal (AT) (Insolvency) No. 329 of 2017 4

order(s) passed by Adjudicating Authority pursuant to impugned order and

action 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, 2016 is dismissed.

Learned Adjudicating Authority will now close the proceeding. The Corporate

Debtor is released from all the rigour of law and is allowed to function

independently through its Board of Directors from immediate effect.

9. Learned Adjudicating Authority will fix the fee of 'Interim Resolution

Professional', if appointed, and the Corporate Debtor will pay the fees of the

Interim Resolution Professional, for the period he has functioned. 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)

/ns/uk

Company Appeal (AT) (Insolvency) No. 329 of 2017