National Company Law Appellate Tribunal
Kush Kochgaway & Ors vs Bestech India Private Limited on 29 July, 2022
NATIONAL COMPANY LAW APPELLATE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
Company Appeal (AT) (Insolvency) No.844 of 2022
IN THE MATTER OF:
Kush Kochgaway & Ors. ...Appellants
Versus
Bestech India Pvt. Ltd. ...Respondent
Present:
For Appellants: Mr. Piyush Singh and Ms. Aditi Sinha, Advocates.
For Respondent: Mr. Virender Ganda, Sr. Advocate with Mr. Vipul
Ganda, Ms. Guresha Bhamra and Ms. Akanksha
Mathur, Advocates.
ORDER
(Virtual Mode) 29.07.2022: Heard learned counsel for the Appellant. Shri Virender Ganda, learned senior Counsel appears for the Respondent. This Appeal has been filed against the order dated 25.05.2022 passed by the Adjudicating Authority (National Company Law Tribunal), New Delhi Bench VI in I.A. No. 2579/2021 in an application filed under Section 7 by the Appellant.
2. Appellant who are Homebuyers filed application under Section 7 claiming default of amount of Rs.9,25,18,020/- which was claimed to be collected from the homebuyers as external development charges (EDC). On Section 7 application the notices were issued and Corporate Debtor was asked to submit the Reply. Corporate Debtor filed an application being I.A. No. 2579/2021 praying for dismissal of Section 7 application and further praying Cont'd.../ 2 for initiating process for punishment against the Applicants for malicious prosecution.
3. The application was heard by the Adjudicating Authority and by impugned order application under Section 7 was rejected on the ground that the claim filed by the Appellant is barred by limitation. The Adjudicating Authority in the impugned order has returned the finding that reply of RTI by which information was obtained by the Appellant regarding the excess EDC charges was dated 18.06.2016 whereas application was filed beyond three years on 17.12.2020. In Para 9 of the judgment, the Adjudicating Authority has made following observations:-
"9. On the issue of limitation, the date of default is calculated from the date when the default occurs, in the present case since the non-applicant pleaded that the date of default should be taken from the date when the legal notice was issued i.e. 13.03.2018 and not from the date of knowledge of excess EDC charged by the CD, is not tenable. The non-applicant/ petitioner had the knowledge of the excess EDC charge from reply of RTI dated 18.06.2016 and the petition was filed in 17.12.2020, the default has occurred over 3 (three) years from the date of filing of the petition, hence, the petition is barred under Article 137 of the Limitation Act, 1963."
4. Learned counsel for the Appellant submits that the Adjudicating Authority committed error by not adverting to the MOU entered between the parties on 25.12.2018, which MOU clearly indicates that there shall be Company Appeal (AT) (Insolvency) No. 844 of 2022 3 extension of limitation under Section 18 of the Limitation Act, hence, the application was not barred by time.
5. For considering the above submissions, we may first notice the claim of the Applicant filed under Section 7 application. Part IV of the Section 7 application which deals with the particulars of financial debt is as follows:-
Part IV PARTICULARS OF FINANCIAL DEBT
1. TOTAL AMOUNT OF Total Claim Due and Payable -
DEBT GRANTED Rs.9,25,18,020/- (Rupees Nine Crores DATE(S) OF Twenty Five Lakhs Eighteen DISBURSEMENT Thousand Twenty Only) That the present Application is being filed by residents of the Project Bestech India Private Limited who have purchased Units in the project developed by the Corporate Debtor herein, namely 'Park View Spa Next' situated at Sector - 67, Gurgaon, Haryana [hereinafter to be referred as the "Project"]. A Summary of details of all the Financial Creditors is attached herein and marked as Annexure P-1.
That the default amount is accrued due to the following breach by the Corporate Debtor namely:-
Company Appeal (AT) (Insolvency) No. 844 of 2022 4 The External Development Charges (EDC) collected from the home buyers is in excess of the EDC charges paid by the Corporate Debtor to the statutory authorities hence the excess amount has not been refunded to the Association of Home buyers as per law, despite repeated requests.
Principal Amount in Default --- Rs.
3,31,47,235 /- (Rupees Three Crores Thirty One Lakhs Forty Seven Thousand Two Hundred Thirty Five Only) Interest Amount in Default --
- Rs. 5,93,70,785 /- (Rupees Five Crores Ninety Three Lakhs Seventy Thousand Seven Hundred Eighty Five Only)
6. In the application the claim of the Appellant is that EDC charges were recovered from the Appellants in excess to what was paid to the statutory authorities, hence, they are entitled to recover the same. By the RTI information about excess EDC Charges was obtained by the Appellant in 2016.
7. Now we come to the MOU which is claimed to provide for benefit of extension of limitation under Section 18 of the Limitation Act. The relevant clause of the MOU which has been referred to by the learned counsel for the Appellant is at Para 15 of the MOU, which is to the following effect:-
Company Appeal (AT) (Insolvency) No. 844 of 2022 5 "15. The Association further confirms that nothing over and above an amount of Rs.4,48,53,018/- (IFMS) is liable to be refunded/paid/payable by the Maintenance Agency to the Association or any of the residents/occupants/allottees in the complex in any regard whatsoever.
The payment plan for Rs.4,48,53,018/- agreed to would be as under:-
Rs.1 Crore vide HDFC Bank Cheque No. 000013 Dated 24th December 2018 (On execution of the MOU) Balance amount to be paid on quarterly based installments, subject to confirmation from DHBVNL that the entire liability (including replacing Bank Guarantees of Developer with the Bank Guarantees of PVSNCA) towards upgradation of 33KVA sub station has been passed upon the Association and acceptance of the same by PVSNCA in this regards in...."
8. A bare perusal of Clause 15 of the MOU which has been relied by the Appellant indicates that such amount is with regard to IFMS which has to be refunded by the Maintenance Agency to the Association. The acknowledgement under Section 18 which gives benefit of extension of limitation has to be acknowledgement of the same debt which has been claimed. We have noticed that in Part IV of the application under Section 7 the amount claimed is the amount of excess EDC charges whereas MOU was for different subject. Hence, the amount which is referred to in MOU does not to be read as debt acknowledged within the meaning of Section 18 of the Limitation Act which can be relied for extension of the limitation. Company Appeal (AT) (Insolvency) No. 844 of 2022 6
9. We, thus, are of the view that the Adjudicating Authority rightly rejected the Section 7 Application as barred by limitation. There is no merit in the Appeal. Appeal is dismissed.
[Justice Ashok Bhushan] Chairperson [Justice M. Satyanarayana Murthy] Member (Judicial) [Barun Mitra] Member (Technical) Archana/nn Company Appeal (AT) (Insolvency) No. 844 of 2022