JUDGEMENT

[Per: Shreesha Merla, Member (T)] 1. Aggrieved by the Order dated 29/09/2021 in C.P. No.- 329/(IB)-MB- V/2020 passed by the Learned Adjudicating Authority (National Company Law Tribunal, Court V, Mumbai Bench), ‘M/s. Shamji Optima Private Limited’ preferred this Appeal under Section 61 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as ‘The Code’). By the Impugned Order, the Adjudicating Authority has dismissed the Application -2- Company Appeal (AT) (Insolvency) No. 992 of 2021 filed under Section 7 of the Code, by the Appellant herein, against ‘M/s.

Tridhaatu Aranya Developers LLP’ (hereinafter referred to as the ‘Corporate Debtor’), observing as follows:

“38. Upon perusal of the documents annexed to the Petition and hearing counsels from both the sides, the Bench is of the considered opinion that there is no privity of contract between Petitioner and Corporate Debtor and the LLP agreement dated 07.os.20L2 and the Supplementary Retirement Deed dated 15.08.2OL6 is not a contract signed by and between the Petitioner and Corporate Debtor herein. The Supplementary Retirement Agreement contemplates certain liability of Tridhaatu wherein Tridhaatu agreed to pay the outstanding sum of Rs, 45,08,08,384/- to the Petitioner and provided certain cheques to be paid by the corporate Debtor herein being the group company. The corporate Debtor also confirmed the liability of payment of Rs.

4,03,28,000/- to the Petitioner herein as on 31.03.2018, however, this does not demonstrate any liability towards payment of financial debt.

ingredients of financial debt along with interest, if any, which is disbursed against consideration for time value and money and is in existence between the Petitioner and Corporate Debtor. The Petitioner is relying up reference being made in Supplementary Retirement Deed and that cheques were presented as security without any basis of contractual terms between the Petitioner and Corporate Debtor.

contract between the parties and a mere reference to certain liability while handing out cheques, confirmation of liability, it cannot be construed that there is a binding agreement of any debt due in terms of Section 5 (8) of the Code and hence, there is no evidence of default for non-payment of money by the Corporate Debtor towards his obligation of payment of monies under any contract is thus not established, Further, the claim is barred by limitation.

civil court, the Petition under Section 7 of IBC cannot be admitted. The mere reference of handing over of cheque of Corporate Debtor as security does not fasten any liability to the Corporate Debtor for -3- Company Appeal (AT) (Insolvency) No. 992 of 2021 payment of monies and any debt due under the Supplementary Retirement Deed. The expression Tridhaatu affiliated nominee including sister concern cannot be bound unless it is expressly confirmed that the sister concern is liable to pay in case of default and in the absence of any absolute liability. The claim has to be adjudicated by a regular civil court and hence the petition is liable to be dismissed.” 2. Submissions of the Learned Counsel appearing on behalf of the Appellant: • The Learned Senior Counsel for the Appellant contended that the Appellant, (formerly known as ‘Four Seasons Developers Private Limited’) is a ‘Financial Creditor’ of the ‘Corporate Debtor’, having disbursed unsecured loans, which the ‘Corporate Debtor’ had defaulted in repayment; that ‘Tridhaatu Group’ and ‘Prince Care Group’ are engaged in the business of Real Estate; ‘Tridhaatu Group’ promoted by Mr. Krishnan Muthukumar, Mr. Dhananjay Anand Sandu and Mr. Pritam Chivukula include entities i.e., Tridhaatu Asset Holding LLP, Tridhaatu Mumbai Structures Private Limited and Sandu Homes LLP; ‘Prince Care Group’ promoted by Mr. Dharmesh Kishore Chheda and Mr. Bhavesh Kishore Chheda includes entities forming a part of Shamji Optima Private Limited’ (the Appellant herein) and Prince Care Developers LLP.