Mahesh Kumar Panwar vs Neelam Singh & Anr

Mahesh Kumar Panwar ...Appellant

Versus

Neelam Singh & anr. ...Respondents

Present: For Appellant : Mr. S. Gosh and Mr. Abhishek Nahata, Advocates Mr. Arvinder Kumar, Chartered Accountant

For 1st Respondent: Mr. Anukul Raj, Mr. Rahul Shukla and Ms. Nikita Raj, Advocates

For 2nd Respondent: Mr. Kumar Dushyant Singh, Advocate

ORDER

20.03.2018 The respondent - Mrs. Neelam Singh, w/o Dr. Narendra Nath

Singh filed an application under Section 7 of the Insolvency and Bankruptcy

Code, 2016 (hereinafter referred to as the "I&B Code') for initiation of 'Corporate

Insolvency Resolution Process' against M/s. Megha Soft Infrastructure Pvt. Ltd.

The Adjudicating Authority (National Company Law Tribunal), New Delhi by

impugned order dated 23rd August, 2017 admitted the application, passed the

order of moratorium and appointed Insolvency Resolution Professional giving

rise to the present appeal.

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

respondent is not a 'financial creditor' within the meaning of sub-section (7) read

with sub-section (8) of Section 5 of the I & B Code. On the other hand, according 2

to the learned counsel appearing on behalf of the 1st Respondent, Mrs. Neelam

Singh is a 'financial creditor' within the meaning of the aforesaid provision.

3. The aforesaid issue was raised by the Corporate Debtor before the

Adjudicating Authority and after going through the record the Adjudicating

Authority accepted that the respondent is a 'financial creditor'.

4. The parties has brought to our notice the Agreement dated 26th June, 2014

reached between the 1st respondent (financial creditor) and M/s. Mega Soft

Infrastructure Pvt. Ltd. (corporate debtor), relevant portion of which reads as

follows:

"AGREEMENT

This agreement is made at NOIDA on 26th day of June, 2014

but agreement is effective from 01st day of June 2014 by and

between :

M/s. Mega Soft Infrastructure (P) Ltd. a company

incorporated under the Companies Act, 1956 having its

Corporate Office at No. 16-17, First Floor, C Block Market,

Sector 41, NOIDA 201301 through its Director Shri Mahesh

Kumar Pawar (who is empowered to execute this agreement

vide its resolution dated 30.05.2014, (hereinafter called the

"First Party", which expression shall, unless it be repugnant

to the context of meaning therefore, be deemed to include their

legal heirs, successors, representatives, nominees and

permitted assigns) of the First Party;

Company Appeal (AT) (Insolvency) No. 185 of 2017 3

AND

Mrs. Neelam Singh W/o Dr. Narendra Nath Singh, R/o B-

21/128-129, Bhairav Nath Gali, Kamachcha, Varanasi

221005, (hereinafter referred to as the "Second Party"

which expression shall, unless it be repugnant to the context

or meaning therefore, be deemed to include their legal heirs,

successors, representatives, nominees and permitted assigns)

of the second party;

The "FIRST PARTY" and "SECOND PARTY" are collectively

being referred to as the "PARTIES"

In terms of the clause No. B and 8 of the earlier valid

agreement dated 06.10.2008 entered between the same

parties, the first party was to handover the vacant possession

of space of about 2004 sq. ft. on 3rd floor in tower 1 in the

proposed IT complex cum corporate hub to be constructed at

plot No. 02/02 situated at sector - 154, in the name & style

"The Grid" of the unit duly completed in all respect by

30.06.2011.

It is ascertained and agreed by the first party that till date no

construction work has started. Consequent upon the factual

position both the parties have agreed for the amicable

settlement.

Company Appeal (AT) (Insolvency) No. 185 of 2017 4

NOW THEREFORE IT IS AGREED BY AND BETWEEN THE

PARTIES HERETO AS FOLLOWS :

1. Both the parties agreed and settled for a sum of

Rs.1,34,00,988/-(Rupees One Crore Thirty Four Lacs Nine

Hundred Eighty Eight Only) which includes booking

amount paid, compensation, commitment, services

rendered, appreciation etc.

The First Party has handed over post dated Cheque No.

