Masters Development Management (India) Private Limited vs Team Taurus Realty and Infrastructure Private Limited

,,,,

Harish Chander Suri, Member (Technical)",,,,

The Court is convened by video conference today.,,,,

This petition under section 9 of the IBC has been filed byÂM asters Development Management (India) Private Limited,",,,,

CIN: U70102MH2008PTC187221, a corporate entity, (hereinafter referred as the Operational Creditor), seeking initiation of corporate insolvency",,,,

resolution process in respect of Team Taurus Realty and Infrastructure Private Limited ( For its Sonartori Project) ,CIN:",,,,

U70109WB2012PTC176063,a nother corporate entity, having its registered office at DN 51, Suit# 610, 6th Floor, Salt Lake, Sector V, Kolkata-",,,,

700091 (hereinafter referred as the Corporate Debtor).,,,,

It is submitted that vide orders dated 3rd October, 2019, this Adjudicating Authority had recorded that “It is submitted by the Ld. Counsel for",,,,

the Operational Creditor that the parties have settled the matter but terms of settlement are yet to be finalized. Be that as it may, this matter",,,,

stands disposed of with a liberty to revive the same, if settlement talks fail. CP (IB) No. 1578/KB/2018 stands disposed of. Thereafter, the",,,,

Operational Creditor filed the present I.A No./171/KB/2021 for restoration of the main C.P. The respondents were given three weeks’,,,,

time to comply with the terms of settlement by making payment to the applicant/ Operational Creditorâ€​.,,,,

Thereafter, the matter was adjourned from time to time. Since nobody appeared for the Corporate Debtor on 21st October,2021 and 31st August,",,,,

2021. The application was restored to its original number and the matter was listed for hearing on 13th December,2021, the matter has been taken up",,,,

for hearing .,,,,

This application under section 9 of IBC was filed by Masters Development Management (India) Private Limiteda gainst Team Taurus,,,,

Realty and Infrastructure Private Limited. It is submitted that the principal amount of debt due from the Corporate Debtor to the Operational,,,,

Creditor is Rs.5,62,037/- ( Rupees Five Lakh Sixty Two Thousand and Thirty Seven only) and interest having accrued on the said amount calculated",,,,

@ 18% per annum till 25th September, 2018 is Rs. 1,48,862/-(Rupees One Lakh Forty Eight Thousand Eight Hundred Sixty Two only), thus the total",,,,

amount being Rs.7,10,899/- plus future interest till realization of the amount is stated to be due and outstanding from the Corporate Debtor to the",,,,

Operational Creditor. The Operational Creditor has annexed a tabulated chart showing particulars of the operational debt, as Annexure II-F.The",,,,

Operational Creditor has annexed various documents to prove its case.,,,,

It is submitted that the payment fell due under tax paid Invoices. It is submitted that the terms of the letters of appointment dated 27th February,,,,

2016 and 28th May 2016 and Invoice No. 041642/SP/16-17/13, dated 17th February, 2017 and Invoice No. 041651/SP-LC/17-18/02, dated 1st June",,,,

2017 have been violated. The Operational Creditor has annexed various other documents in order to prove the existence of Operational debt and the,,,,

amount in default.,,,,

Letters of Appointment dated 27th February 2016 and 28th May 2016 (Annexure II-A).,,,,

Copies of Invoices (Annexure II-B):,,,,

i) Invoice No 041642/SP/16-17/13 dated 17th February 2017 to the tune of Rs.3,89,537/- raised in respect of Construction Management Services rendered by the",,,,

Operational Creditor to the Corporate Debtor.,,,,

ii) Invoice No. 041651/SP-LC/17-18/02 dated 1st June, 2017 to the tune of Rs. 1,72,500/-, raised in respect of Landscape Consultancy Services rendered by the",,,,

Operational Creditor to the Corporate Debtor.,,,,

E-mail correspondences issued by the Operational Creditor to the Corporate Debtor. (Annexure II-C),,,,

Copy of Demand Notice dated 25th September 2018 along with tracking report. (Annexure II-D),,,,

Reply to demand notice dated 2nd November 2018 (Annexure II-E).,,,,

Tabular Charts showing the particulars of the operational debt.(Annexure II-F),,,,

Copy of the Bank Statements of Operational Creditor of its account maintained with HDFC Bank for the period between 28th December,2015 to 25th September",,,,

2018. (Annexure III),,,,

The Operational Creditor has annexed Annexure-II-A which is letter dated 27th February, 2016 written by Sonartori Project",,,,

addressed to the Operational Creditor on the “subject: letter of appointment for Construction Management Services whereby, Sonartori Project",,,,

was pleased to appoint Operational Creditor as their construction Manager for their Pather Panchali (PP) plus Phase -1 , Phase -2 ; to take the lead",,,,

for timely completion of project with desired quality standards based on requisite supports from our design management, planning and costs",,,,

management team and procurement team. This letter was duly signed by “a Partner of Sonartori Projectâ€. This letter was duly received,",,,,

confirmed and accepted by Masters Development Management (India) Private Limited (MDM), i.e. the Operational Creditor",,,,

It is submitted that vide another letter dated 17th February 2017 written by Operational Creditor addressed to Sonartori Project, the Operational",,,,

Creditor has written to the addressee, and enclosing therewith Invoice No. 041642/SP/16-17/13 dated 17th February 2017 towards fee for the month",,,,

of February 2017 in accordance with the letter of appointment dated 27th February 2016. This letter has been signed by authorised signatory of the,,,,

