w w w . L a w y e r S e r v i c e s . i n



In the Matter of: M/s. Acquisory Consulting LLP, New Delhi v/s BCC Infrastructure Pvt. Ltd., New Delhi


Company & Directors' Information:- S V CORPORATION LLP [Active] CIN = AAQ-7877

Company & Directors' Information:- K. H. CONSULTING PRIVATE LIMITED [Active] CIN = U67120MH1994PTC082772

Company & Directors' Information:- K. W. CONSULTING PRIVATE LIMITED [Active] CIN = U72200TG2009PTC063353

Company & Directors' Information:- A P T AND CO LLP [] CIN = AAL-8025

Company & Directors' Information:- R D N A AND CO LLP [Active] CIN = AAM-4183

Company & Directors' Information:- C A P A (INDIA) LLP [] CIN = AAF-9325

Company & Directors' Information:- NEW INFRASTRUCTURE PRIVATE LIMITED [Active] CIN = U45200MH2005PTC155770

Company & Directors' Information:- M D S & CO LLP [] CIN = AAF-2760

Company & Directors' Information:- A A A M & CO LLP [Active] CIN = AAT-1669

Company & Directors' Information:- K AND J CONSULTING PRIVATE LIMITED [Active] CIN = U74140TZ2007PTC013784

Company & Directors' Information:- I M 5 M CONSULTING PRIVATE LIMITED [Active] CIN = U74140MH2003PTC139160

Company & Directors' Information:- MATTER LLP [] CIN = AAJ-2533

Company & Directors' Information:- R C A AND CO LLP [Active] CIN = AAU-3441

Company & Directors' Information:- D B Y & CO LLP [] CIN = AAF-3364

Company & Directors' Information:- C A N V A S & CO LLP [] CIN = AAG-1661

Company & Directors' Information:- E I U INDIA LLP [] CIN = AAG-0189

Company & Directors' Information:- S S S R & COMPANY LLP [Active] CIN = AAS-6238

Company & Directors' Information:- ACQUISORY INDIA CONSULTING PRIVATE LIMITED [Active] CIN = U74999DL2010PTC205005

Company & Directors' Information:- E CONSULTING INDIA PRIVATE LIMITED [Strike Off] CIN = U72900KA2000PTC028060

Company & Directors' Information:- S 2 S CONSULTING PRIVATE LIMITED [Active] CIN = U74140KA2001PTC029034

Company & Directors' Information:- M B S P & CO LLP [] CIN = AAI-4025

Company & Directors' Information:- Y N G AND CO LLP [] CIN = AAJ-6096

Company & Directors' Information:- ECOIRIA LLP [Active] CIN = AAO-2501

Company & Directors' Information:- V S K A & COMPANY LLP [Active] CIN = AAU-5542

Company & Directors' Information:- F A M S & CO LLP [Active] CIN = AAU-9603

Company & Directors' Information:- N K R G AND CO LLP [Active] CIN = AAX-4256

Company & Directors' Information:- H N C P & CO LLP [Active] CIN = AAT-5981

Company & Directors' Information:- V G R A N D & CO LLP [Under Process Of Strike Off] CIN = AAO-5777

Company & Directors' Information:- R R C O CONSULTING PRIVATE LIMITED [Active] CIN = U74140DL2006PTC147736

Company & Directors' Information:- T AND T CONSULTING PRIVATE LIMITED [Strike Off] CIN = U74140MH2000PTC129569

Company & Directors' Information:- A N B CONSULTING COMPANY PRIVATE LIMITED [Active] CIN = U74140MH2001PTC130840

Company & Directors' Information:- K R CONSULTINGINDIA PRIVATE LIMITED [Under Process of Striking Off] CIN = U72200AP2016PTC098372

Company & Directors' Information:- V M I CONSULTING PRIVATE LIMITED [Strike Off] CIN = U74140KA2000PTC027655

Company & Directors' Information:- R S A C & CO LLP [Active] CIN = AAX-1702

Company & Directors' Information:- O P L INFRASTRUCTURE LLP [] CIN = AAD-6458

Company & Directors' Information:- A B D AND CO LLP [] CIN = AAG-4228

Company & Directors' Information:- D G K T & CO LLP [Active] CIN = AAY-0763

Company & Directors' Information:- R H D B & CO LLP [] CIN = AAF-9564

Company & Directors' Information:- N J S R & CO LLP [Active] CIN = AAS-6904

Company & Directors' Information:- M S T S AND CO LLP [] CIN = AAJ-9789

Company & Directors' Information:- A G N & CO LLP [Active] CIN = AAT-3343

Company & Directors' Information:- A H S G & CO LLP [Active] CIN = AAU-8429

Company & Directors' Information:- J K J S & CO. LLP [] CIN = AAI-5880

Company & Directors' Information:- B S R INFRASTRUCTURE LLP [] CIN = AAD-7038

Company & Directors' Information:- T & A CONSULTING PRIVATE LIMITED [Active] CIN = U51909DL2006PTC156226

Company & Directors' Information:- J & A CONSULTING PRIVATE LIMITED [Active] CIN = U74140KA1984PTC006255