617815 dated 01.02.2015 amounting to Rs.29,61,261/- &

Cheque No. 617818 amount to Rs.1,04,39,727/- both

drawn at Corporation Bank, Noida total amounting to

Rs.1,34,00,988/-(Rupees One Crore Thirty Four Lacs Nine

Hundred Eighty Eight Only) to the second party in

discharge of his liability and post dated cheques for interest

of deferred payment applicable as per the agreement

reckoning from 1st June 2014 as per details hereunder :-

The details of cheque are given below:-

Sl. Cheque Dated Amount Bank No. No. 1. 617803 01.08.2014 251268.00 Corporation Bank, Noida 2. 617804 01.10.2014 251268.00 Corporation Bank, Noida 3. 617809 01.12.2014 251268.00 Corporation Bank, Noida 4. 617812 01.02.2015 251268.00 Corporation Bank, Noida

Company Appeal (AT) (Insolvency) No. 185 of 2017 5

2. The First Party has agreed to pay to the Second Party the

outstanding amount on every due date as indicated above

along with the interest @12.5% p.a. reckoned from

01.06.2014 till the actual date of payment is made.

However in case First Party makes default in making

payment on due date as per this agreement then the rate of

interest shall be calculated @15% p.m. on the unpaid due

amount & shall be paid only for the outstanding period till

the date of actual payment. Further, in case the default

continues for a period of 90 days the party of the first part

shall discharge his obligation towards the second party by

discharging his rights/interest/share in M/s. Mega Soft

Infrastructure (P) Ltd. to the extent of outstanding amount

including interest thereof without any goodwill whatsoever

in the firm in favour of Second Party.

3. The total outstanding amount along with the interest has to

be fully secured against land, building etc. of M/s.

Megasoft Infrastructure (P) Ltd. in favour of the Second

Party till the outstanding amount including interest is not

paid in full.

4. The second Party shall have absolute right to claim from the

assets belongs to M/s. Mega Soft Infrastructure (P) Ltd.

Company Appeal (AT) (Insolvency) No. 185 of 2017 6

against the settlement of unpaid amount including interest

as specified in this agreement.

5. In case of prepayment which is made out of the outstanding

amount before the scheduled time given in the agreement

in that case for the adjustment of outstanding balance

amount fresh agreement shall be drawn & PDC cheques for

the outstanding amount shall be issued.

6. That in case of any dispute, the same shall be referred to

the arbitration of CA.B.L. Bajaj whose decision shall be

final & binding on both the parties."

5. From bare perusal of the agreement dated 26th June, 2014, we find that

the 1st respondent has disbursed a sum of Rs.1,34,00,988/- which is against

the 'consideration of time value of money' i.e. interest @ 12.5% per annum

payable from 1st June, 2014 and in case of default in making payment, the rate

of interest shall be @15% per annum on the unpaid due amount and payable till

the date of actual payment. There is a period of default prescribed therein which

stipulates that if defaults continues for a period of 90 days, the first party shall

discharge his obligation towards the second party by discharging his

rights/interest/share in M/s. Mega Soft Infrastructure (P) Ltd. The aforesaid

terms of agreement clearly shows that the 1st respondent 'disbursed' the amount

against 'the time value of money' and the 'corporate debtor' has defaulted to pay

the amount in terms of the agreement.

Company Appeal (AT) (Insolvency) No. 185 of 2017 7

6. Learned counsel appearing on behalf of the appellant submitted that the

amount has been repaid but such submission being not based on record cannot

be accepted. 1st respondent has enclosed the copies of the cheques to show that

a sum of Rs.1,34,00,988/- were paid in favour of the 'corporate debtor'. This

fact has not been disputed by the 'corporate debtor'.

7. The case of the appellant being covered by the decision of this Appellate

Tribunal in "Nikhil Mehta & sons vs. A.M.R. Infrastructure - Company Appeal (AT)

(Insolvency) No. 07 of 2017" no interference is called for against the impugned

order. This apart as the resolution process has already completed and the

resolution plan has been approved by the Adjudicating Authority no interference

is called for. The appeal is accordingly dismissed. No cost.

[Justice S.J. Mukhopadhaya] Chairperson

[ Justice Bansi Lal Bhat ] Member (Judicial) /ns/uk

Company Appeal (AT) (Insolvency) No. 185 of 2017