Substantia Capital Services Llp vs Neelkanth Realtors Pvt. Ltd

Substantia Capital Services LLP ...Appellant

Vs.

Neelkanth Realtors Pvt. Ltd. ...Respondent

Present: For Appellant: - Mr. Anandini Kumar and Mr. Rohan Deshpande, Advocates.

For Respondent: - Mr. Darpan Wadhwa, Senior Advocate with Mr. Kush Chaturvedi, Mr. Aman Varma, Ms. Smriti Churiwal, Ms. Priyashree Sharma and Ms. Cauveri Birbal, Advocates.

O R D E R

06.05.2019─ The Appellant who claimed to be 'Operational Creditor'

filed application under Section 9 of the Insolvency and Bankruptcy Code,

2016 ("I&B Code" for short) against 'M/s. Neelkanth Realtors Private

Limited'- ('Corporate Debtor'). The Adjudicating Authority (National

Company Law Tribunal), Mumbai Bench, Mumbai, rejected the

application by impugned order dated 31st August, 2018 on different

grounds.

2. Learned counsel appearing on behalf of the Appellant submitted

that the application under Section 9 filed was maintainable, the Appellant

Contd/-.............

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having rendered services, but we are not going into the question of

maintainability as we only look into the question as to whether there was

a debt and/ or there is an existence of dispute.

3. The claim of the Appellant is that it facilitated the 'Corporate

Debtor' to get loan from the 'Financial Creditor' and is entitled for its fee

(fee as an agent/ facilitator) which has not been paid since 2015. There

being a default the application under Section 9 was filed.

4. Learned counsel appearing on behalf of the Respondent referred to

a letter dated 28th October, 2016 to suggest existence of dispute, prior to

notice under Section 8 of the 'I&B Code'.

5. Learned counsel for the Appellant referring to the decision of the

Hon'ble Supreme Court in "Mobilox Innovations Private Limited v.

Kirusa Software Private Limited (2017) 4 CompLJ 255 (SC)" submits

that the dispute set up by the Respondent is a mere bluster. However, we

are not accepting such submission in view of the specific dispute raised

by the Respondent by letter dated 28th October, 2016. Relevant part of

which reads as follows:

"VP/3903/3340/2016

28th October, 2016 Iyers Chambers, Advocates for Substantia Capital Services Pvt. Ltd. No.9, "Sarayu" Ground Floor, Company Appeal (AT) (Insolvency) No. 697 of 2018 -3-

Plot No. 561/562, 11th Road, Chembur Mumbai 400 071

Dear Sir, Ref: Your letter/ legal notice dated 6th October, 2016

xxx xxx xxx

6. Between 2014 and 2015, your client had

purportedly made various efforts in furtherance of the

appointment letter by presenting deal for debt funding

and refinancing of the said project to various financial

institutions. However, your client failed to close any

deal for debt funding and refinancing and/or to obtain

a final term sheet from any of the institutions

purportedly approached by your client.

7. In or around July, 2015, one Mr. Rajnish

Changrani, the Director of your client had informed our

client of the inability to conclude financing

arrangement with any of the institutions purportedly

approached by your client, including Edelweiss

Finance Ltd., in respect of whom it is claimed in the

letter under reference that a deal was closed and

Company Appeal (AT) (Insolvency) No. 697 of 2018 -4-

funding as required, was obtained, entirely due to the

efforts of your client which is completely contradictory

to the situation in the year 2015 and the statement

made by the Director of your client. At that time, Mr.

Chagnani also informed Mr. Bhavik Bhimjyani that he

should consider alternate back up financing options

since he was not in a position to conclude the financing

with Edelweiss as originally promised."

6. As we find that there is a pre-existing dispute, we hold that the

application under Section 9 was not maintainable. The appeal is

accordingly dismissed. No costs.

(Justice S.J. Mukhopadhaya) Chairperson

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

Ar/g

Company Appeal (AT) (Insolvency) No. 697 of 2018