Company & Directors' Information:- A B A M & CO. LLP [] CIN = AAF-2113

Company & Directors' Information:- M N S H & CO LLP [] CIN = AAG-4390

Company & Directors' Information:- T & R INDIA LLP [] CIN = AAH-4079

Company & Directors' Information:- S G S R & CO LLP [] CIN = AAH-3391

Company & Directors' Information:- D M M & COMPANY LLP [] CIN = AAJ-7431

Company & Directors' Information:- Y S K AND CO LLP [Active] CIN = AAN-5713

Company & Directors' Information:- J K K & COMPANY LLP [Active] CIN = AAX-1522

Company & Directors' Information:- K L S AND CO LLP [] CIN = AAJ-7210

Company & Directors' Information:- A Y K J & CO LLP [Active] CIN = AAS-7373

Company & Directors' Information:- K N A AND CO LLP [Active] CIN = AAU-0083

Company & Directors' Information:- H S K & CO LLP [Active] CIN = AAT-9072

Company & Directors' Information:- S D U AND CO LLP [Active] CIN = AAM-9609

Company & Directors' Information:- I S N CONSULTING PRIVATE LIMITED [Active] CIN = U72200MH2000PTC130139

Company & Directors' Information:- S K Y P CONSULTING INDIA PRIVATE LIMITED [Strike Off] CIN = U45200TG2013PTC091046

Company & Directors' Information:- D H N CONSULTING PRIVATE LIMITED [Strike Off] CIN = U74140DL2004PTC127418

Company & Directors' Information:- J N A CONSULTING PRIVATE LIMITED [Active] CIN = U74140DL2005PTC139246

Company & Directors' Information:- R G S CONSULTING PRIVATE LIMITED [Strike Off] CIN = U74140DL2013PTC252203

Company & Directors' Information:- E N Y CONSULTING PRIVATE LIMITED [Active] CIN = U74999DL2005PTC143104

Company & Directors' Information:- A G CONSULTING PRIVATE LIMITED [Strike Off] CIN = U74999DL2016PTC300208

Company & Directors' Information:- B B G CONSULTING PRIVATE LIMITED [Strike Off] CIN = U93000DL2012PTC242184

Company & Directors' Information:- C J CONSULTING PRIVATE LIMITED [Strike Off] CIN = U74140KA2000PTC027997

Company & Directors' Information:- A W CONSULTING PRIVATE LIMITED [Strike Off] CIN = U72200KA2006PTC040174

Company & Directors' Information:- O P CONSULTING PRIVATE LIMITED [Active] CIN = U74140KL2015PTC038338

Company & Directors' Information:- J R C CONSULTING PRIVATE LIMITED [Strike Off] CIN = U74999DL2000PTC103331

Company & Directors' Information:- A P A R & CO LLP [Active] CIN = AAS-8336

Company & Directors' Information:- A A M K & CO LLP [Active] CIN = AAT-0385

Company & Directors' Information:- V U D & CO LLP [Active] CIN = AAT-1391

Company & Directors' Information:- ACQUISORY CONSULTING LLP [Active] CIN = AAB-9468

Company & Directors' Information:- P G P INFRASTRUCTURE LLP [Active] CIN = AAC-3656

Company & Directors' Information:- A Z R CONSULTING LLP [Active] CIN = AAC-9695

Company & Directors' Information:- A K M W AND CO LLP [Active] CIN = AAF-4352

Company & Directors' Information:- M B D & CO LLP [] CIN = AAG-6725

Company & Directors' Information:- S R J N & CO LLP [] CIN = AAH-0969

Company & Directors' Information:- A T M S & CO LLP [] CIN = AAH-2210

Company & Directors' Information:- J J J AND COMPANY LLP [] CIN = AAH-6513

Company & Directors' Information:- B G K & CO LLP [] CIN = AAI-2849

Company & Directors' Information:- R R INFRASTRUCTURE LLP [] CIN = AAI-3526

Company & Directors' Information:- M N K D & CO LLP [] CIN = AAI-9526

Company & Directors' Information:- D S R V AND CO LLP [] CIN = AAJ-5358

Company & Directors' Information:- K D M AND CO LLP [] CIN = AAJ-9144

Company & Directors' Information:- D AND D CONSULTING LLP [] CIN = AAJ-9579

Company & Directors' Information:- S P K G & CO LLP [] CIN = AAK-1705

Company & Directors' Information:- V D S R & CO LLP [] CIN = AAK-2237

Company & Directors' Information:- M A S P N & CO LLP [] CIN = AAK-4575

Company & Directors' Information:- N P K & COMPANY LLP [] CIN = AAL-7453

Company & Directors' Information:- M N A INFRASTRUCTURE LLP [Active] CIN = AAM-3772

Company & Directors' Information:- A B CONSULTING LLP [Active] CIN = AAM-3978

Company & Directors' Information:- J B S K & CO LLP [Active] CIN = AAN-2033

Company & Directors' Information:- D R P B AND CO LLP [Active] CIN = AAN-7871

Company & Directors' Information:- PALVIT DEVELOPERS LLP [Active] CIN = AAO-3310

Company & Directors' Information:- N G V R AND COMPANY LLP [Active] CIN = AAO-4093

Company & Directors' Information:- J A S N & CO LLP [Active] CIN = AAP-0336

Company & Directors' Information:- R S A G AND CO LLP [Active] CIN = AAP-1444

Company & Directors' Information:- P R P A & COMPANY LLP [Active] CIN = AAT-7868

Company & Directors' Information:- S M B C & COMPANY LLP [Active] CIN = AAU-0557

Company & Directors' Information:- L M R K & CO LLP [Active] CIN = AAV-4030

Company & Directors' Information:- S L B M AND CO LLP [Active] CIN = AAV-4289

Company & Directors' Information:- J U INFRASTRUCTURE LLP [Active] CIN = AAV-9099

