JUDGEMENT

(Date: 24.03.2022) [Per.: Dr. Alok Srivastava, Member (Technical)] This Appeal is preferred by the Appellants who are aggrieved by the order dated 11.03.2021 (hereafter called ‘impugned order’) of the Adjudicating Authority (National Company Law Tribunal, New Delhi) in CP (IB) No. 2115(ND)/2019 filed under Section 7 of the Insolvency and Bankruptcy Code, 2016 (in short ‘IBC’).

2. The Appellant is aggrieved by the fact that despite there being no default and incorrect averments of the Appellant, Section 7 application submitted by the Respondent No. 1 was admitted vide the Impugned Order

3. The Appellants have stated in the appeal that they are ex- directors of the Corporate Debtor-M/s Abloom Infotech Pvt. Ltd., which is an associate company of Ninex Group of Companies. The four companies in Ninex Group entered into a common loan agreement dated 27.4.2016 for availing a total loan of Rs. 69,51,00,000/- from the Respondent No. 1. The Appellants have further stated that the corporate debtor, who is one of the borrowers, and three other co-borrowers have repaid Rs.

88,37,00,000/- against the loan which is much more than the combined principal and interest amount and yet a Section 7 application alleging that the corporate debtor/Abloom Infotech Pvt.

Ltd. had defaulted in repayment of Rs. 7,94,47,080/- of financial debt to the Respondent No. 1 was filed by Respondent No. 1 and which was admitted by the Adjudicating Authority vide the Impugned Order.

4. The Appellants have claimed that the said default was alleged erroneously and, therefore, they asked for proper account statement from Respondent No. 1 vide notice dated 24.07.2020 which was not provided to them. They have also alleged that in order to appropriate a valuable land plot held by the Appellants, Respondent No. 1 brought in a related company M/s Pardos Realtors Pvt. Ltd. and entered into a tripartite agreement dated 28.09.2018 between M/s Pardos Realtors, the Appellants and the Respondent No. 1 for purchase of the land plot situated in Sector 132, Noida (U.P.). In accordance with this agreement, the first two payments of Rs. 3,91,78,073/- and Rs. 1,71,95,717/- was made by M/s Pardos Realtors (the ‘buyer’) to the corporate debtor which was transferred by the corporate debtor to Respondent No. 1. Thereafter, without any authorisation the next three payments made by the Appellants to M/s Pardos Realtors amounting to Rs.

1.75 crores each was transferred to Respondent No. 1 and thereafter, without any proper grounds of infringement of the tripartite agreement M/s Pardos Realtors sent a legal notice dated 27.08.2019 for termination of the tripartite agreement. M/s Pardos Realtors also asked for returning their security deposit of Rs.

10,88,73,790/- with interest at the rate of 30% from the corporate debtor. Further it is stated by the Appellants that, to the distress of the Corporate Debtor, Respondent No. 1 filed an application under section 7 of IBC claiming of Rs. 7,94,47,080/- to be financial debt which is payable by the Corporate Debtor which was in default.

5. The Appellants have further stated that the Respondent No. 1 filed the application for personal Insolvency against the personal guarantor (Appellant No. 2) under section 95 of the IBC and despite a ‘stay order’ dated 12.10.2020 in a writ petition filed by the Appellant in Delhi High Court the Adjudicating Authority went ahead and admitted the section 7 application. During consideration of section 7 application the Resolution Professional (in short ‘RP’) of Ninex Group filed an impleadment application as it is a co-borrower with the Corporate Debtor but this application for impleadment was rejected by the Adjudicating Authority.

6. The questions that have been raised by the Appellants in this appeal are:-

(i) Whether any amount was due and payable by the Corporate Debtor Abloom Infotech Pvt. Ltd./Corporate Debtor to the Financial Creditor (Respondent No. 1);

(ii) Whether the financial