Sunjeet Communications Pvt Ltd vs Rashmi Metro Homes Llp

Sunjeet Communications Pvt. Ltd. ...Appellant

Versus

Rashmi Metro Homes LLP Respondent

Present: For Appellant: Mr. R. Sudhinder, Ms. Aastha Trivedi and Mr. Sanidhya Sonthalia, Advocates. For Respondent: Mr. Dhaval Deshpande, Advocate for R-1.

ORDER

20.09.2023: Heard learned counsel for the parties. This Appeal has been

filed against order dated 11.01.2023 passed by the Adjudicating Authority by

which Section 9 application filed by the Appellant has been rejected as not

maintainable.

2. Brief facts of the case are that Operational Creditor has filed Company

Petition on 16.01.2021 under Section 9 claiming Principal Amount of

Rs.2,66,74,085/- alongwith interest.

3. The case of the Appellant - Operational Creditor is that default was

committed on 11.03.2017 and thereafter the Operational Creditor and

Corporate Debtor entered into MOU on 18.01.2018 under which certain flats

were allocated and promised to deliver the same. Section 9 application was

filed claiming that default from March, 2017 is continuing and the MOU was

not implemented. It was further stated that cheques issued were also not -2-

honoured. The Adjudicating Authority took the view that in view of the MOU

previous default dated 11.03.2017 does not survive and the present petition

is not maintainable.

4. Learned counsel for the Respondent submits that in view of the MOU,

the application has rightly been rejected.

5. We have considered the submissions of learned counsel for the parties

and perused the record.

6. When we look into the part IV of the application, the following

statements have been made:

2. Amount claimed to Amount claimed to be in default:

be in default and the date on which Principal Amount: Rs. 2,66,74,085/- the default occurred Interest due till 07.01.2021: Rs.2,07,12,198/-

(attach the workings for ----------------------- computation of Rs. 4,73,86,283/- amount and dates =============== of default in tabular form) (Rupees Four crores seventy three lacs eighty

six thousand two hundred eighty three only) As per statement enclosed as Annexure- VI hereto plus further interest @18 % per annum from January 08, 2021 till payment/realization.

Date on which default occurred:

The debt is due from the date of each outstanding invoice issued from March 11, 2017 and is continuing since then.

Company Appeal (AT) (Insolvency) No.371 of 2023 -3-

7. The default which is claimed is from 11.03.2017 which is said to be

continuing. The MOU was an intermediate step to deal with the default and

it is categorical case of the Operational Creditor that MOU was not

implemented and even cheques given to the Operational Creditor were not

honoured. We, thus, are of the view that default which was committed on

11.03.2017 is still continuing and original default could not be wiped out by

the MOU.

8. It was categorical case that Corporate Debtor has not complied with its

commitment and the total outstanding debt is there as indicated in the

application. We are of the view that the Adjudicating Authority committed

error in rejecting Section 9 application as not maintainable. In result, we allow

the Appeal. Set aside order dated 11.01.2023 and revive the Section 9

application before the Adjudicating Authority to be heard and decided afresh

in accordance with law.

[Justice Ashok Bhushan] Chairperson

[Barun Mitra] Member (Technical)

[Arun Baroka] Member (Technical) Archana/nn

Company Appeal (AT) (Insolvency) No.371 of 2023