Company & Directors' Information:- V K & COMPANY LLP [Active] CIN = AAW-7564

Company & Directors' Information:- D A M & CO LLP [Active] CIN = AAW-8134

Company & Directors' Information:- N A D & CO LLP [Active] CIN = AAW-9504

Company & Directors' Information:- A B R & CO LLP [Active] CIN = AAX-0331

Company & Directors' Information:- V H P A & CO LLP [Active] CIN = AAY-1712

Company & Directors' Information:- N C A P & COMPANY LLP [Active] CIN = AAY-2026

Company & Directors' Information:- B M P S & CO LLP [Active] CIN = AAW-9364

Company & Directors' Information:- A Y K CONSULTING LLP [Active] CIN = AAC-3348

Company & Directors' Information:- J K J & CO LLP [] CIN = AAE-5439

Company & Directors' Information:- S G C O & CO LLP [] CIN = AAI-0379

Company & Directors' Information:- G P S & CO LLP [] CIN = AAI-0872

Company & Directors' Information:- K K A B & CO LLP [] CIN = AAJ-3296

Company & Directors' Information:- C S D AND CO LLP [] CIN = AAJ-4629

Company & Directors' Information:- M P G V & CO LLP [] CIN = AAJ-5351

Company & Directors' Information:- A T S G & CO LLP [] CIN = AAK-3751

Company & Directors' Information:- G G S H & CO. LLP [] CIN = AAL-8083

Company & Directors' Information:- J N S V & CO LLP [Active] CIN = AAM-6900

Company & Directors' Information:- S P K T & CO LLP [Active] CIN = AAN-7572

Company & Directors' Information:- S H A & CO LLP [Active] CIN = AAO-4028

Company & Directors' Information:- R S S P K & CO LLP [Under Process Of Strike Off] CIN = AAR-2109

Company & Directors' Information:- A A S S & COMPANY LLP [Active] CIN = AAT-4426

Company & Directors' Information:- R R S J & CO LLP [Active] CIN = AAV-8062

Company & Directors' Information:- A R B R & CO LLP [Active] CIN = AAX-6334

Company & Directors' Information:- S K B & COMPANY LLP [Active] CIN = AAT-5051

Company & Directors' Information:- P R S S & CO LLP [Active] CIN = AAW-2115

Company & Directors' Information:- G A S A & CO LLP [Active] CIN = AAU-4365

Company & Directors' Information:- S P A S AND CO LLP [Active] CIN = AAS-9005

Company & Directors' Information:- S K R AND COMPANY LLP [Active] CIN = AAB-9330

Company & Directors' Information:- C S AND CO LLP [] CIN = AAL-5204

Company & Directors' Information:- M M G S AND CO LLP [Active] CIN = AAW-8857

Company & Directors' Information:- A J M S & CO LLP [Active] CIN = AAS-6794

Company & Directors' Information:- S B S S & CO LLP [] CIN = AAG-2178

Company & Directors' Information:- P Y S & CO LLP [] CIN = AAG-9715

Company & Directors' Information:- P U M & CO LLP [Under Process Of Strike Off] CIN = AAP-1869

Company & Directors' Information:- P V R A & CO LLP [Active] CIN = AAP-2457

Company & Directors' Information:- K S N C & CO LLP [Active] CIN = AAQ-8095

Company & Directors' Information:- A R N P AND CO LLP [Active] CIN = AAS-7063

Company & Directors' Information:- N M G K & COMPANY LLP [Active] CIN = AAU-2181

Company & Directors' Information:- S H A P AND COMPANY LLP [Active] CIN = AAU-5309

Company & Directors' Information:- B K Y & CO LLP [Active] CIN = AAU-7172

Company & Directors' Information:- B R D P & CO LLP [Active] CIN = AAV-4924

Company & Directors' Information:- S R B A & CO LLP [] CIN = AAF-9001

Company & Directors' Information:- C S M & CO LLP [Active] CIN = AAW-1462

Company & Directors' Information:- A C C A & CO LLP [] CIN = AAF-2112

Company & Directors' Information:- K A M AND CO LLP [Active] CIN = AAU-7380

Company & Directors' Information:- S C M K & CO LLP [Active] CIN = AAT-2422

    CP. IB No. 317/ND of 2017

    Decided On, 16 March 2018

    At, National Company Law Tribunal New Delhi

    By, THE HONOURABLE MR. R. VARADHARAJAN
    By, JUDICIAL MEMBER

    For the Petitioners: P. Rajesh, Prashan Jain, Advocates. For the Respondents: Dr. U.K. Choudhary, Sr. Counsel, Ashok Kumar Singh, Himanshu Vij, Advocates.



Judgment Text

1. The petition as above has been filed under Section 9 of the Insolvency and Bankruptcy Code (IBC), 2016 read with Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016; for brevity called as 'AAA' Rules. The Petitioner has described itself in the mandatory form prescribed under the provisions of 'AAA' Rules under Part I that it is a limited liability partnership having identification No.LLP PIN-AAB-9468 and having its registered office at B-18, First Floor, Defence Colony, New Delhi-110024. In so far as this petition is concerned, it has designated itself as an Operational Creditor under the provisions of IBC, 2016. Under Part-II of the mandatory form prescribed under 'AAA' Rules. M/s BCC Infrastructure Private Ltd. has been described as the Corporate Debtor having its identification No. CIN:U45400DL2010PTC199212 and that the above named company is stated to have been incorporated on 17.02.2010 and having its registered office at B-14, Vivek Vihar, Phase-I, New Delhi-110 094. The authority for filing this petition on behalf of Operational Creditor, it is stated to be one Mr. Sumchit Anand named as the authorized signatory, authorized by a resolution of Board of Partners of the Operational Creditor dated 24.8.2017 (i.e). Under Part Ill of the said application one Mr. Jitender Kumar Jain has been named as the Interim Resolution Professional (IRP). Part IV of the said application quantifies the operational debt due and in default at Rs.5.75 crores and in relation to the transaction giving raise to the claim it is stated to be in relation to assistance of services provided by Operational Creditor for raising funds of Rs.250 crores from Edelweiss/ECL Finance Ltd and that payment of success fee equal to 2% of the size of transaction (i.e.) of Rs.250 crores is payable to the Operational Creditor at the time of disbursement of loan, the amount of fee in value terms being a sum of Rs.5 crores.

