Page 796 - IBC Orders us 7-CA Mukesh Mohan

Order Passed under Sec 7
By Hon’ble NCLT New Delhi-II Bench
(Pre-TDS). Increase of 15% every subsequent year till 2014 was also agreed upon. As per the said

agreement dated 08.10.2008, the Corporate Debtor undertook to compensate/ pay a penalty of Rs. 42
lakhs in the event of the project not being completed.

3. The Financial Creditor submits that as the Corporate Debtor failed to deliver, he invoked the claim
under their agreement. The dispute for recovery of Rs. 42 lakhs as compensation /penalty, culminated in
an agreement dated 26.06.2014 for a total settlement of Rs. 30,69,000/-. It is also submitted that pursuant

to this agreement a charge was formally registered with the office of the ROC. It was also undertaken that
w.e.f. 1.06.2014, interest @ 12.5% would be payable on the aforesaid amount which shall stand enhanced

to 15% in case of any default.

Relying on this agreement and on the basis of certain cheques received in furtherance thereof, the

petitioner claims himself to be a financial creditor. To substantiate the allegations of assured returns, he
has filed his Form 26AS of the Income Tax to show that in acknowledgment of the outstanding liability
towards payment of the interest, the Corporate Debtor had been deducting the TDS and depositing the

same under Section 194A (interest other than securities). The post-dated cheques given in discharge of the
interest liability towards the assured returns were dishonoured upon presentation for which a legal notice
under Section 138 of the Negotiable Instrument Act was served not only on the Corporate Debtor and its

Directors but also on M/s Maruti Realtors, the initial entity to have entered into the transactions.

4. It is also submitted that in terms of the agreement, the dispute with respect to the recovery of the

outstanding liability was referred to the named arbitrator. It is the financial creditor's submission that the
Corporate Debtor refused to submit to the jurisdiction of the arbitrator, categorically denying any
agreement for arbitration. It is submitted that as no arbitration proceedings are pending, the petitioner as

financial creditor is entitled to initiate the insolvency proceedings.

5. The Respondent on being served with the notice of the present proceedings appeared and has contested

the claim. Ld. Counsel has submitted that as against the initial payment of Rs. 10.5 lakhs, they have
already remitted a sum of Rs. 22,77,429/- i.e. excess payment of Rs. 12,27,429/- over the principal

amount. It is also stated that a FIR has been registered with the PS, Gautam Budh Nagar against the
petitioner herein making allegations that inspite of having received their initial amount the petitioner and
his family are threatening to misuse the blank cheques given by way of security.

Given the facts of the case, this Bench is not satisfied that the case of the petitioner falls squarely
within the definition of a "financial debt". The initial transaction was for purchase of a proposed project

by M/s Maruti Realtors. The obligation of M/ s Maruti Realtors was taken over by the Corporate Debtor

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