TaxTMI 
TaxTMI 
2019 (1) TMI 1687
X X X X Extracts X X X X
X X X X Extracts X X X X
....;. 2. The Respondent Company M/S Krrish Shalimar Projects Private Limited (CIN No. U55101DL2010PTC205976) against whom initiation of Corporate Insolvency Resolution Process has been prayed for, was incorporated on 16.07.2010 having its registered office at 5/24, Ramesh Nagar, New Delhi - 110015. Since the registered office of the Respondent Corporate Debtor is in New Delhi, this Tribunal has territorial jurisdiction over the NCT of Delhi and is also the Adjudicating Authority in relation to the prayer for initiation of Corporate Insolvency Resolution Process in respect of Respondent Corporate Debtor under sub-section (1) of Section 60 of the Code. 3. It is appropriate to mention that the Financial Creditors-Petitioners namely Manjula Khullar, Satish Chander Khullar and Aanchal Khullar are "allottees" under a 'real estate project'. 4. The Petitioners have proposed the name of Mr. Anil Tayal, CA, for appointment as Interim Resolution Professional having registration number IBBI/IPA00I/IP-P01118 /2018-19/11818 resident of 1028, Routs Tower, District Centre, Laxmi Nagar, Delhi-110092 with email-id [email protected]. Mr. Anil Tayal, CA has agreed to accept appointme....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r failed to deliver the possession of the flat to the Financial Creditors on the stipulated date. 8. The Petitioners also relied upon the provision contained in Section 19(4) of the Real Estate (Regulation & Development) Act, 2016, which provides that on failure of the builder to give possession of the apartment within stipulated time, the allottee is entitled to claim refund of his deposit along with interest and compensation. It is stated that the Corporate Debtor is liable to pay interest to the petitioner at the rate of 10.45% per annum (Highest rate of MCLR- 8.45% + 2%). The Corporate debtor is also liable to pay compensation. 9. It is further asserted that the Petitioners requested the Corporate Debtor vide email dated 16.07.2018 to refund their aforesaid deposited amount. The Respondent Corporate Debtor vide email dated 23.07.2018 asked the Petitioners to visit their office for meeting. The Financial Creditors through their representative had a meeting at the office of the Corporate Debtor on 25.07.2018. However, the Corporate Debtor refused to refund the deposited money to the Financial Creditors. 10. It is submitted that the Corporate Debtor has defaulted in....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Financial Creditors within a period of 36 months plus 9 months from the date of the commencement of construction and therefore according to the Financial Creditors it is entitled to the refund of the a-tnount deposited with the Corporate Debtor in terms of section 19(4) of the Real Estate (Regulation and Development) Act, 2016. 16. It is submitted that in terms of the aforesaid apartment buyers agreement it is amply clear that clause 3.1 provides for a conditional warranty by the Corporate Debtor to handover possession of the apartment within 36 plus 9 months however it is made subject to various conditions which are as follows: a) clause 10 of the Agreement b) any circumstances not anticipated and beyond the reasonable control of the seller. c) Any restraints / restrictions from any courts/ authorities. d) And most importantly subject to the Purchaser(s) having complied with all the terms and conditions of this agreement and not being in default under any of the provisions of this agreement. 17. It is submitted that the financial creditors have suppressed material facts and without disclosing the fact that they have purchased a unit under....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the occupation certificate in respect of the project shall be filed in the due course. The seller shall be notice of offer ofpossession in writing to the purchasers with regard to the handing over of possession, where after within 30 (Thirty) days, the purchaser shall clear his outstanding dues and complete documentary formalities and take physical possession of the Apartment. In case, the purchaser(s) raise any issue with respect to any demand, the same would not entitle the purchaser(s) for an extension of time for taking over possession of the apartment. In the event the purchaser(s) fails to make all payments and except and take the possession of the Apartment within 30 (Thirty) days of the Notice of Officer of Possession, the Purchaser(s) shall be deemed to be custodian of the Apartment from such due date indicated in the Notice of Offer of Possession and the Apartment shall be held by the seller solely at the risks and costs ofthe Purchaser(s) including but not limited to applicability of the appropriate Holding Charges as defined in Clause 3.3 below and interest. The obligation of the Seller to offer possession to the Purchaser under this Clause shall be subject to Force Ma....
X X X X Extracts X X X X
X X X X Extracts X X X X
....; f) any amount raised under any other transaction, including any forward sale or purchase agreement, having the effect of a borrowing; Explanation - For the purposes of this subclause- (I) 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 and (II) The expressions, "allottee" and real estate project shall have the meanings respectively assigned to them in clauses (d) and (zn) of Section 2 of the Real Estate (Regulation and Development) Act, 2016 (1 6 of 2016) g) any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price and for calculating the value of any derivative transaction, only the market value of such transaction shall be taken into account; h) any counter-indemnity obligation in respect of a guarantee, indemnity, bond, documentary letter of credit or any other instrument issued by a bank or financial institution; i) the amount of any liability in respect of any of the guarantee or indemnity for any of the items referred to in sub-clauses (a) and (h) of this....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rate Debtor in case of default in repayment of financial debt. 27. Initiation of Corporate Insolvency Resolution Process by Financial Creditor is regulated by the provision engrafted in Section 7 of I&B Code, which reads as under: "7. Initiation of corporate insolvency resolution process by financial creditor. (1) A financial creditor either by itself orjointly with other financial creditors may file an application for initiating corporate insolvency resolution process against a Corporate Debtor before the Adjudicating Authority when a default has occurred. Explanation.- For the purposes of this subsection, a default includes a default in respect of a financial debt owed not only to the applicant financial creditor but to any other financial creditor of the Corporate Debtor. (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. (3) The financial creditor shall, along with the application furnish- (a) record of the default recorded with the information utility or such other record or evidence of default as may be specified; ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....that the Petitioners themselves have breached the terms of the agreement. Therefore, the essential requirement of 'default' for triggering the CIR Process under Section 7 has been made out. 31. In the present case Financial debt is outstanding since the year 2016. The Corporate Debtor has not denied the claim of Petitioners and has itself tried to settle the matter and the arnount of default exceeds much more than 1 lakh. In view of Section 4 of the Code, the moment default is Rupees one lakh or more, the petition to trigger Corporate Insolvency Resolution Process under the Code is maintainable. There is sufficient material on record to conclude that Respondent Corporate Debtor has committed default in repayment of the financial debt. 32. Under sub-section 5 (a) of Section 7 of the code, the application filed by the applicant financial creditor has to be admitted on satisfaction that: 1. Default has occurred. 2. Application is complete, and 3. No disciplinary proceeding against the proposed IRP is pending. 33. As a sequel to the aforesaid discussion it is seen that the applicant being a home buyer comes within the definition of Fina....
X X X X Extracts X X X X
X X X X Extracts X X X X
....porate 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 Securitization 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. " 38. It is made clear that the provisions of moratorium shall not apply to transactions which might be notified by the Central Government or the supply of the essential goods or services to the Corporate Debtor as may be specified, are not to be terminated or suspended or interrupted during the moratorium period. In addition, as per the Insolvency and Bankruptcy Code (Amendment) Act, 2018 which has come into force w.e.f. 06.06.2018, the provisions of moratorium shall not apply to the surety in a contract of guarantee to the corporate debtor in terms of Section 14 (3) (b) of the Code. 39. The Interim Resolution Professional shall perform all his functions contemplated, inter-alia, by Se....