Further, it is stated that the above noted service was provided by the Operational Creditor to the Corporate Debtor based on engagement letter dated 5.9.2013 entered into between the Corporate Debtor and one M/s Acquisory India Consulting (P) Ltd. and that due to internal restructuring, it is stated that the said contract for assisting for raising funds for Corporate Debtor got assigned by the assignment of the fund raising engagement letter dated September 5th, 2013 to the Operational Creditor vide letter dated 05.04.2014 and due to the efforts of the Operational Creditor as borne out by repeated e-mail exchanges between the parties, the Corporate Debtor was able to obtain a disbursal of loan in a sum of Rs.250 crores from Edelweiss /ECL Finance Limited sanctioned in the month of March 2016 and disbursed in April 2016, subsequent to which the Operational Creditor sought to raise invoices in parts in relation to fee payable aggregating in all to Rs.5 crores which remain unpaid along with the applicable service tax and cesses leviable thereon aggregating in all to Rs.5.75 crores. Despite repeated attempts made by the Operational Creditor for the payments of amounts due to it from the Corporate Debtor, and in view of non-payment of the amounts due as claimed above in a sum of Rs.5.00 crores, notice dated 23.5.2017 under Section 8(1) of IBC, 2016 was issued to the Corporate Debtor and that again on 14.6.2017 another demand notice was also issued by the authorized person namely, the legal Counsel of the Operational Creditor to the Corporate Debtor. Despite service of these two notices, no payment has been made by the Corporate Debtor nor any notice of dispute has been issued by the Corporate Debtor and in the circumstances the Petitioner was forced to file the petition under the relevant provisions of IBC, 2016 seeking for the invocation of Corporate Insolvency Resolution Process (CIRP). It was brought to the notice of this Tribunal by the Learned Counsel for the Petitioner that initially when the petition was filed in CP No. (18)(231)/ND/2017, in view of certain preliminary objections raised by the Corporate Debtor, upon representation by the Counsel for the Petitioner, it was allowed to be withdrawn, with liberty to file on the same cause of action by the Hon’ble Division Bench, NCLT, New Delhi vide order dated 22.8.2017. Based on the liberty granted therein, the present petition has come to be filed by the Petitioner. In support of the transaction and claim arising thereunder, amongst others, engagement letter dated 5.9.2013 as entered into between Corporate Debtor and one M/s Acquisory India Consulting Pvt. Ltd. has been enclosed as Annexure-E to the typed set of documents in which it is described as a job arrangement letter. Further, Annexure-F at page number 136 of the typed set annexed is the assignment to the present petitioner herein vide an assignment letter dated 5.4.2014 signed by the Operational Creditor and the Corporate Debtor. Copies of the invoices dated 6.6.2016, 21.10.2016 and 4.4.2017 aggregating in all to Rs.5 crores giving rise to the claim as detailed above, has also been enclosed as Annexure-G (Colly). Two demand notices sent on 23.5.2017 and 14.6.2017 have been enclosed as Annexure-K and the copy of the order passed by the Hon’ble Division Bench, New Delhi in (18)(231)/ND/2017 has also been enclosed as Annexure-L. Further e-mails stated to have been exchanged between the parties have been also enclosed.

In response to the Petition, the Corporate Debtor has filed a detailed reply raising objections, including preliminary objections, amongst others which are as follows:

(i) The Operational Creditor cannot be considered as service provider to the Corporate Debtor as it has not rendered any services to the Corporate Debtor and in the circumstances there is no relationship of Operational Creditor and Corporate Debtor as established and there is no operational debt as contemplated under IBC, 2016 for invoking the insolvency process;

(ii) It is further contended by the Corporate Debtor that notice under Section 8(1) of IBC, 2016 has not been served with the copy of the said notice as stipulated under AAA Rules along with a copy of invoice as prescribed in Form-4 of the said Rules and also in addition to not being issued by a authorized person at the time of issue of notice on behalf of the Operational Creditor, and if any, it has not been furnished. Going further in relation to the said contention, it is stated that Mr. Sumchit Anand who is said to have signed the demand notice for unpaid amount on behalf of Operational Creditor, was never authorized to issue such a notice by the Operational Creditor and even if authorization if any given, it is contended that the same has been given as per the documents enclosed with the petition, only on 24.8.2017 that too after the issue of notice under Section 8 in the month of May, 2017 or June, 2017 and hence there is no valid notice issued under the provisions of IBC, 2016 the same being a statutory formality stipulated in the Act and in the circumstances, the petition is not maintainable. In support of this contention, certain judgements have been referred to by the Corporate Debtor passed by the Hon’ble NCLAT.

