National Company Law Appellate Tribunal
Rajan Goyal vs Sharad Vadehra on 2 September, 2019
NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Company Appeal (AT) (Insolvency) No. 173 of 2019
IN THE MATTER OF:
Mr. Ranjan Goyal ...Appellant
Vs.
Sharad Vadehra ...Respondent
Present: For Appellant: - Mr. Vivek Sibal, Mr. Rahul Sharma and Mr. Yash Patel, Advocates.
For Respondent: - Mr. Vipul Srivastav and Mr. Aditya, Advocates.
O R D E R
02.09.2019─ The Respondent- 'Sharad Vadehra, allottee ('Financial
Creditor') filed an application under Section 7 of the Insolvency and Bankruptcy Code, 2016 ("I&B Code" for short) against 'M/s. Homestead Infrastructure Development Pvt. Ltd.'- ('Corporate Debtor'). The Adjudicating Authority (National Company Law Tribunal), New Delhi Bench, by impugned order dated 14th January, 2019, admitted the application giving rise to the present appeal preferred by Shareholder.
2. Learned counsel appearing on behalf of the Appellant submits that there was no such agreement between the Respondent- ('Financial Creditor') and 'M/s. Homestead Infrastructure Development Pvt. Ltd.'- ('Corporate Debtor'). The Respondent- ('Financial Creditor') is an allottee of one 'M/s. Golden Peacock Residence Private Limited'. 2
3. On the other hand, learned counsel for the Respondent- ('Financial Creditor') referring to the records, including the Agreement reached between different parties, submitted that 'M/s. Golden Peacock Residence Private Limited' is 100% subsidiary of 'M/s. Homestead Infrastructure Development Pvt. Ltd.'- ('Corporate Debtor') and both, in consortium, reached an Agreement with 'M/s. Raheja Developers Limited' for development of land, pursuant to which the Respondent, allottee ('Financial Creditor') received Demand Notice on behalf of 'M/s. Homestead Infrastructure Development Pvt. Ltd.'- ('Corporate Debtor'). The amount was disbursed for consideration of time value of money and receipt was also issued by 'M/s. Homestead Infrastructure Development Pvt. Ltd.'- ('Corporate Debtor').
4. On hearing learned counsel for the parties and on perusal of records, it appears that 'M/s. Homestead Infrastructure Development Pvt. Ltd.'- ('Corporate Debtor') was incorporated on 22nd November, 2011. It constituted a wholly owned subsidiary namely 'M/s. Golden Peacock Residence Private Limited' incorporated on 27th January, 2012. 'M/s. Homestead Infrastructure Development Pvt. Ltd.'- ('Corporate Debtor') along with 'M/s. Golden Peacock Residence Private Limited' made a joint venture by Agreement dated 24th July, 2012 and reached Agreement with M/s. Raheja Developers Limited'.
5. Pursuant to Demand Notice dated 27th August, 2012 issued by 'M/s. Homestead Infrastructure Development Pvt. Ltd.'- ('Corporate Debtor'), disbursed the amount for which different receipts were issued Company Appeal (AT) (Insolvency) No. 173 of 2019 3 by 'M/s. Homestead Infrastructure Development Pvt. Ltd.'- ('Corporate Debtor'). Subsequently, Allotment Letter was issued by 'M/s. Homestead Infrastructure Development Pvt. Ltd.'- ('Corporate Debtor') on 4th January, 2013. Copy of demand letter dated 27th August, 2012 is as follows:
Company Appeal (AT) (Insolvency) No. 173 of 2019 4
6. The receipt of the amount disbursed by the Respondent has been enclosed, one of which is quoted as follows:
Company Appeal (AT) (Insolvency) No. 173 of 2019 5
7. Allotment Letter dated 4th January, 2013 is also under the heading 'Homestead' is extracted below:
Company Appeal (AT) (Insolvency) No. 173 of 2019 6
8. From the aforesaid allotment letter, demand notice, allotment letter and receipt, we find that there is a joint venture between 'M/s. Homestead Infrastructure Development Pvt. Ltd.'- ('Corporate Debtor') and 'M/s. Golden Peacock Residence Private Limited' and, therefore, the Appellant cannot take the plea that 'Homestead' is not a 'Corporate Debtor'.
9. The Adjudicating Authority noticed the relevant facts, including an e-mail dated 7th June, 2014 on behalf of 'M/s. Homestead Infrastructure Development Pvt. Ltd.'- ('Corporate Debtor') asking the 'Financial Creditor' to draw the cheque in the name of 'M/s. Golden Peacock Residence Private Limited', which reads as follows:
"Tanya [email protected] To: Sharad Vadehra [email protected] Dear Mr. Vadehra Greetings for the day, Please find below the RTGS details of Golden Peacock:
Golden Peacock Residence Private Limited A/C No. 912020031148652 IFSC Code: UTIB0000056 Swift Code: AXISINBB056 Bank: Axis Bank Please intimate us with the status as to coordinate with the bank. Warm regards, Tanya Bector."
10. From the aforesaid facts, as we find that 'M/s. Homestead Infrastructure Development Pvt. Ltd.'- ('Corporate Debtor') reached Company Appeal (AT) (Insolvency) No. 173 of 2019 7 agreement jointly with 'M/s. Golden Peacock Residence Private Limited' have entered into the development agreement with 'M/s. Raheja Developers Limited' on 24th July, 2012 and for all purposes it is a joint venture with 'M/s. Golden Peacock Residence Private Limited' who is a subsidiary company and reached agreement with Respondent, but asked to pay the amount to 'M/s. Golden Peacock Residence Private Limited', we hold that the application under Section 7 against 'M/s. Homestead Infrastructure Development Pvt. Ltd.'- ('Corporate Debtor') is maintainable.
11. Learned counsel for the Appellant informed that 'M/s. Raheja Developers Limited' has sold its all the rights to 'M/s. Golden Peacock Residence Private Limited' in the year 2015, but that will not change the complexion of the matter as in place of 'M/s. Raheja Developers Limited', 'M/s. Golden Peacock Residence Private Limited' will be the Developer jointly with 'M/s. Homestead Infrastructure Development Pvt. Ltd.'- ('Corporate Debtor').
In absence of any merit, we dismiss the appeal. No costs.
(Justice S.J. Mukhopadhaya) Chairperson (Justice A.I.S. Cheema) Member(Judicial) (Kanthi Narahari) Member(Technical) Ar/g Company Appeal (AT) (Insolvency) No. 173 of 2019