Rajan Goyal vs Sharad Vadehra

Mr. Ranjan Goyal ...Appellant

Vs.

Sharad Vadehra ...Respondent

Present: For Appellant: - Mr. Vivek Sibal, Mr. Rahul Sharma and Mr. Yash Patel, Advocates.

For Respondent: - Mr. Vipul Srivastav and Mr. Aditya, Advocates.

O R D E R

02.09.2019─ The Respondent- 'Sharad Vadehra, allottee ('Financial

Creditor') filed an application under Section 7 of the Insolvency and

Bankruptcy Code, 2016 ("I&B Code" for short) against 'M/s. Homestead

Infrastructure Development Pvt. Ltd.'- ('Corporate Debtor'). The

Adjudicating Authority (National Company Law Tribunal), New Delhi

Bench, by impugned order dated 14th January, 2019, admitted the

application giving rise to the present appeal preferred by Shareholder.

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

there was no such agreement between the Respondent- ('Financial

Creditor') and 'M/s. Homestead Infrastructure Development Pvt. Ltd.'-

('Corporate Debtor'). The Respondent- ('Financial Creditor') is an allottee

of one 'M/s. Golden Peacock Residence Private Limited'. 2

3. On the other hand, learned counsel for the Respondent- ('Financial

Creditor') referring to the records, including the Agreement reached

between different parties, submitted that 'M/s. Golden Peacock

Residence Private Limited' is 100% subsidiary of 'M/s. Homestead

Infrastructure Development Pvt. Ltd.'- ('Corporate Debtor') and both, in

consortium, reached an Agreement with 'M/s. Raheja Developers Limited'

for development of land, pursuant to which the Respondent, allottee

('Financial Creditor') received Demand Notice on behalf of 'M/s.

Homestead Infrastructure Development Pvt. Ltd.'- ('Corporate Debtor').

The amount was disbursed for consideration of time value of money and

receipt was also issued by 'M/s. Homestead Infrastructure Development

Pvt. Ltd.'- ('Corporate Debtor').

4. On hearing learned counsel for the parties and on perusal of

records, it appears that 'M/s. Homestead Infrastructure Development

Pvt. Ltd.'- ('Corporate Debtor') was incorporated on 22nd November, 2011.

It constituted a wholly owned subsidiary namely 'M/s. Golden Peacock

Residence Private Limited' incorporated on 27th January, 2012. 'M/s.

Homestead Infrastructure Development Pvt. Ltd.'- ('Corporate Debtor')

along with 'M/s. Golden Peacock Residence Private Limited' made a joint

venture by Agreement dated 24th July, 2012 and reached Agreement with

M/s. Raheja Developers Limited'.

5. Pursuant to Demand Notice dated 27th August, 2012 issued by

'M/s. Homestead Infrastructure Development Pvt. Ltd.'- ('Corporate

Debtor'), disbursed the amount for which different receipts were issued

Company Appeal (AT) (Insolvency) No. 173 of 2019 3

by 'M/s. Homestead Infrastructure Development Pvt. Ltd.'- ('Corporate

Debtor'). Subsequently, Allotment Letter was issued by 'M/s. Homestead

Infrastructure Development Pvt. Ltd.'- ('Corporate Debtor') on 4th

January, 2013. Copy of demand letter dated 27th August, 2012 is as

follows:

Company Appeal (AT) (Insolvency) No. 173 of 2019 4

6. The receipt of the amount disbursed by the Respondent has been

enclosed, one of which is quoted as follows:

Company Appeal (AT) (Insolvency) No. 173 of 2019 5

7. Allotment Letter dated 4th January, 2013 is also under the heading

'Homestead' is extracted below:

Company Appeal (AT) (Insolvency) No. 173 of 2019 6

8. From the aforesaid allotment letter, demand notice, allotment letter

and receipt, we find that there is a joint venture between 'M/s. Homestead

Infrastructure Development Pvt. Ltd.'- ('Corporate Debtor') and 'M/s.

Golden Peacock Residence Private Limited' and, therefore, the Appellant

cannot take the plea that 'Homestead' is not a 'Corporate Debtor'.

9. The Adjudicating Authority noticed the relevant facts, including an

e-mail dated 7th June, 2014 on behalf of 'M/s. Homestead Infrastructure

Development Pvt. Ltd.'- ('Corporate Debtor') asking the 'Financial

Creditor' to draw the cheque in the name of 'M/s. Golden Peacock

Residence Private Limited', which reads as follows:

"Tanya BectorTanya.bector@homestead-india.com To: Sharad Vadehra vadehra666@gmail.com Dear Mr. Vadehra Greetings for the day, Please find below the RTGS details of Golden Peacock:

Golden Peacock Residence Private Limited A/C No. 912020031148652 IFSC Code: UTIB0000056 Swift Code: AXISINBB056 Bank: Axis Bank Please intimate us with the status as to coordinate with the bank. Warm regards, Tanya Bector."

10. From the aforesaid facts, as we find that 'M/s. Homestead

Infrastructure Development Pvt. Ltd.'- ('Corporate Debtor') reached

Company Appeal (AT) (Insolvency) No. 173 of 2019 7

agreement jointly with 'M/s. Golden Peacock Residence Private Limited'

have entered into the development agreement with 'M/s. Raheja

Developers Limited' on 24th July, 2012 and for all purposes it is a joint

venture with 'M/s. Golden Peacock Residence Private Limited' who is a

subsidiary company and reached agreement with Respondent, but asked

to pay the amount to 'M/s. Golden Peacock Residence Private Limited',

we hold that the application under Section 7 against 'M/s. Homestead

Infrastructure Development Pvt. Ltd.'- ('Corporate Debtor') is

maintainable.

11. Learned counsel for the Appellant informed that 'M/s. Raheja

Developers Limited' has sold its all the rights to 'M/s. Golden Peacock

Residence Private Limited' in the year 2015, but that will not change the

complexion of the matter as in place of 'M/s. Raheja Developers Limited',

'M/s. Golden Peacock Residence Private Limited' will be the Developer

jointly with 'M/s. Homestead Infrastructure Development Pvt. Ltd.'-

('Corporate Debtor').

In absence of any merit, we dismiss the appeal. No costs.

(Justice S.J. Mukhopadhaya) Chairperson

(Justice A.I.S. Cheema) Member(Judicial)

(Kanthi Narahari) Member(Technical) Ar/g

Company Appeal (AT) (Insolvency) No. 173 of 2019