(iii) In relation to facts it is contended by the Corporate Debtor that the Corporate Debtor which is engaged in building construction activities had initially entered into an agreement dated 4.3.2010 with HDFC for construction of flat and development of township called ‘Bharat City' at Loni Road, Ghazlabad in which HDFC had invested, by virtue of share subscription-cum-shareholder agreement dated 4.2.2010 and duly amended subsequently by an agreement dated 9.2.2011, to the extent of Rs.10 lakhs subscribing to 1,00,000 lakh equity shares with face value of Rs.10.00 each as well as Rs.30.00 lakhs Class A Participating Preference Shares having face value of Rs.10.00 each. Further, a sum of Rs.99.60 crores was also subscribed to by HDFC by way of subscription to 99,60,000 Class ‘A’ Debentures having face value of Rs.100/- each. In addition a further sum of Rs.40 crores was subscribed to class ‘A’ debentures having the face value of Rs.100/- each. In view of all these investments, the said HDFC had nominated Acquisory India Consulting Pvt. Ltd. being professional accountants, to supervise the complete accounting functions for ‘Bharat City’ and whose services per force was hired for the project on behalf of HDFC to safeguard its interest and based on the requirement of HDFC and solely at the insistence of HDFC. Thus the Corporate Debtor engaged the services of the said Acquisory India Consulting Pvt. Ltd. specifically for the accounting services mentioned earlier by executing an agreement with it on 1.8.2011 and the said accounting services was to be remunerated with a monthly fee of Rs.1.00 lakh. However, the services of the said Acquisory India Consulting Pvt. Ltd. was discontinued, consequent to the repayment of amount invested to HDFC by the Corporate Debtor and to this effect a closure agreement was also entered into on 03.02.2016 and 'No Dues Certificate' was also issued by HDFC. Thus while in service of the Corporate Debtor, the said M/s Acquisory India Consulting Pvt. Ltd. were provided by the Corporate Debtor complete access to its accounting records as well as to other records of the Corporate Debtor. It is further contended that making use of the same, the above claim is sought to be made and that the documents filed in support of this claim as made in this petition is put to strict proof including the alleged engagement letter dated 5.9.2013, based on which the claim is sought to be raised. It is further contended that a sum of Rs.250.00 crores obtained from Edelweiss/ECL Finance Ltd. was based on two agreements dated 29.2.2016 entered into between Edelweiss/ECL Finance Ltd. and the Corporate Debtor. Further for obtaining the said amount, the Corporate Debtor had also agreed to make a one time payment of non-refundable and non-adjustment 3% arrangement fee and that on 18.3.2016 based on the two agreements, a sum of Rs.250.00 crores were released, as these agreements also contained in clause 10 about the 3% arrangement fee to be paid to Edelweiss/ECL Finance Ltd. It is further averred that the arrangement fee at 3% of Rs.250 crores was also duly remitted to Edelweiss/ Securities Ltd. on 10.5.2016 at the fixed percentage as agreed amounting to Rs.7,83,75,000/-. Since the said amount of Rs.250.00 crores was obtained through the efforts of the Corporate Debtor itself in tandem with Edelweiss Securities Ltd from Edelweiss/ECL Finance Ltd and in relation to which service was provided by Edelweiss Securities Ltd., payments of arranger fees have also been made and hence no amount is required to be paid to the Operational Creditor for arrangement of funds and hence the claim made by the Operational Creditor in this petition is totally unsustainable.

Both the parties were heard at length and the parties were also given an opportunity to file written submissions vide order dated 23.10.2017 and both the parties have availed the opportunity and filed their respective written submissions, all being part of the records.

Ld. Counsel for the petitioner/Operational Creditor submits that the exchange of correspondence between the Director of Acquisory India Consulting (P) Ltd. and that of the Corporate Debtor discloses that Edelweiss/ECL Finance Ltd has been included in the list of entities which clearly shows that ECL had been approached for funding which ultimately culminated in the disbursal of the loan. He further submits that this letter was also made available to HDFC PMC on their request, as they were having 50% stake in the Corporate Debtor. Thereafter, the assignment as stated above took place vide letter dated 5.4.2014 of which the Corporate Debtor was fully aware of, as the same being signed by the Chairman and Managing Director of the Corporate Debtor. Thus efforts were made by the Operational Creditor in view of the engagement letter given and specifically assigned, to source funds for the Corporate Debtor from different sources. It is further claimed in the written submissions filed on behalf of the Operational Creditor at paragraph 9, as follows:

'In the Engagement Letter, it was mentioned that BCC’s requirement was of Rs.150 crores, as only HDFC PMS investment was to be replaced. However, as the work progressed and based on feedback of the prospective investors and their discomfort on providing debt based on second charge on property/assets, the amount was raised to Rs.250 crores in order to replace the construction finance outstanding from HDFC Bank, which had the first charge on the project and all BCC’s assets and also to fund the further cash requirements of the BCC. It may be noted that in the Engagement letter under the head ‘Engagement Fees’ records that Acquisory Fee’s for this engagement will be provided on a success fee equal to 2% of the size of the transaction. Therefore, clearly it was the understanding of the parties that the amount of Rs.150 crores mentioned in the Engagement letter for fund raising was only an indication of need at the time. The parties had accepted that whatever transaction size will be there BCC will be liable to pay 2% of that amount to Acquisory as its fees.'

