NCLAT Orders Ansal Housing to Pay Money to Operational Creditor

NCLAT Orders Ansal Housing to Pay Money to Operational Creditor

The National Company Law Appellate Tribunal (NCLAT), Delhi, while setting aside the order passed by the National Company Law Tribunal (NCLT), directed Ansal Housing to pay Rs. 12.72 lakh to Clicbrics Technologies.

The present appeal was filed by the Appellant/Operational Creditor- Clicbrics Technologies Pvt. Ltd against the Respondent/Corporate Debtor- M/s Ansal Housing Ltd. under Section 61 of the Insolvency and Bankruptcy Code, 2016 (‘IBC) arising out of the order dated 22 August, 2022 (hereinafter referred as ‘Impugned Order’) passed by the Adjudicating Authority (National Company Law Tribunal (NCLT), whereby it had dismissed the application filed by Operational Creditor seeking initiation of Corporate Insolvency Resolution Process (‘CIRP’ in short) against Corporate Debtor.

The Respondent/Corporate Debtor was in the business of real estate selling plots and apartments. For this purpose, it entered into a Memorandum of Understanding (‘MoU’ in short), with the Appellant/Operational Creditor engaging them as the exclusive real estate agent for brokering the sale/purchase of units of the residential project - Ansal Town, Meerut for the period 10 July, 2018 to 31 December, 2018.

The Operational Creditor raised invoices from time to time for real estate brokering commission. However, the Corporate Debtor stopped making payments for invoices raised by the Operational Creditor with effect from 10 October, 2018. The Operational Creditor sent a Demand Notice under Section 8 of IBC on 27 March, 2019 claiming an amount of Rs.14,70,943.90.

The Corporate Debtor sent a reply to the Demand Notice on 9 April, 2019 stating that the demands/claims made by the Operational Creditor are illegal and unreasonable since there is no operational debt and that the demand notice was therefore not maintainable.

On non-receipt of any further payment from the Corporate Debtor post-service of the demand notice, a Section 9 IBC application was filed before the Adjudicating Authority by the Operational Creditor for initiation of CIRP against the Corporate Debtor. The Corporate Debtor filed its reply to the Section 9 application on 29 August, 2019.

The Adjudicating Authority held in the impugned order that the Operational Creditor had approached the Adjudicating Authority with a mala-fide intention and not for genuine resolution having shown unwillingness to accept the amounts which the Corporate Debtor had endeavoured to pay towards the outstanding dues. The Adjudicating Authority therefore dismissed the Section 9 application filed by the Appellant Aggrieved by the impugned order, the present appeal has been preferred by the Operational Creditor.

The issue that came before the division member bench of Justice Ashok Bhushan (Chairperson) and Barun Mitra (Technical Member) was whether payment of brokerage commission had been triggered in the present case giving rise to an operational debt and, if so, whether a default was committed in respect of payment of such operational debt and whether the debt was mired in disputes prior to issue of demand notice.

The bench on examining facts, found it was an n undisputed fact that an MoU dated 09 July, 2018 appointing the Operational Creditor as exclusive real estate agent for brokering the sale/purchase of units at the Ansal Town, Meerut residential project from 10 July, 2018 till 31 December, 2018 was entered into by the Corporate Debtor.

Th bench also noted that the Corporate Debtor had admitted in their application under Rule 11 of NCLT Rules, 2016 filed before the Adjudicating Authority hat the Operational Creditor was entitled for receiving payment of Rs.4,32,668.74 only and that for making payment of the said amount.

In this regard, the NCLAT observed, “We therefore come to the inescapable conclusion that there is a clear admittance of operational debt which was due and payable on the part of the Corporate Debtor and that the operational debt was beyond the threshold limit of Rs.1 lakh. Further, it is pertinent to add here that the Corporate Debtor has admitted that not only was the Operational Creditor entitled to receive payment, but the payment claimed was made in terms of the MoU and invoices were annexed with the claim.”

The bench opined that it was also unequivocally clear that even on the date of filing of reply to the Section 9 application by the Corporate Debtor, by their own admission, the operational debt which had become due and payable remained unpaid. Therefore the logical corollary is that default had been committed qua the operational debt owed to the Operational Creditor, stated the bench.

Furthermore, the NCLAT noticed during the hearing that no material was placed on record to establish that invoices were disputed by the Corporate Debtor prior to demand notice.

“Further, we notice that the Corporate Debtor has not controverted the outstanding liability. Instead they have admitted the outstanding liability before the Adjudicating Authority in their written submissions on the Section 9 application which is already noted at para 13 supra. The contents of the written submission also makes it unambiguously clear that since the Respondent had already received the payment from the allottees, the Operational Creditor was entitled for its commission. That the Corporate Debtor having already admitted their liability is also adequately substantiated from the factum of two cheques drawn in favour of the Operational Creditor,” the NCLAT observed.

The NCLAT reckoned that this was sufficient proof in itself that an operational debt was actually in existence and that such debt was not disputed prior to demand notice and that a default had been committed by the Corporate Debtor.

To sum up, the operational debt which had admittedly become due and payable having not been disputed prior to issue of demand notice and not been discharged by the Corporate Debtor, this was a fit case for admission of CIRP, the NCLAT held.

Therefore, the NCLAT ruled that the dismissal of the Section 9 petition by the Adjudicating Authority was perverse and illegal and accordingly was set aside.