TaxTMI 
TaxTMI 
2020 (1) TMI 237
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....Companies Act, 1956. The registered office of the respondent corporate debtor is situated at 391, Haveli Haider Kuli, Chandni Chowk, Delhi - 110006. Since the registered office of the respondent corporate debtor is in Delhi, this Tribunal having territorial jurisdiction over the place is 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. The precise case of the applicant is that in the month of October, 2015, the corporate debtor, through its Directors, approached her to invest in the project namely '3 Dimension' situated at Village Noor Nagar, Raj Nagar Extension, Uttar Pradesh. 4. Believing upon the presentation by the directors of the corporate debtor, applicant made an initial payment of Rs. 1,00,000/- via cheque number 002766 dated 16.10.2015 drawn on Allahabad Bank to the respondent for booking an under-construction flat in their project "3 Dimension". 5. Subsequently the financial creditor made a further payment of Rs. 3,50,000/- for booking the under-construction flat in the project "3 Dimension", there by....
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....ees Nine Lakhs Two Thousand Two Hundred and Fifty Only) is due from the respondent company including interest as on 31.01.2019. 12. It is seen from the case records that service could not be effected on the registered address of the respondent nor could the service be successfully effected through email, as the email also bounced back. Accordingly, direction was issued on 27.03.2019 to make substituted service in accordance with the provisions of Rule 38 of the NCLT Rules, 2016 read with Order V Rule 20 of CPC. In response to the substituted service taken out by the petitioner, learned counsel for the respondent appeared on 02.05.2019. The respondent was directed to deposit a sum of Rs. 20,000/- in the account of the applicant in lieu of the expenses for the substituted service and was also directed to file reply within 10 days. 13. However, respondent preferred neither to pay cost nor to file reply and even did not put in appearance on 22.05.2019. Accordingly, respondent was proceeded ex parte. On the next two dates of hearing no one appeared on behalf of the respondent. Consequently, the arguments of the petitioner were heard in the absence of respondent and the matter was ....
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....acility or the issue of bonds, notes, debentures, loan stock or any similar instrument; (d) the amount of any liability in respect of any lease or hire purchase contract which is deemed as a finance or capital lease under the Indian Accounting Standards or such other accounting standards as may be prescribed; (e) receivables sold or discounted other than any receivables sold on non-recourse basis; (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 sub-clause- (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 (16 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 an....
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.... as it originally appeared in the Code being a residuary provision, always subsumed within it allottees of flats/apartments. The explanation together with the deeming fiction added by the Amendment Act is only clarificatory of this position in law." (Emphasis given) 19. In view of the proposition of law settled by the Hon'ble Supreme Court, allottees/home buyers are to be regarded as financial creditors in terms of Section 5(8)(f) of the Code. Hon'ble Supreme Court has further made it clear that the allottees/home buyers can avail the remedies available under the provisions of the Code. 20. In the present case the petitioner had booked a flat on payment booking amount. The various dates of disbursement of the said disbursed amount including the details of flat have been furnished in the application. The Allotment Agreement dated 22.05.2016 executed with the petitioner has been placed on record. Petitioner has also placed on record copies of cheques and receipts given by the respondent; in support of the disbursement of the amount to the respondent corporate debtor. 21. Since the amount has been raised from the petitioner/allottee under a real estate project, petiti....
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....her evidence furnished by the financial creditor under sub-section (3). (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) default has not occurred or the application under sub-section (2) is incomplete or any disciplinary -6- Company Appeal (AT) (Insolvency) No. 428 of 2018 proceeding is pending against the proposed resolution professional, it may, by order, reject such application: Provided that the Adjudicating Authority shall, before rejecting the application under clause (b) of sub-section (5), give a notice to the applicant to rectify the defect in his application within seven days of receipt of such notice from the Adjudicating Authority. (6) The corporate insolvency resolution process shall commence from the date of admission of the application under sub-section (5). (7) The Adjudicating Authority shall communicate- (a) the order under clause (a) of sub-section (5) to the financial cre....
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....rectify the defect within 7 days of receipt of a notice from the adjudicating authority. Under sub-section (7), the adjudicating authority shall then communicate the order passed to the financial creditor and corporate debtor within 7 days of admission or rejection of such application, as the case may be." 25. The present application under Section 7 of the Code for initiation of Corporate Resolution Insolvency Process has been filed by petitioner financial creditor in Form-1 in terms of Rule 4 of Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 accompanied with required information, documents and records as prescribed under the Rules. 26. The petitioner has proposed the name of Mr. Akarsh Kashyap, for appointment as Interim Resolution Professional having registration number IBBI/IPA-001/IP-P00566/2017-18/11042, resident of D-3, LGF, Lajpat Nagar Part-1, New Delhi-110024 with email-id [email protected]. Mr. Akarsh Kashyap has agreed to accept the appointment as the interim resolution professional and has signed a communication in FORM 2 in terms of Rule 9(1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. ....
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....tor as consideration for purchase of flat. However, the respondent failed to construct the flat nor returned the debt disbursed by the applicant. It is accordingly reiterated that respondent corporate debtor has committed default in repayment of the outstanding financial debt which exceeds much above the statutory limit of rupees one Lakh. Besides it is also seen that the application filed in Form - I under Section 7 of the Code read with Rule 4 of the Rules is complete and there is no infirmity in the same. Moreover, the material on record reveals that there is no disciplinary proceeding pending against the proposed IRP. It is thus seen that all the requirements of Section 7(5)(a) of the Code stand fulfilled. 32. As a sequel to the above discussion and in terms of Section 7(5)(a) of the Code, the present application is admitted. 33. Mr. Akarsh Kashyap, having registration number IBBI/IPA-001/IP-P00566/2017-18/110042, resident of D-3, LGF, Lajpat Nagar Part-1, New Delhi-110024 with email-id [email protected] is appointed as an Interim Resolution Professional. 34. We direct the applicant Financial Creditors to deposit a sum of Rs. 2 Lakhs with the Interim Resolution Pr....