M/S Agarwal Agencies Private Limited & ... vs Dove Infrastructure Private Limited

Agarwal Agencies Pvt. Ltd. & Ors. ...Appellants

Versus

Dove Infrastructure Pvt. Ltd. ...Respondent

Present: For Appellants: Mr. Abhishek Anand, Mr. Nipun Gautam and Mr. Prateek Kushwaha, Advocates. For Respondent: Ms. Madhavi Khare, Advocate for R-1.

ORDER

30.08.2022: Heard Shri Abhishek Anand, Learned counsel for the

Appellant. This Appeal has been filed against the order passed by the

Adjudicating Authority (National Company Law Tribunal), New Delhi Bench,

Court-III dated 09.06.2022 by which Section 7 Application filed by the

Appellant has been rejected. Appellant filed Section 7 Application claiming

Financial Debt, reliance was placed on an MOU entered between the Appellant

and M/s ABW Infrastructure Ltd. (Developer) for developing a land. The

Adjudicating Authority after hearing the parties rejected the Section 7

Application.

2. Learned counsel for the Appellant submits that in view of the MOU

entered between the Appellant and M/s ABW Infrastructure Ltd., the

Corporate Debtor is obliged to make payment to the Appellant. Learned

counsel has referred to Clause (A) of the MOU. Shri Abhishek Anand further

submits that the District Magistrate has already passed an order attaching the

assets by order dated 03.04.2018 under which Appellant is entitled to recover

Contd.../ 2

the amount from the Corporate Debtor, who was Respondent No. 8 in the

Complaint.

3. We have considered submissions of learned counsel for the Appellant

and perused the record.

4. The Adjudicating Authority while rejecting the Section 7 Application

made following observations:-

"We have heard the submissions made by the Counsels appearing for both sides and perused the records. Admittedly, the Memorandum of Undertaking was executed between M/s. ABW Infrastructure Limited and the present Applicant and the respondent was in no way connected to the MOU. There is no evidence on record to show that the money in question was in fact paid to present respondent out of the said agreement."

5. The MOU which is claimed to be entered between the Appellant and M/s

ABW Infrastructure Ltd., the Corporate Debtor was not party to the MOU.

Clause (A) on which much reliance is placed is as follows:-

"A. The Developer is proposing to develop/construct IT Park to be known as "Gateway Tower" on the land admeasuring 8.5 acres vide Khasra No. 1717/1634/1 (4-17), 1668/1(1-12), 1634/1(1-

14) 1634/2min (1-6), 1669 (0-15), 1672 to 1678 (3-8) at village Anangpur District Faridabad, Haryana in terms of Licence No. 281 of 2007 (renewed vide Memo No. 5DP-II/LC-

1179/2010/6021 dated 10.05.2010) granted by DTCP, Haryana under the Haryana Development & Regulation of Urban Areas Act,

Company Appeal (AT) (Insolvency) No. 968 of 2022 3

1975 & the rules made thereunder to M/s Dove Infrastructure Private Limited, J-10/1, DLF City, Phase-II, M. G. Road, Guraon - 122002 for setting up I.T. Park at village Sarai Anangpur, District Faridabad."

6. The mere fact that in Clause (A), as extracted above, M/s Dove

Infrastructure Private Limited is to set up I.T. Park does not make the

disbursement made by Appellant to M/s ABW Infrastructure Ltd. as a

Financial Debt against the Corporate Debtor. The disbursement against time

value of money is against M/s ABW Infrastructure Ltd. and not against the

Corporate Debtor.

7. Now coming to the order of District Magistrate, the said order attached

the property under Section 4 of Haryana Protection of Interest of Depositors

in the Financial Establishment Act, 2013. Order of attachment and

observations as made in the order for recovery does not make the claim of

Appellant as Financial Debt.

8. We, thus, are of the view that Section 7 Application filed by the Appellant

has been rightly rejected by the Adjudicating Authority. The impugned order

does not warrant any interference. The Appeal is dismissed.

Justice Ashok Bhushan] Chairperson

[Justice M. Satyanarayana Murthy] Member (Judicial)

[Barun Mitra] Member (Technical) Archana/nn

Company Appeal (AT) (Insolvency) No. 968 of 2022