Operational Creditor. The Operational Creditor has sent letter dated 17th February 2017 to Sonartori Project along with original Invoice and Invoice,,,,

Annexure, letter dated 1st June, 2016 along with Original Invoice 041642/SP/16-17/13 for an amount of Rs. 10,66,992/-and Original Invoice",,,,

MDMPL/SP-LC/17-18/02 for an amount of Rs.1,57,500/-",,,,

It is submitted that a Demand Notice dated 25th September, 2018 was written by the Operational Creditor to the Corporate Debtor. In the body of",,,,

the Demand Notice, the Operational Creditor has stated that “the Principal Amount of debt due fromT eam Taurus Realty and Infrastructure",,,,

Private Limited (for its Sonartori Project), Corporate Debtor†to Masters Development Management (India) Private Limited (MDM),",,,,

Operational Creditor is Rs. 5,62,037/- The Operational Creditor is itself describing Sonartori Project as Corporate Debtor. The Invoices dated 17th",,,,

February, 2017 and 1st June 2016 have also been issued in the name of Sonartori Project. Similarly, all other Invoices issued by the Operational",,,,

Creditor are in the name of the Sonartori Project and admittedly the work was done for Sonartori Project. It is stated to be a partnership firm, but the",,,,

Demand Notice has been issued on the Team Taurus Realty and Infrastructure Private Limited. It would be seen that reply dated 2nd,,,,

November, 2018 to the Demand Notice was also sent by Sonartori Project. It would be further seen from Annexure- II F (Ext.A) that all the",,,,

payments have been made by Sonartori Project after deduction of TDS from the amount due to the Operational Creditor.,,,,

It is pertinent to mention that letter dated 27th February 2016, Annexure-II A is the foundation of the dealings between the parties. This is a",,,,

letter of appointment for Construction Management Services, for which, the Sonartori Project appointedM asters Development Management",,,,

(India) Private Limited (MDM), the Operational Creditor herein. This letter deals with all the terms and conditions of the agreement to be adhered",,,,

to by and between the two parties. The Corporate Debtor herein i.e. Team Taurus Realty and Infrastructure Private Limited does not find,,,,

mention in this letter of appointment. Similarly, letter dated 28th May 2016 also is a letter of appointment for Landscape Consultancy Services, for",,,,

which the quotation of the Operational Creditor was accepted by Sonartori Project and the Operational Creditor was appointed as the Landscape,,,,

Consultant for Landscape design, design development and preparation of CFCs and other details for 6.08 Acres of land of Pather Panchali Project.",,,,

Date,Cheque No.,Payer,Payee,"Amount

(Rs.)

05 August 2020,"451917

Axis Bank","Sonartori

Projects","Masters

Development

Management

(India)Â Private

Limited","1,56,093.00

05Â Â Â September

2020","451918Â Â Â Axis

Bank","Sonartori

Projects","Masters

Development

Management

(India) Private

Limited","1,78,539.00

Limited,,,,

It is further submitted by the Operational Creditor/ applicant that the aforesaid cheques were issued by the Corporate Debtor for making payment,,,,

of the outstanding dues of the Operational Creditor. It is submitted that all the cheques were dishonoured by the Bank due to ‘insufficient,,,,

funds’. On closure scrutiny of this averment of the Operational Creditor, it is found that even these three cheques bearing",,,,

no. 451917 dated 5th August 2020, 451918 dated 5th September, 2020 and 451917 dated 5th October, 2020 drawn on Axis Bank were given to the",,,,

Operational Creditor by Sonartori Project and not by the Corporate Debtor.,,,,

Even though the application was revived on the prayer of the Operational Creditor to decide the issue involved on merits, but we find that the",,,,

Operational Creditor actually had transaction only with the Sonartori Project which is a separate entity i.e. duly registered partnership firm and the,,,,

Corporate Debtor did not have any connection as regards these transactions, for which appointment letters had been issued to the Operational",,,,

Creditor and the work was assigned by Sonartori Project only. Even the payments were being received by the Operational Creditor from Sonartori,,,,

Project, and even after settlement, the three cheques were issued by Sonartori Project.",,,,

Unfortunately the Operational Creditor was not well advised when it issued demand notice under section 8 of the Code in the name of the,,,,

Corporate Debtor herein, which is a separate company and has no relationship with the Sonartori Project which is the main Debtor if at all. The",,,,

Operational Creditor should have served the demand notice on the Sonartori Project i.e partnership firm and should have proceeded against the same,,,,

for recovery of dues before the appropriate forum instead of taking a so-called easy route to recover its money from the Corporate Debtor named in,,,,

this petition.,,,,

We have gone through the pleadings and the documents filed on record by the parties and are of the considered view that this petition under,,,,

section 9 of IBC would not survive as against the Corporate Debtor herein i.e. Team Taurus Realty and Infrastructure Private Limited and the same,,,,

is hereby rejected.,,,,

The Operational Creditor, however, shall have the liberty to proceed against the Sonatori Project for recovery of its dues before the appropriate",,,,

Forum/ Court if permitted under law.,,,,

With these directions C.P.(IB) No.1578/KB/2018 is dismissed.,,,,

Registry is hereby directed to communicate the order to the Operational Creditor, the Corporate Debtor, the I.R.P. and the jurisdictional Registrar",,,,

of Companies by Speed Post as well as through email.,,,,

Certified copy of the order may be issued to all the concerned parties, if applied for, upon compliance with all requisite formalities.",,,,

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