Ultimately, it is vehemently stressed that only because of the efforts of the Operational Creditor, funds were able to be sourced from Edelweiss/ECL Finance Ltd. in a sum of Rs.250.00 crores and hence the raising of invoices by the Operational Creditor towards success fee is in order and that a sum of Rs.5.00 crores is due and payable in addition to service tax and cess by the Corporate Debtor to the Operational Creditor and since there is a default of Operational Debt, the Operational Creditor is entitled to maintain this petition. In relation to the demand notice of which an objection is sought to be raised, it is represented by the Ld. Counsel for the Petitioner that the Operational Creditor is a Limited Liability Partnership (LLP) and Mr. Sumchit Anand being the designated partner is entitled to act on behalf of the firm and that in the circumstances he is competent to act on behalf of the Limited Liability Partnership (LLP) by issuing Section 8 notice under IBC, 2016. In view of non-receipt of response from and on the part of the Corporate Debtor, both in relation to 23.5.2017 and 14.06.2017 notices issued under Section 8 of IBC,2016, one by the Operational Creditor and the other by its Counsel are valid and for this purpose reliance is placed, for the issue of notice under the hand of legal counsel being valid, on the judgement of Hon’ble Supreme Court rendered in Macquaire Bank Limited vs. Shilpi Cable Technologies Limited, Civil Appeal 15135 of 2017 and hence the petition is maintainable and for the proposition that the disputes which are sought to be raised are only moon shine and illusory and this Tribunal is required to separate the grain from the chaff and to reject the spurious defence which is a mere bluster the decision of the Hon’ble Supreme Court in Mobilox Innovations Pvt. Ltd. vs. Kirusa Software Pvt. Ltd. - 2017 SCC Online SC 1154 is sought to be relied.

Ld. Sr. Counsel appearing for the Respondent on the other hand, in opposition to the submissions made by the Ld. Counsel for the Petitioner, reiterates the submissions made in the detailed reply filed to the petition. Further, it is contended that in view of the agreement dated 4.3.2010 having come to a close as between HDFC and the Corporate Debtor in relation to ‘Bharat City’ and also in view of the fact that the entire amount having been repaid to HDFC, the necessity of services of Acquisory India Consulting (P) Ltd. and its continuing the accounting service was not required at all and hence its service was also discontinued. It is also contended that in relation to arranging of funds it was done by the Corporate Debtor in tandem with Edelweiss/ECL Finance Ltd. In relation to which no part was played by the Operational Creditor as contended earlier other than arranging for documentation. In support of the same, the services-cum-engagement letter entered into with Edelweiss Securities Ltd. and the Corporate Debtor dated 29.2.2016, is pointed out wherein, a one time non-refundable and non-adjustable processing fee @3% of the loan(plus applicable taxes) by way of the Arranger/Syndicator fee had been agreed to be paid on or before the first draw down date and which percentage was also ultimately paid in relation to the sum of Rs.250 crores, being the fund arranged, also based on the agreement entered into between the Corporate Debtor and ECL Finance Limited dated 18.03.2016 for subscription of Debenture of Rs.210 crores. The said agreement at clause 10 provides for an Arranger fee at 3% and as well as another agreement entered into between the Corporate Debtor and Edelweiss Housing Finance Limited for a loan of Rs.40 crores made available to the Corporate Debtor, again dated 18.03.2016 making thereby the financial facility availed aggregating to Rs.250 crores by the Corporate Debtor.

On 10.5.2016 as agreed, the payment of Arranger/Syndicate fee was duly made to Edelweiss Securities Ltd. in a sum of Rs.7,83,75,000/- and in view of the same the payment of arranger fee or success fee to any other person, including the Operational Creditor does not arise at all in view of the exclusivity clause. The e-mail correspondence exchanged between the Operational Creditor and the Corporate Debtor is sought to be explained by Ld. Sr. Counsel for the Corporate Debtor, as also reflected in the pleadings, that the said person being an employee of the Corporate Debtor and as supervisor to the accounting process, several emails could have been exchanged for the purpose of documentation between the two. In relation to the engagement letter it is contended that it cannot bind the Corporate Debtor as it has not been disclosed as to who had signed the said engagement letter in the first place from the side of the Corporate Debtor. In relation to the defect in notice pointed out in the earlier round i.e. in CP(IB)(231/ND/2017 which was filed on 20.7.2017 and subsequently withdrawn on 22.8.2017, objections were raised in agreement at clause 10 provides for an Arranger fee at 3% and as well as another agreement entered into between the Corporate Debtor and Edelweiss Housing Finance Limited for a loan of Hs.40 crores made available to the Corporate Debtor, again dated 18.03.2016 making thereby the financial facility availed aggregating to Rs.250 crores by the Corporate Debtor.

On 10.5.2016 as agreed, the payment of Arranger/Syndicate fee was duly made to Edelweiss Securities Ltd. in a sum of Rs.7183,75,000/- and in view of the same the payment of arranger fee or success fee to any other person, including the Operational Creditor does not arise at all in view of the exclusivity clause. The e-mail correspondence exchanged between the Operational Creditor and the Corporate Debtor is sought to be explained by Ld. Sr. Counsel for the Corporate Debtor as also reflected in the pleadings, that the said person being an employee of the Corporate Debtor and as supervisor to the accounting process, several emails could have been exchanged for the purpose of documentation between the two. In relation to the engagement letter it is contended that it cannot bind the Corporate Debtor as it has not been disclosed as to who had signed the said engagement letter in the first place from the side of the Corporate Debtor. In relation to the defect in notice pointed out in the earlier round i.e. in CP(IB)(231/ND/2017 which was filed on 20.7.2017 and subsequently withdrawn on 22.8.20171 objections were raised in relation to the authorization given to Mr. Sumchit Anand dated 3.7.2017 filed with the said petition at page No.21 and rejoinder to the objections in the said petition, wherein, another Board resolution was filed along with rejoinder which clearly demonstrated the lack of authenticity of the Board resolution and in the circumstances it was hence contended that it only evidenced that at the time of issue of both the notices, Mr. Sumchit Anand was not authorized to issue these notices and that from the typed set of documents filed with this petition. the authorization, it is seen had been given only post issue of notice dated 24.8.2017. It is further pointed out that the declarations made by the Insolvency Resolution Professional (IRP) filed along with this petition is not complete in as much as the IRP has failed to meet disclosures norms in accordance with the provisions of IBC, 2016.

