R. Varadharajan, Member - (1.) Jindal Steel & Power Ltd. representing itself to be an Operational Creditor of DCM International Ltd. has filed this Company Petition seeking to initiate the Corporate Insolvency Resolution Process (CIRP) for alleged default committed by the Corporate Debtor namely DCM International Ltd. in a sum of Rs. 1.00 crore plus interest at 12% per annum. The above amount which is claimed to be in default according to the Operational Creditor arises out of non refund of security deposit amount given by the Operational Creditor to the Corporate Debtor under lease deed dated 13.5.2009 in respect of offices taken on lease at second and third floors of the DCM Building, Institutional Plot No. 94 in Sector-32, Gurugram. It is also represented by the Operational Creditor that in addition to the second and third floors of the above property again by virtue of lease dated 1.9.2009, the first floor of the said building was also taken on lease from the Corporate Debtor. The amounts paid under the aforesaid lease deeds it is represented was given as refundable security deposit of lease and to be of Rs. 1,00,79,750/- and Rs. 59,43,840/- respectively. Operational Creditor represents that in relation to lease deed dated 13.5.2009, the lease of the demised premises was terminated vide letter dated 20.1.2012 and in relation to the premises under lease deed dated 1.09.2009, by virtue of efflux of time, the lease got determined on 30.9.2012 and in the circumstances due to the termination of lease as narrated above, the Corporate Debtor is liable to refund the sums paid as security deposit given at the time of entering into the respective leases by the Operational Creditor.
(2.) Subsequent to the termination of the lease, the Operational Creditor avers that since 2012 it has repeatedly been approaching the Corporate Debtor to refund the security deposit however, without much avail. On 22.7.2014 finally the parties to the Petition it is averred after numerous deliberations entered into a Memorandum of Settlement (MoS) wherein it was agreed between the parties that the Corporate Debtor will refund a sum of Rs. 1.50 crores to the Operational Creditor in 3 installments (i.e.) Rs. 50.00 lakhs to be paid at the time of signing the MoS and the balance amount to be paid in 2 equal installments of Rs. 50.00 lakhs each within a period of 45 days commencing from the date of signing the MoS. The Corporate Debtor it is averred by the Petitioner that while paid a sum of Rs. 50.00 lakhs at the time of signing the MoS, but failed to pay the balance amount in a sum of Rs. 1.00 crore as agreed under the MoS and despite numerous reminders, as the payment was not forthcoming, the Operational Creditor was forced to issue a statutory notice under the provisions of Section 433(e) of the Companies Act, 1956 for winding up the respondent company based on its inability to pay the admitted debt. The above notice it is represented was given on 20.8.2016 by the Operational Creditor to the Corporate Debtor. Since the same did not invoke any response from the Corporate Debtor, the Operational Creditor was forced to issue notice under Section 8 of the Insolvency and Bankruptcy Code, 2016 (for brevity IBC, 2016) wherein a sum of Rs. 1.00 crore based on the MoS was claimed as operational debt being the defaulted amount on the date of issue of the notice dated 31.3.2017 and sought for repayment of the unpaid operational debt within a period 10 days from the date of receipt of the notice failing which the Operational Creditor it was stated will be constrained to initiate CIRP against the Corporate Debtor. The notice dated 31.3.2017 is stated had been delivered to the Corporate Debtor on 3.4.2017 as evidenced by the tracking report of the relevant consignment issued by India Post.
(3.) Upon receipt of notice dated 31.03.2017 by the Corporate Debtor it had been replied to on the part of the Corporate Debtor through its legal Counsel dated 3.5.2017 wherein the amount claimed had been disputed by the Corporate Debtor and further calling upon the Operational Creditor to withdraw the demand notice dated 31.3.2017. Ld. Counsel for the Petitioner represents that in view of the absence on the part of the Corporate Debtor to refund the amount of security deposit claimed as the defaulted amount, the Operational Creditor has been forced to file the above Petition as narrated earlier for invoking the provisions of IBC, 2016 and for initiating CIRP against the Corporate Debtor.;