Smt. Sushila Lakhotia vs Zeal Developers Private Limited

Smt. Sushila Lakhotia ...Appellant

Versus

Zeal Developers Pvt. Ltd. ...Respondent

Present: For Appellant: Mr. Vivek Kohli, Sr. Advocate with Yeshi Rinchen, Mr. Aman Anand, Advocates For Respondents:

ORDER

(Virtual Mode)

23.02.2022: Heard Learned Sr. Counsel for the Appellant-Mr. Vivek

Kohli. Although Respondent has been served but no one appeared on behalf

of Respondent nor any Reply has been filed.

2. This Appeal has been filed against the Order dated 28th May, 2019

passed by the Adjudicating Authority (National Company Law Tribunal, New

Delhi, Bench-III) by which Order Application being IB-237/(ND)/2019 filed by

the Appellant under Section 7 of Insolvency and Bankruptcy Code, 2016 (IBC

in short) have been rejected.

3. The Appellant's case is that Appellant entered into an 'Investment

Agreement' with the Respondent/Corporate Debtor on 01st April, 2014. As per

the Investment Agreement, the amount of Rs. 75 Lacs were received by the

Corporate Debtor from the Appellant which is clearly mentioned in the

Investment Agreement itself. Learned Counsel for the Appellant further

submits that Developer has approved purchase of 2000 sq. ft. super area in 2

the Ground Floor which was allotted to the Investor. There has been certain

correspondences including the Letter of the Corporate Debtor for buying back

area of 1000 Sq. Ft. In this context, reference to the Letter dated 30th June,

2016 has been made which was written by the Corporate Debtor to the

Appellant. The case of the Appellant is that 25 Lacs were paid through RTGS

dated 18.09.2015 and no remaining payments have been made thereafter. In

this regard, First Notice was issued on 12th July, 2018 where the Appellant

called upon the Corporate Debtor to execute the Sale-Deed of the commercial

area and to handover possession and transfer all the security deposits and

lease rental and the Reply of this Notice was issued on 16th August, 2018 by

the Corporate Debtor where it was stated by the Corporate Debtor that

Appellant has invested the amount in the project and it has been mentioned

that amounts of Rs. 25 Lacs have been paid and rest amount will be paid when

the project shall start paying back. Further Notice was issued on 2nd

November, 2018 by the Appellant for recovery of 94,10,000/- with interest

which was not replied. Thereafter, an Application was filed by the Appellant

under Section 7 of the IBC before the Adjudicating Authority which came to

be dismissed by the Impugned Order.

4. The Adjudicating Authority while rejecting the Application of the

Appellant in paragraph 3 of the Impugned Order made following observations:

"We have gone through the documents filed by both the parties and heard their detailed arguments. Both parties have claimed completely different stories and have relied on completely separate set of documents to prove their stories. As contended by the Respondent, the relief sought by the Applicant in the two legal notices dated 12.07.2018 and 03.11.2018 are contrary to each other and there is no clarity of purpose. It is obvious from this

Company Appeal (AT) Ins. No. 711 of 2019 3

divergence that the parties, especially the Applicant, have not approached the Tribunal with clean hands, which requires that the present application be dismissed outright. Further, the agreement dated 01.04.2014 entered into by both the parties is very vague in nature and it does not indicate whether the money paid is towards the full cost value of the commercial space allotted or only for investment. The title says it is an investment agreement. Details such as date of completion of the project, interest component for the investment made by the Applicant, documentation formalities like registration of the property after completion of the project etc are totally missing. In the absence of such details it is very difficult to come to the conclusion whether there is debt and the date on which the debt becomes due."

5. Learned Counsel for the Appellant submits that from the Investment

Agreement dated 01st April, 2014 and subsequent correspondences between

the parties, it is clear that the Corporate Debtor admitted the debt and has

also admitted that the Appellant has invested the above said amount in the

project and hence Adjudicating Authority committed error in observing that

there is no debt and no date on which debt became due.

6. It is submitted that amount shall be payable when the Project shall start

paying back.

7. We have considered the submissions and perused the record. The

Investment Agreement dated 01st April.2014 is on record which clearly

mentions that Appellant has invested and paid 75 Lacs which was received by

the Corporate Debtor. The Payment of Rs. 75 Lacs is evidenced by the

Agreement itself. It is submitted that Appellant was allotted 2000 sq. ft. out of

Company Appeal (AT) Ins. No. 711 of 2019 4

which 1000 sq. ft. was sought to be bought back by the Corporate Debtor with

regard to which correspondences were entered.

8. The notice which was issued by the Appellant on 12th July, 2018 was

replied by the Respondent/Corporate Debtor where the Corporate Debtor

clearly admitted the debt and mentioned that Appellant shall be paid. The

Notice dated 12th July, 2018 have been brought on record at page 102 and

Reply of which is at page 106 of the Appeal Paper Book. Paragraph 3 and 10

of the Reply may specifically be noted which provides as follows:

"3. That your client and her husband Late Sh. Subhash Lakhotia, being impressed with the project showed interest in the project and it was offered by them that an amount would be invested in it. The amount to be invested was with the intention to earn interest from this project in proportion of amount invested time to time towards the cost of the project. To secure the investment, an investment agreement was entered. As per the Investment Agreement, the company was to offer a space in the project as a security. There was clear understanding that your client would have no lien over the property and it would remain a security.

10. That your client sent the legal notice relying upon the Agreement executed on 01.04.2014. In the notice your client with dishonest intention concealed the facts that she has already received the interest and Rs. 25,00,000/- through cheque on 18th September, 2015 and same was duly encashed. It was agreed that the remaining amount will be paid by our client only when the project will start paying back."

9. We are of the view that the Investment Agreement as well as the Reply

submitted by the Corporate Debtor itself indicate that the amount was

received by the Corporate Debtor and Corporate Debtor itself say that it has

paid Rs. 25 Lacs and agreed to make payment of the remaining amount when

Company Appeal (AT) Ins. No. 711 of 2019 5

the project shall start paying back, there is clear admission of the debt on

behalf of Corporate Debtor and Adjudicating Authority has committed error

in observing that there is no debt proved by the Appellant. Learned Counsel

for the Appellant has also referred to several materials to indicate that project

is complete and hence payment has become due.

10. In the above conclusion, we are of the view that Adjudicating Authority

has committed error in rejecting the Application. The Impugned Order dated

28th May, 2019 is set aside. Let the Adjudicating Authority pass an order for

admission of the Application within one month from the date when the Order

is produced before the Adjudicating Authority. It shall be open for the parties

to enter into a Settlement during the said period if they so desire.

This Appeal is allowed, accordingly.

[Justice Ashok Bhushan] Chairperson

[Dr. Alok Srivastava] Member (Technical)

Basant/nn

Company Appeal (AT) Ins. No. 711 of 2019