Paramjit Gandhi vs Amit Kumar Malik & Anr

Paramjit Gandhi ...Appellant

Vs.

Amit Kumar Malik & Anr. ...Respondents

Present: For Appellant: - Mr. Satish Rai, Mr. Kartik Bhardwaj and Mr. Abhay Kaushik, Advocates.

For Respondents: Mr. Vivek Malik, Advocate for R-1.

O R D E R

28.02.2019─ The Respondent- Mr. Amit Kumar Malik, an allottee of

the Real Estate, filed an application under Section 7 of the Insolvency

and Bankruptcy Code, 2016 ("I&B Code" for short) for initiation of the

'Corporate Insolvency Resolution Process' against 'M/s. Kindle

Developers Pvt. Ltd.'- ('Corporate Debtor'). The Adjudicating Authority

(National Company Law Tribunal), New Delhi Bench, by impugned order

dated 9th March, 2018 admitted the application which is under challenge.

2. Before the constitution of the 'Committee of Creditors', learned

counsel on behalf of the Appellant sought for some time to settle the

matter. However, even after four months, the matter could not be settled.

3. In the meantime, the 'Committee of Creditors' was constituted,

'Information Memorandum' sought for, 'Resolution Applicants' have filed

their 'Resolution Plans', which are under consideration of the 'Committee

of Creditors'.

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4. Learned counsel appearing on behalf of the Appellant submitted

that the allottee of infrastructure has been treated to be a 'Financial

Creditor' by amendment of Section 5(8) made on 6th June, 2018. The

application was admitted much prior to the amendment i.e. on 9th March,

2018. However, such submission cannot be accepted as in terms of the

agreement, the Respondents having disbursed the amount against the

consideration for time value of money i.e. for flat, it is the time value as

decided in the case of "Nikhil Mehta & Sons (HUF) & Ors. V. AMR

Infrastructures Limited" and the Adjudicating Authority has rightly

treated the Respondent as a 'Financial Creditor'. Mere recognition of such

position by amending Section 5 (8) will not make substantial change in

the main definition of 'Financial Debt' as defined in Section 5(8) read with

Section 5(7) i.e. the 'Financial Creditor'.

5. It was next contended that there was no due payable in fact as on

the date of admission of application under Section 7.

6. Learned counsel for the Appellant relied on a letter dated 10th

March, 2018 addressed by the 'Corporate Debtor' to the Respondent

('Financial Creditor') which was pressed to suggest that the Respondents

made application for cancellation and refund of the amount and

acceptance for refund of full booking amount after deducting service tax.

Company Appeal (AT) (Insolvency) No. 512 of 2018 -3-

7. However, the Respondents have brought to the notice that the post-

dated cheques which were provided to the Appellant, out of 10 cheques,

three were encashed and fourth was presented and bounced. The amount

of the bounced cheque is Rs. 2 lacs i.e. more than Rs. 1 lac.

8. In the circumstances, we hold that there is a debt which was

payable and in terms of the settlement it was not paid and, therefore, the

application under Section 7 was maintainable.

9. Learned Counsel appearing on behalf of the group of allottees

submits that in their cases also the Real Estate Owner ('Corporate

Debtor) has failed to provide the flats and/or refund the amount. They

have jointly applied as 'Resolution Applicants' and their 'Resolution Plan'

is pending consideration.

10. In the facts and circumstances, we are not inclined to interfere with

the impugned order dated 9th March, 2018. The appeal is dismissed. No

cost.

(Justice S.J. Mukhopadhaya) Chairperson

(Justice Bansi Lal Bhat) Member(Judicial) Ar/uk

Company Appeal (AT) (Insolvency) No. 512 of 2018