Parul A Vora Vs Kavya Buildcon Private Limited (NCLT Mumbai)
Bench is of considered view that the IBC does not protect the interest or claim of the partner against another partner or the Firm as such though, the Financial Creditor may be entitled to the claims against the Corporate Debtor under any other law in force which may provide the legal recourse to the Financial Creditor.
FULL TEXT OF THE NCLT DELHI ORDER
This Company Petition filed under section 7 (“the Petition”) of the Insolvency and Bankruptcy Code, 2016 (IBC) by Parul A Vora (“the Financial Creditor or FC”), seeking to initiate Corporate Insolvency Resolution Process (CIRP) against Kavya Buildcon Private Limited (“the Corporate Debtor or CD”).
2. The Corporate Debtor is a Private Limited Company limited by shares and incorporated on 29.03.2004 under the Companies Act, 1956, with the Registrar of Companies, Maharashtra, Mumbai. Its registered office is at 2nd Floor, 99C, Kavya Aura, Sitaram Ghadigaonkar Marg, Tulsiwadi, Tardeo, Mumbai- 400034. Therefore, this Bench has jurisdiction to deal with this petition.
Submissions on behalf of the Financial Creditor:
3. The Financial Creditor submits that on 12.10.09 he had disbursed vide RTGS an amount of Rs.5,25,000/- (Rupees Five Lakh Twenty Five Thousand Only) in favor of M/s Kavya Construction Co. (hereinafter referred to as “borrower firm”) of which Corporate Debtor is a partner and to corroborate the same the Financial Creditor has submitted the bank statement of the Financial Creditor evidencing the transfer of loan to borrower firm, which is attached to petition as Exhibit III (Pg 13 of CP).
4. The Financial Creditor has stated in part IV Form 1 that the total outstanding amount due and payable by the Corporate Debtor to the Financial Creditor as on 31.03.19 is Rs.9,72,876/- where interest has been calculated @12%p.a. (page 80 of CP).
5. The Financial Creditor submits that on 01.04.12 a confirmation of accounts was received from Kavya Construction Co. (partnership firm in which the Corporate Debtor is a partner), which is annexed to petition as Exhibit IV (Pg 14 of CP). Another confirmation of accounts were received from Kavya Construction Co. on 01.04.16 and 01.04.17, which are annexed to petition as Exhibit V (Pg 15 of CP) and Exhibit VI (Pg 16 of CP).
6. The Financial Creditor has relied on a copy of Deed of Retirement from partnership dated 31.12.15 to establish that Corporate Debtor is a partner of M/s Kavya Construction Co. (borrower firm) and thus Corporate Debtor is personally and jointly liable for repayment of the amount borrowed by the borrower firm. The same has been annexed in Exhibit VII (Pg 17-28 of CP).
7. The Financial Creditor has submitted ledger accounts from 01.04.12 to 31.03.16 and from 01.04.16 to 31.03.19, the same are annexed hereto and marked as Exhibit VIII (Pg 29-30 of CP).
8. Financial Creditor has submitted bank account statement of Financial Creditor for the period 01.04.09 to 20.05.19, evidencing receipt of interest amounts with respect to the said loan, which is annexed hereto as Exhibit IX (Pg 31-68 of CP).
9. The Financial Creditor has also relied on Form 26AS which reflects that TDS (Tax Deducted at Source) has been deducted by the borrower firm and the same has been annexed to the Petition as Exhibit X (Pg 69-79 of CP).
10. A copy of demand notice sent by Financial Creditor to the borrower firm and its partners dated 27.04.19 has been submitted by the Financial Creditor, which has been annexed hereto as Exhibit XI (Pg 80 of CP).
Submissions on behalf of the Corporate Debtor:
11. The Corporate Debtor submits that the claim of the Financial Creditor does not fall under the definition of financial debt under Section 5(7) of the Code and thus the petition under Section 7 is not maintainable. It is the claim of the Corporate Debtor that the Financial Creditor has not provided any loan to the Corporate Debtor. Also, the Financial Creditor has not produced any document to show that the financial debt is owed to the Financial Creditor from Corporate Debtor. The Corporate Debtor submits that the provisions with respect to proceedings to be initiated against the Partnership firms have not been notified. Hence, in absence of any provision under the Code, the present Petition needs to be dismissed.
12. The Corporate Debtor relied on the Hon’ble NCLAT in the case of Gammon India Ltd Versus Neelkanth Mansions and Infrastructure Private Limited (2018 SCC Online NCLAT 994) wherein at para 11 it has been held that “It is not in dispute that the amount due to the Appellant is from ‘Gammon Neelkanth Realty Corporation’. The bill was raised against the said partnership firm namely-‘Gammon Neelkanth Realty Corporation.’ ‘Neelkanth Realtors Private Limited.’, ‘Gammon Housing Estate Developers Ltd.’ and ‘Neelkanth Mansions and Infrastructure Private Limited’ are the partners, therefore, even if one of the partners or more than one partner is the ‘Corporate Debtor’; as the amount is due from the partnership firm, the application under section 9 of the ‘I&B Code’ against one of the partners of such partners firm will not be maintainable”. The above order dated 19.12.18, has been annexed to reply as Annexure 1.
13. The Corporate Debtor submits that the Tribunal in identical matters, wherein similar issues were involved, has dismissed the Company Petitions. The details of the said matters and the orders passed therein are as follows:
