Shiksha Devi vs Mascot Homes Pvt. Ltd

Dr. V.K. Subburaj, Member (T)

This is an application filed by Shiksha Devi ("Applicant") invoking the provision of Section 7 of Insolvency and Bankruptcy Code, 2016 ("the Code") against Mascot Homes ("Respondent") for initiating Corporate Insolvency Resolution Process ("CIRP") against the Respondent on the basis of a claim for Rs. 78,50,000/-.

The Applicant has averred as follows:

a. The Applicant agreed to finance Respondent as per Memorandum of Understanding dated 15.12.2015 and paid sum of Rs. 50,00,000/- with interest at the rate of 3% per month to be repayable after 12 months. The Respondent agreed to provide security by mortgage of property measuring 999 sq. ft. in Manorath.

b. The Respondent issued post-dated cheques to the Applicant but the cheques were not encashed by the Applicant. The Applicant sent legal demand notice dated 04.05.2018 demanding repayment of the outstanding amount. The notice was returned with the remark 'no such person at the address'. A legal notice through email dated 29.08.2018 was also sent to the Respondent by the Counsel of the Applicant.

c. As no repayments were received from the Respondent, the Applicant filed the present application.

The Respondent had been proceeded against ex-parte vide order dated 25.10.2018 but subsequently, pursuant to an application filed by the Respondent for setting aside the order dated 25.10.2018, the Respondent was allowed to file its reply vide order dated 22.01.2019. The Respondent in its reply has opposed the application on the following grounds:

a. The Applicant has shown no basis for claiming Rs. 78,50,000/- from the Respondent. The Applicant has only annexed her bank statements which reveal that she made a payment of Rs. 5,00,000/- to the Respondent. No documents have been produced to show the payment of the remaining Rs. 45,00,000/- to the Respondent by the Applicant. Further, it is a mandate of income tax laws that no dealing in cash over Rs. 25,000/- can be made without written permission from the Income Tax Dept.

b. Sometime between 2013-15, the Respondent had approached the Applicant for a loan of Rs. 50,00,000/- pursuant to which the Applicant had transferred Rs. 5,00,000/- by way of cheque No. 59055 dated 06.02.2013 drawn on Punjab National Bank. The Respondent followed up with the Applicant for the remaining amount of Rs. 45,00,000/- but such amount was never transferred by the Applicant to the Respondent.

c. Thereafter, the Applicant suggested to the Respondent that the parties should enter into a MoU pursuant to which the Applicant would disburse the amount of Rs. 45,00,000/-. Thus, the Respondent in good faith entered into the MoU dated 15.12.2015. However, no payments were made by the Applicant to the Respondent even after entering into the MoU.

d. Subsequently in January 2017 the Applicant approached the Respondent and requested that the amount of Rs. 5,00,000/- advanced by the Applicant to the Respondent be adjusted against the payment for two flats in the Neotown Project being developed by the Respondent on Plot No. GH-03, Tech Zone IV, Greater NOIDA (West), Uttar Pradesh. Consequently, two flats being Flat No. 1004 and Flat No. 1401 were booked in the name of the Applicant in Block A-3 of Neotown Project and the amount of Rs. 5,00,000/- was adjusted on pro-rata basis against both the flats. Consequent to adjusting an amount of Rs. 5,00,000/- against both the flats a sum of Rs. 17,97,000/- was due and payable from the Applicant for each of the booked flats totaling to around Rs. 35,94,000/- which has not been paid till date.

e. The Respondent issued a notice dated 20.09.2018 to the Applicant but no response was received from the Applicant. Thus, the Respondent filed a criminal complaint with the Senior Superintendent of Police, Noida on 06.11.2017.

The Applicant has annexed the MoU to its application. However, the MoU has not been signed by the Applicant but only contains the Respondent's signature. Further, the MoU in Clause 1 states that Rs. 50,00,000/- has been received by the Respondent on 15.12.2015 and that the Respondent has acknowledged the receipt on its company letter head. It has been stated in the Form 1 that the sum of Rs. 45,00,000/- had been paid on 15.12.2015 and the sum of Rs. 5,00,000/- had been paid on 12.02.2013. The Applicant has made contradictory statements in Form 1 and in the MoU regarding the payments made to the Respondent. Further, the copy of MoU dated 15.12.2015 annexed to the application does not carry the Applicant's signature. Further, neither the receipt on the company letter head nor any other document has been produced to show that a total amount of Rs. 50,00,000/- has been paid by the Applicant to the Respondent. The bank statement of one Mohit Singh has been annexed to the application to show that Rs. 5,00,000/- has been paid vide cheque number 90783 to the Respondent by Mohit Singh. However, the present application has been filed Shiksha Devi and even the MoU carries only Shiksha Devi's name, and Mohit Singh who has actually advanced the sum of Rs. 5,00,000/- is neither the applicant herein nor a party to the MoU dated 15.12.2015. Thus, several doubts arise regarding the transaction underlying the present proceedings.

The Respondent in its reply, apart from denying that the balance amount of Rs. 45,00,000/- was paid to him, has also said that the amount of Rs. 5,00,000/- has been set off against the cost of two flats booked by the Applicant with the Respondent in its Neotown Project. The MoUs for the two flats have been placed on record but according to the MoUs the payment of Rs. 5,00,000/- was made vide cheque number 590555, which is different from the cheque number shown by the Applicant in its bank statement, thus, it cannot be concluded if the sum of Rs. 5,00,000/- advanced as loan and the sum of Rs. 5,00,000/- being treated as payment for the flats are the same transaction or not.

However, in view of the observations made in paragraph 4 above, this Tribunal is not convinced that the Applicant is a financial creditor of the Respondent or any financial debt is owed by the Respondent to the Applicant. Thus, the present application is dismissed with no costs.