Ld. Sr. Counsel also challenges the so-called letter dated 05.09.2013 and thereby the subsequent assignment letter dated 05.04.2014 and in this connection represents that the engagement letter has been made without any authorization, if at all made on behalf of the Corporate Debtor. Further, the so called assignment and engagement letter it is contended cannot be considered as a legal assignment as at the said point of time no debt had arisen which is due and payable to the assigner or steadfast obligation imposed and in any case there could not have been any debt in the absence of any services being rendered by the Operational Creditor or its Assignor as contended.

We have carefully considered the rival pleas in relation to the engagement letter dated 05.09.2013. As rightly pointed out by the Ld. Sr. Counsel for the Corporate Debtor which is annexed at page No.127, of the typed set of the Petitioner of the main application the signatory to the said letter on behalf of the Corporate Debtor is not disclosed fully. It is seen that it is only signed by an authorized signatory and neither the name or designation has been disclosed therein or in the Company Petition as filed by the Petitioner. In relation to the same, it is the contention of Ld. Sr. Counsel for the Corporate Debtor that no Board Resolution was given authorizing any person to sign this letter on behalf of the Corporate Debtor and in the circumstances the letter dated 5.9.2013 giving raise to the claim, in the first place, as per averment of the Operational Creditor, is to be eschewed totally. There seems to be credence in the submissions made by the Ld. Sr. Counsel for the Corporate Debtor in this regard. The transaction which is contemplated in the letter dated 5.9.2013 is to the magnitude of Rs.150 crores and necessarily it should have been backed with Board Resolution of the Corporate Debtor, one for obtaining the loan, and another for engaging the services of the assignor of the Operational Creditor for the said purpose. In this case, the principles of Indoor Management may not be applicable to M/s Acquisory India Consulting Pvt. Ltd. to whom, it is averred, the original rendition of services letter was given by the Corporate Debtor, as it cannot be considered strictly as a third party in view of the fact that it was looking after the accounting functions of the Corporate Debtor and documentation and hence was literally in the know of things and happenings within the confines of the Corporate Debtor. Further the assignment letter dated 4.5.2014 annexed as Annexure-F at page No.136 enclosed, does not bear the signature of the assigner and it is seen that only the assignee and the Corporate Debtor seem to have signed the said letter dated 04.05.2014 based on which the Operational Creditor seeks to claim the amount as operational debt. The facts which have been reiterated in the reply filed by the Corporate Debtor that assigner in the first place was engaged at the instance of the erstwhile financer-cum-shareholder namely HDFC in order to look after its i.e. HDFC’s interest and that the job profile of the assigner based on the understanding between HDFC and the Corporate Debtor was only to look after the accounting services and to report from time to time to HDFC about the financials of the Corporate Debtor and in the circumstances the transaction of arranging for a loan by the said assigner or by the assignee to the Operational Creditor does not seem to gel with the overall scheme. It is also to be seen that the explanation given by the Operational Creditor, when the question was raised as to the difference of loan amount in the sum of Rs.250 crores which was ultimately received from the financier, namely Edelweiss/ECL Finance Ltd. by the Corporate Debtor as compared to the sum which is stated in the engagement letter of Rs.150 crores issued in 2013 even assuming that the same has been duly authorized by the Corporate debtor, by Rs.100.00 crore, it is submitted that the said variance will not make a overall difference in view of the percentage specified at 2% of the amount that is to be disbursed to it on arrangement of funds. However, it is to be seen that in a major financial transaction of this nature, a variance of Rs.1.00 crore or Rs.2.00 crore may not be material and can be explained in the manner as submitted by the Operational Creditor, but certainly not a difference to the extent of Rs.100.00 crores and certainly in relation to which a fresh mandate should have been given by the Corporate Debtor to the Operational Creditor. However, it is further seen that for the amount of Rs.250 crores being the loan amount ultimately obtained by the Corporate Debtor, it had entered into an agreement services- cum- engagement with Edelweiss Securities Ltd. which is in effect a fresh mandate given to the Edelweiss group. In addition, it is also to be seen that the so called assignment letter through which it is contended that the Operational Creditor, In the year 2014, got assigned of the engagement mandate alleged to have been given to M/s Acquisory Consulting Pvt. Ltd dated 05.09.2013 has not been signed/ executed by the said Acquisory Consulting India (P) Ltd which in the first place, if at all is entitled to benefits, namely the prescribed fee specified therein for arranging finance to which it is entitled and upon performance of its obligations. Apart from merely stating that arising out of internal restructuring of the said Acquisory Consulting India (P) Ltd, no light is thrown as to what is the nature of the internal restructuring of the said entity being spoken about which gave rise to the assignment if at all backed with adequate documents. It is pertinent to note in this connection that while defining 'operational debt' or for that matter even ‘‘financial debt' giving rise to a claim to be made by a person who was not part of the original contract or agreement under IBC, 2016, such a debt should have been either legally transferred or assigned. In the instant case the Tribunal is of the considered view that the vital element of having the debt, if any, even assuming that there was one, had also not been legally assigned or transferred in the absence of any material to show that as to how the internal restructuring took place of Acquisory Consulting India (P) Ltd and as to why the said company is not a party to the assignment whose consultancy contract with the Corporate Debtor is said to have been assigned to the Operational Creditor by it. The emphasis of legal transfer or assignment of a debt giving raise to the scope of such transferee or assignee approaching this Tribunal as such seeking to invoke the provisions of IBC, 2016 in relation CIRP has been dealt with by this Tribunal already in the matter of J.P. Engineers Pvt. Ltd –vs- Indo Alysus Industries Ltd in C.P. No. (IB)-203(ND)/2017 which decision has also been subsequently affirmed in Company Appeal (AT) (Insolvency) No.220 of 2017 by the Hon’ble NCLAT and in view of the same as already stated there is no legal assignment of a debt or a contract giving a right to the Operational Creditor in such a capacity to approach this Tribunal against the Corporate Debtor, in addition to the dispute relating as to who of the two, namely the Operational Creditor or the Edelweiss Finance Limited performed in effect the loan syndication assignment or in other words loan arrangement work which resulted in success of loan transaction.

