2019 (2) TMI 1041

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....ted (CIN U45200DL2007PTC202952) was incorporated on 16.05.2007 under the provisions of the Companies Act, 1956. The registered office of the respondent corporate debtor is situated at C-23, Greater Kailash Enclave, Part-1, New Delhi-110048. Its authorized share capital is Rs. 6,00,00,000/- and the paid up share capital is Rs. 5,05,43,450/- which is based on the details given in master data obtained from the official website of Registrar of Companies (Annexure-K). Since the registered office of the respondent corporate debtor is in Delhi, this Tribunal being Adjudicating Authority has territorial jurisdiction in respect of respondent corporate debtor as per the provisions of sub-section (1) of Section 60 of the Code. 3. The 'Financial Creditor'-Petitioner has proposed the name of Interim Resolution Professional, Shri Prabhjit Singh Soni, GG-1/144/C, Vikas Puri, Near PVR, New Delhi-110018, email id [email protected]. He has registration No. IBBI/IPA-002/IP-N00065/2017-18/10143. A written communication sent by him in terms of Rule 9(1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 has also been placed on record [Annexure-M (coll....

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....relevant extract of the Agreement reads thus:- "5.5 Subject to the Buyer having complied with its obligation under this Agreement as well as the Allotment Letter, including but not limited to timely payment of the Consideration and other charges as per Payment Plan opted by the Buyer, in the event of any wilful delay in construction of the Apartment for reasons attributable solely to the Company, delay charges would be payable to the Buyer, in the manner and to the extent specified hereinbelow: Period of Delay (Months) Penalty Per Month (Rs. Per Sq. ft.) 1-3 5.00 4-6 7.50 7 onward 10.00 It is hereby clarified that the abovesaid delay charges shall be payable, subject to a demand being made by the Buyer for the same (and be calculated from the date of the said demand), till the date when possession of the Apartment is offered to the Buyer. Further, all payments towards the delay charges, as due from the Company would be adjusted from payments due to the Company from the Buyer at the time of the final settlement thereof. Provided specifically that, the Company shall be entitled (without the payment of any delay charges) to not offer ....

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....s were restrained from extracting ground water for the purpose of construction. The unrest and agitation by the farmers against acquisitions of the land by the Noida authority/U.P. Govt. On account of lack of availability of sand in light of the Maa Durga Shakti Nagpal's case whereby various executive orders were passed prohibiting excavation of sand from Yamuna river bed. In view of the order dated 14.08.2013 passed by Hon'ble NGT whereby preventing the builder from carrying on construction activity within 10 km radius of the Okhla Bird Sanctuary. Effect of demonetization due to which the pace of construction got affected. Lastly on account of order dated 09.11.2017 passed by NGT whereby preventing the builder from carrying the construction activity on account of heavy smog in Delhi NCR. By taking shelter of the aforesaid reasons it was highlighted by the Corporate Debtor that the delay in completion of the project is totally beyond the control of the Respondent company. (v) Clause 5.2 of the Agreement provides the force majeure factors that are treated to be beyond the control of the Corporate Debtor. Under this clause if delay in handing over possession to the p....

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....sional has also been clearly specified. 13. Having heard the learned counsel for the parties it would first be necessary to examine the provisions of Section 7 (2) and Section 7 (5) of IBC which read as under:- "Initiation of corporate insolvency resolution process by financial creditor. 7(1)....................... 7 (2) The financial creditor shall make an application under sub-section (1) in such form and manner and accompanied with such fee as may be prescribed. 7(3) ....................... 7(4)....................... 7 (5) Where the Adjudicating Authority is satisfied that- (a) a default has occurred and the application under sub-section (2) is complete, and there is no disciplinary proceedings pending against the proposed resolution professional, it may, by order, admit such application; or (b)......................." 14. A conjoint reading of the aforesaid provision would show that form and manner of the application has to be the one as prescribed. It is evident from the record that the application has been filed on the proforma prescribed under Rule 4(2) of the Insolvency and Bankruptcy (Applicatio....

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....8)(f) of the Code and the explanation appended thereto. In that regard we draw support from the observations made by Hon'ble the Appellate Tribunal in the case of Rajendra Kumar Saxena v. Earth Gracia Buildcon (P.) Ltd. passed in Appeal (AT) (Insolvency) No. 187 of 2018 wherein it has been held as under: "By the Insolvency and Bankruptcy Code (Amendment) Ordinance, 2018 No. 6 of 2018 dated 6th June, 2018 followed by the Act, in clause (8), in Sub-clause (f), of Section 5 an explanation has been inserted as per which any amount raised from an allottee under a real estate project shall be deemed to be an amount having the commercial effect of a borrowing. Thereby, after amendment of the Act, the allottees of real estate project have been treated as 'Financial Creditors'." (Emphasis supplied). A bare perusal of the aforesaid paragraph of the judgment would show that even without any element of 'assured return' an allottee in the real estate project has to be regarded as a 'Financial Creditor'. The petitioner eminently fulfills the aforesaid condition. 17. The petitioner has filed copy of the ledger (at pg. 53) in the name of the petitioner of....

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....visions of Section 14(1)(a), (b), (c) & (d) and, thus, the following prohibitions are imposed which must be followed by all and sundry: "(a) the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; (b) transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; (c) any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; (d) the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor." 24. It is made clear that the provisions of moratorium shall not apply to (a) such transactions which might be notified by the Central Government in consultation with any financial regulator; (b) a surety in a contract of guarantor to a Corporate....