IN THE NATIONAL COMPANY LAW TRIBUNAL NEW DELHI BENCH-VI CP (IB)-77/(PB)/2022 Section: Under Section 7 of the Insolvency and Bankruptcy Code, 2016 and Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority), Rules, 2016.

In the matter of:

Synergy Ventures. Registered Office at:

having their office at:

CK-58/12, Narain Katra, Nichi Bag, Varanasi ...Petitioner/Financial Creditor Versus M/s. Rudra Buildwell Projects Pvt. Ltd.

Registered Office at:

D-53, Okhla, Phase-I, New Delhi-110020 ...Respondent/Corporate Debtor CORAM:

SHRI MAHENDRA KHANDELWAL, HON’BLE MEMBER (JUDICIAL)

SHRI.RAHUL BHATNAGAR, HON’BLE MEMBER (TECHNICAL)

Counsel for Applicant/ Financial Creditor: Mr. Uday Chandani, Mr.

Saurabh Pandey and Mr.

Shivam Kumar, Advs.

Counsel for Respondent/ Corporate Debtor: Mr. Sunil Fernandes, Mr.

Akshat Gupta, Ms.

Sakshi Tikmany and Ms.

Diksha Dadu, Advs.

ORDER

PER: MAHENDRA KHANDELWAL, MEMBER (JUDICIAL)

Date 19.10.2023

1. This Petition is filed by Synergy Ventures (stated to be an AOP) to initiate Corporate Insolvency Resolution Process (“CIRP”) under Section 7 of the Insolvency and Bankruptcy Code 2016 (“the Code’) against the Respondent M/s. Rudra Buildwell Projects Pvt. Ltd. for the alleged default on the part of the Respondent in clearing the debt of Rs.

2,69,27,721/- as on 30.06.2021.

2. That the Corporate Debtor had sent a business proposal through its Managing Director, Mukesh Khurana to the Petitioner and after considering the proposal, the Petitioner came to a Memorandum of Understanding with the Corporate Debtor on 27.03.2014, in which it was agreed that the Petitioner will provide Rs. 1 crore financial assistance to the Corporator Debtor bearing an interest at the rate of 24% per annum payable on quarterly basis on the terms that if the Corporate Debtor fails to repay the Petitioner, then the Petitioner will have full right to forfeit the two residential units of the Corporate Debtor, which was provided as a security for the amount invested. The Corporate Debtor failed to repay the aforesaid amount. The Petitioner waited for the response of the Corporate Debtor but when there was no heed paid by Corporate Debtor to the correspondence through email, the Petitioner filed the present petition to initiate the CIRP against the Corporate Debtor.

3. The Counsel for the Corporate Debtor raised preliminary objection as to the maintainability of the present application filed under Section 7 of IB Code 2016 on the ground that the Applicant is an Association of persons (AOP) and does not fall under any of the categories envisaged under Section 3(23) read with Section 5(7) of the Code. Therefore, the matter was reserved on maintainability and the parties were directed to file written submissions in the matter.

4. The submissions of the Financial Creditors are as under: -

i. That the Synergy Venture is a Proprietor and not an Association of Persons and a proprietor is legally entitled to invoke Insolvency Proceedings.

ii. That Section 2 (d) and (g) of the Insolvency and Bankruptcy Code, 2016 clearly provides that the provisions of this Code shall apply to such other body incorporated under any law as well as the partnership firm and proprietorship firms and individuals other than persons referred to in clause (e) and the financial creditor do fall under the category of a proprietor as at the date of filing of the Insolvency Petition the financial creditor has disclosed himself as a Proprietor iii. That section 3 (10) of the Code defines the word "creditor" and the same means any person to whom the debt is owed and includes the financial creditors and other category and it is not in dispute that the amount in question is to be repaid by the corporate debtor.

iv. That Section 3 (11) and 3 (12) of the Code defines the word "debt and default" and the case of the financial creditor do establish that there is a legally enforceable debt and the default is established from the documentary evidence on record.

v. That Section 3 (23) of the Code