Further from the submission made by the Ld. Counsel for the Operational Creditor and as put down in the written submissions and extracted as above that in relation to both the agreements dated 29.2.2016 with Edelweiss/ECL Finance Ltd as well as other agreements wherein the arrangers fee has been specifically mentioned and was also agreed to by the Corporate Debtor to be paid to the said Edelweiss group was all within the knowledge of the Operational Creditor and which has passed through the hands of the Operational Creditor and hence the conduct of the Operational Creditor must be viewed as acquiescence on the part of the Operational Creditor being within the knowledge of the Operational Creditor to entire transaction of loan as well as payment of arranger fee to Edelweiss Securities Ltd. No satisfactory explanation is given other than merely stating that the 3% Arranger Fee agreed to between the Edelweiss and Corporate Debtor has nothing to do With the payment of Success Fee and that the payment of 3% was agreed by the Corporate Debtor with a view to structure the loan transaction instead of paying higher rate of interest and that in any case the 2% success fee for arranging the finance is to be paid to Operational Creditor. However an important question arises under the circumstances as to who had arranged successfully for the loan i.e whether it is the Operational Creditor as contended by it or by M/s. Edelweiss Securities Ltd. and the companies belonging to the said group to which 3% arranger fees was ultimately paid by the Corporate Debtor. As the famous saying goes 'Success has many fathers, failure is an orphan', similarly in the instant case the successful disbursal of loan of Rs.250 crores by Edelweiss has made the Operational Creditor to take credit for its success which is sought to be denied by the Corporate Debtor and attributing it to another namely Edelweiss Securities Ltd. based on an agreement, namely Service-cum-engagement agreement/ letter. Hence in the absence of companies belonging to Edelweiss Securities Ltd. to whom arranger fee has been actually paid, the dispute between the parties cannot be adjudicated and hence it becomes a necessary party to the proceeding all of which takes it away beyond the jurisdiction of this Tribunal in the exercise of its powers under IBC, 2016. Under the facts and circumstances of the case there seems to be a plausible dispute put up by th

Please Login To View The Full Judgment!

e Corporate Debtor which ultimately may or may not succeed and that in this connection the contention of the Learned Counsel for the Petitioner that no notice of dispute has been sent despite issue of 2 notices of demand and hence it must be taken that there is no dispute raised and the same is only moon shine or illusory cannot be accepted for the reason that it has been repeatedly stressed by the Corporate Debtor, in the earlier round as well as in the present one, that both the notices issued under Section 8 of IBC, 2016 being the Notice of Default are not in accordance with the provisions of IBC, 2016 and hence the necessity of sending a reply did not arise. Be that as it may, even under the earlier dispensation of Companies Act, 1956 non reply to the statutory notice for winding up led to only a presumption that a company was unable to pay its debts thereby leading to winding up, but however in relation to the said presumption the Courts throughout India had consistently held that it was a rebuttable presumption and as can be demonstrated before the court upon notice. Dealing with the same the Hon’ble High Court of Karnataka in the matter of Kanchanaganga Chemical Industries Vs. Mysore Chipboards Ltd. and reported in (1998) 91 Company Cases 646 (Kar) at paragraph 7 of the judgement had observed as follows:- 7. To raise the presumption of inability to pay, it is not enough merely to show that the company has omitted to the pay the debt despite service of statutory notice, it must be further shown that the company omitted to pay without reasonable excuse and the condition of insolvency in the commercial sense exists. Even though under the new dispensation of IBC, 2016 under which this application has been preferred and to which the principles as laid down under the 1956 Act cannot be imported however an analogy can be drawn to the present dispensation therefrom as well in view of the provisions of IBC, 2016 read with the AAA Rules. It is to be seen that Rule 6 of AAA Rules specifically provides that notice of the application seeking to unfold CIRP against a Corporate Debtor is required to be given to such Corporate Debtor and the same has been held to be virtually mandatory by the Hon’ble NCLAT as adherence to the principles of natural justice by which procedure proceedings are required to be conducted by this Tribunal as provided under Section 424 read with Section 420 of the Companies Act, 2013. Mere notice without hearing the Corporate Debtor in relation to the claim virtually militates against the principles of natural justice and in view of the same the Corporate Debtor must be given an opportunity in order to ascertain as to why no reply by way of notice of dispute as envisaged under Sections 8 and 9 of IBC, 2016 was sent to the notice of default as issued by the Operational Creditor and if credible reasons are given therefor which is not a mere bluster or illusory the same is required to be taken into consideration while adjudicating. In the instant case in view of the plausible reasons which have been given by the Corporate Debtor and as dealt with as above, there is sufficient ground by way of rebuttal of the presumption which is sought to be raised on behalf of the Operational Creditor arising out of non-receipt of notice of default. Thus in view of all the above, the Petition stands dismissed but without cost.
O R