M.K. Shrawat, Member - (1.) This Petition has been moved by the "Operational Creditor" viz. Mr. Ravindra Gopal on 09th March 2017 on Form No. 5 under section 9 of the Insolvency & Bankruptcy Code 2016 (in short "The Code" hereinafter), to be read with Rule 6 of Insolvency & Bankruptcy (Application to Adjudicating Authority) Rules 2016 for alleged outstanding debt of Rs. 89,05,400 to be paid by the "Operational Debtor" M/s. Tattva & Mittal Life Spaces Pvt. Ltd. to initiate Corporate Insolvency Resolution Process under The Code.
(2.) Before we proceed to decide the merits of the case it is worth to place on record that when the matter was listed on 17th April 2017, the Operational Debtor had raised the issue of maintainability on the ground that the amount in question being a "disputed amount", hence out of the purview of the provisions of section 9 of The Code. On this legal question claims and counter-claims were made by the respective sides supported by the judgments of different Benches of NCLT. As a consequence, when the decisions of the different Benches are expressing divergent views, this Bench had referred the matter to the Hon'ble President for constitution of a larger Special Bench. However, later on it was found that this very legal issue of "Dispute" is sub-judice before the respected NCLAT, Delhi Bench and some of the cited decisions are challenged before the Appellate Authority, hence matter was adjourned awaiting the decision of the Hon'ble Appellate Authority. Now few decisions on the said controversy have been pronounced by NCLAT so it is appropriate to finalise this Petition. Herein below now proceed to discuss the merits of the case and thereafter deal with the legal question raised, in the light of the judgments now in hand pronounced by the Hon'ble Appellate Authority.
(3.) Facts of the case, in short, are that the Petitioner, a professional, is a Proprietor of Avon Capital Services, engaged in providing Financial & Management Services to arrange Corporate Finance or Investment Bankers. The Respondent Debtor is in the business of real estate, working as Builders and Developers of building construction projects. On 07th January, 2016, as claimed by the Petitioner, an Agreement/Engagement letter was executed engaging him for Advisory and Capital Raising Services. The Company had appointed Avon Capital as an exclusive advisor to assist in the introduction of one or more financial strategic partners to the company. In the said Engagement Letter, a schedule was made on the basis of which the fees was to be charged by the Petitioner for the services rendered. It is claimed before us that a retainer fees of Rs. 5 lakhs was also fixed, payable in advance on 1st of every quarter for a period of one year. The Petitioner had issued an invoice on 1st February 2016 towards professional fees for an amount of Rs. 5,72,500 for the quarter beginning from 1st February, 2016. Admitted position is that the Petitioner was paid a sum of Rs. 5,15,250 by way of Cheque on 1st March 2016 drawn on ICICI Bank after deducting TDS of Rs. 57,250. Thereafter, on 01-05-2016 Petitioner issued another invoice dated 1st May, 2016 for professional fees for the quarter beginning from 01-05-2016 for an amount of Rs. 5,72,500. On 25-07-2016. It is alleged that a term sheet was executed between the Respondent Company and a Financer viz. Milestone Capital Advisors Limited. Again on 01-08-2016 an invoice for retainer fees was raised of Rs. 5,75,500. Further, on 01-08-2016, the Petitioner has charged appointment fees of Rs. 3,45,000 pertaining to the alleged introduction of financer i.e. Milestone Capital Advisors. The Petitioner had received an email on 14-09-2016 instructing therein an accountant Mr. Vinayak to settle the dues. Side-by-side the Respondent Company had terminated the services of Mr. Ravindra Gopal, (Petitioner). On 27-09-2016 the Petitioner issued a professional fee invoice as drop dead fees for an amount of Rs. 74,12,900. On 14-01-2017 Petitioner issued Form No. 3, a notice of demand for payment under The Code demanding the payment of Rs. 89,05,400. The Petitioner has alleged that even on service of Form No. 3 (Demand Notice) the Respondent had not paid the outstanding debt, hence this Petition. 3.1 The documents annexed have also been examined. As prescribed under section 8 of The Code, the Creditor had delivered a Demand Notice on Form No. 3 under Rule 5 of Adjudicating Authority Rules, 2016. The Petition contains list of unpaid invoices. The impugned "Engagement Letter" dated 07-01-2016 is also on record. An unsigned letter of 25th July, 2016 is also annexed, stated to be from the side of an investor proposing an investment of Rs. 30 crores for two residential projects developed by M/s. Tattva Mittal Group (Respondent). However, it is pointed out that the said letter was not written to the respondent i.e. Tattva & Mittal Lifespace Pvt. limited, but the term sheet was executed between Tattva & Mittal Corporation Pvt. Ltd. The proposed Investment Amount by the investor was claimed to be Rs. 30 crores in the said company. The compilation has contained a letter of 14-09-2016 through which it was intimated that the Petitioner was retained for the said last month and informed that his service was not needed any more, it was intimated that for the fourth quarter the petitioner is not retained for the services. It was also intimated that if and when any of the leads viz. Milestone or SICOM would be closed, the commission would be calculated.;