07/08/2018 Delivery | Westlaw India

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Request made on: Tuesday, 07 August, 2018 at 21:39 IST

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Content Type: in-case-tribunals > Tribunals & Commissions
Title : In Re : Ishwar Khandelwal and another
Delivery selection: Current Document
Number of documents delivered: 1

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National Company Law Tribunal

NEW DELHI BENCH

22 March 2017

In Re : Ishwar Khandelwal and another

Case No : Company Application No. (I. B.) 21/PB/2017

Bench : M.M. Kumar (Presidnet), R. Varadharajan (Judicial Member)
Citation : 2017 Indlaw NCLT 172
The Order of the Court was as follows :
1. The above petition has been filed by the petitioner seeking to set in motion the
Corporate Insolvency Resolution Process (IRP) as contemplated under Section 9 of
the Insolvency and Bankruptcy Code, 2016 (Code) in relation to Amrapali
Infrastructure Private Limited (for brevity hereinafter referred to as the Company')
however described in the petition as 'Corporate Debtor'. The petitioner describes
himself as an "Operational Creditor" against the Company. Facts in brief necessary
for disposal of the controversy raised in this petition are as follows:-
(a) The Company is engaged in real estate business including real estate
development. The Petitioner has described itself to be a Sole Proprietary Concern
carrying business under the name and style of Shri Balaji International. It is averred
that Company had been purchasing from the Petitioner various types of steels and
iron goods/ raw materials strictly as per needs, requirements and specifications of
the Company. It is further averred that the Petitioner has been selling to the
Amarpali Group/ Corporate Debtor goods against detailed invoices duly issued by the
Amarpali Group. The following amounts are due or in credit to the Petitioner,
namely:-
1. Amrapali Centurian Park Pvt Ltd, amount due Rs. 56,99,697
2. Amrapali Dream Valley Pvt Ltd amount due Rs. 33,23,527
3. Amrapali Infrastructure Pvt Ltd amount due Rs. 76,31,936
4. Amrapali Leisure Valley Developers Pvt Ltd amount due Rs. 74,95,597
5. Amrapali Princely Estates Pvt Ltd amount due Rs. 33. 223
6. Amrapali Smart City Developers Pvt Ltd amount due Rs. 2,91,685
7. Hitech City Developers Pvt Ltd amount due Rs. 16,454
8. Ultra-Home Construction Pvt Ltd amount due Rs. 51,99,911.44
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9. Amrapali Leisure Valley Pvt Ltd amount credit Rs. 5,40,246

10. Amrapali Silicon City Pvt Ltd amount credit Rs. 91,75,284
11. Amrapali Zodiac Developers Pvt Ltd amount credit Rs. 1,91,482
(b) It is claimed by the Petitioner that in relation to the material supplied out of the
total billing of Rs.1,97,85,018.44 a sum of Rs.10,00 000/ vide cheque bearing No.
966018 dated 27.06.2016 has been paid thereby leaving a balance of
Rs.1,87,85,018.44 and further vide NEFT dated 03.10.2016, the Company has also
deposited a sum of Rs. 3,00,000. Thus in aggregate the Company owes the
Petitioner a sum of Rs.1,84,85,018.44. It is claimed that despite reminders the
Corporate Debtor has failed to pay the balance outstanding. Further the issue of
cheques as discharge for the payment of liabilities, the same has been dishonored
time and again.
(c) That the non-payment of the balance outstanding since July 2016 forced the
Petitioner to serve a notice of demand as contemplated under Section 8 of the Code
through its counsel on 28.01.2017 at the registered office of the Company as well as
through e-mail and till the date of filing of the above petition on 07.03.2017, no
reply has been received despite service nor any payment has been made. This has
given rise to the above petition being filed under the Code for unleashing the
Corporate Insolvency Resolution Process as against the Company.
2. The above petition came to be listed before us on 14.03.2017. At the outset we
are unable to fathom the logic of the Petitioner in trying to enforce so called liabilities
of Amrapali Group, described in some places of the Petition as Corporate Debtor
against one company from the details given in the preceding paragraphs.
It is seen that eleven companies have been named to whom goods is alleged to have
been supplied by the Petitioner and with all of whom it is claimed that running
accounts are being maintained.
3. However when the Counsel for the Petitioner was put forthwith with the query as
to whether he is demanding such amount against one company or against the group
of companies to all of whom it had supplied the materials, the counsel for the
petitioner was not able to answer the paradox.
4. In order to apply the provisions of the Code, it is necessary that it must be
against a corporate person as defined under section 3(7) of the Code who must be
also be a Corporate debtor as defined under section 3(8) of the Code.
5. In the instant case, it is evident that the Petitioner is collectively trying to enforce
liabilities owed by a group of companies (Amrapli Group) against a single Company
which is not given taking into consideration the nature of the Code.
6. Hence the remedy of the Petitioner above named lies elsewhere and not under the
provisions of the Code. Before parting we make it clear that any observations made
in this order shall not be construed as an expression of opinion on the merit of
controversy as we have refrained from entertaining the application at the initial
stage itself.
Therefore, the right of the applicant before any other forum shall not be prejudiced
on account of dismissal of instant application.
7. For the reasons afore stated we reject the application/petition filed by the
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petitioner/operational creditor without any costs.

Petition dismissed
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