R Varadharajan, Member - (1.) Dpl Builders Pvt Ltd. is the Corporate Debtor in the above Petition and Ms.Anubhuti Aggarwal claiming herself to be a Financial Creditor has filed this Petition under Section 7 of Insolvency & Bankruptcy Code, 2016 (IBC,2016) seeking to set in motion Corporate Insolvency Resolution Process (CIRP) as envisaged under IBC,2016 as well as Attendant Rules/ Regulations framed thereunder against the Corporate Debtor. The claim giving rise to the above Petition from the facts narrated in the Application/Petition are as follows;-. That on 18.6.2015 the Financial Creditor had invested a sum of Rs.25,00,000/- vide cheque No. 048631 drawn on Punjab National Bank with the Corporate Debtor in relation to the development of project PDL Flora Heritage at 16B,Sector-l, Greater Noida (West) . It was assured by the Corporate Debtor of repayment and that as a collateral security flat No.B-1, 904 to the extent of 1292 sq.ft. was also given. An unconditional guarantee was also given for the buy back of the said flat at a pre-settled and determined sum of Rs.31,00,000/- in relation to which post dated cheques were also given commencing from 22.09.2016.Based on the specific request of the Corporate Debtor it is averred by the Financial Creditor that the said post dated cheques were not encashed. However, on 10.04.2017, the oral understanding based on which the investments were made was formalised and reduced into writing and signed by both parties and post dated cheques No. 792979 for Rs. 1,50,000/-dated 22.03.2017 as well as cheque bearing No. 792978 dated 22.06.2017 for a like amount issued in relation to agreement dated 10.04.2017 were dishonored for want of sufficient funds. Again, cheque No. 792973 for Rs.25,00,000/-also suffered the same fate. Consequent to the dishonor of cheques, a notice was sent to the Corporate Debtor on 08.07.2017. However, there has been no response to the said notice even though it was sent to the registered office of the Corporate Debtor which has forced the Financial Creditor, in view of default, to approach this Tribunal by way of this Application filed on 24.08.2017. In part III of the Application, Financial Creditor has named one Mr. Kanwal Chaudhary as the Interim Resolution Professional (IRP) who is registered with registration No. IBBI/IPA-002/IP-N00207/2017-18/10661 with Insolvency and Bankruptcy Board of India and having his address at EA-413,Maya Enclave, New Delhi-110 064. In support of Application, the Petitioner has annexed mutual agreement dated 10.04.2017 as Annexure-B, cheques which had been dishonored by the Corporate Debtor along with return memos as Annexure-C, a copy of the bank statement of the Financial Creditor as Annexure-D, a copy of the Demand Notice dated 08.07.2017 alongwith postal receipts as Annexure-E and finally a written communication by the proposed IRP in Form 2 of Insolvency and Bankruptcy(Application to the Adjudicating Authority) Rules, 2016 for brevity 'AAA' Rules, as Annexure-F. Further, master data of the Corporate Debtor, as reflected in the Ministry of Corporate Affairs website has also been filed as Annexure-A to the typed set filed along with the Application.
(2.) Upon notice to the Corporate Debtor, Corporate Debtor has entered its appearance and filed its reply by way of counter affidavit to which the Petitioner has also filed a rejoinder affidavit. On completion of the pleadings, the matter was taken up for final disposal by this Tribunal on 21.11.2017.
(3.) At the time of oral submissions, Ld. Counsel for the Petitioner took this Tribunal through the mutual agreement annexed as Annexure-B dated 10.04.2017 and strenuously contended that taking into consideration the provisions of the said agreement, the Petitioner can be classified as a Financial Creditor and the debt which is claimed as due from the Corporate Debtor as a financial debt. In this connection, attention of this Tribunal was more particularly drawn to clause 4 of the said agreement.;