TaxTMI 
TaxTMI 
2020 (1) TMI 808
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....ng 1854.51 sq. ft. carpet area along with ancillary areas admeasuring 869.87 on the 18th floor and 1 plus 1 tandem car parking spaces for a lumpsum consideration of Rs. 9,35,56,150/- from the Corporate Debtor. The Corporate Debtor issued a letter of allotment dated 17.01.2015 in favour of the Petitioners. The Petitioners obtained loan from sister concern of Corporate Debtor who is L&T housing finance Ltd. and thereafter the financial facility was shifted to Axis bank. 3. An agreement for sale was executed by the Corporate Debtor in favour of the Petitioners on herein 31.03.2017. According to the terms and conditions of the agreement for sale, the Corporate Debtor at Clause No. 15 agreed to hand over vacant possession of the said flat to the purchaser on or before July 2018, with a grace period of six months i.e. latest by 31.01.2019, provided that all amounts due and payable by the petitioners are paid. This was agreed to be the handover date. 4. Clause 15 (i) of the agreement is extracted below, which provides for the grace period of six months to the Corporate Debtor as referred above: "15. The developer hereby covenants as follows: (i) the developer shall hand over the vac....
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....offer the Corporate Debtor would abide by option exercised by the Petitioner and would refund all the amounts claimed by the Petitioner. The Petitioners requested the Corporate Debtor to send such offer in writing, however, no such offer was received by the Petitioner. Finally, the Petitioner sent a demand notice through their lawyer on 06.05.2019 claiming refund of amounts paid and agreed liquidated damages. On 17.05.2019, the Corporate Debtor sent a reply, categorically stating that the occupation certificate has been received and that the claim for refund of sale price is absolutely misconceived and erroneous. On 06.06.2019, the Petitioner sent rejoinder to the reply of the Corporate Debtor refuting the false allegations made therein and once again demanded the amounts claimed. 6. The Corporate Debtor filed the reply and briefly explained that under the terms of the letter of intent dated 23.12.2011 issued by slum rehabilitation authority (SRA), (i) Omkar Realtors and Developers Pvt. Ltd., (ii) M/s. Shree Siddhivinayak enterprises, (iii) Darshan Realtors Pvt. Ltd. (Collectively referred to as OMKAR) are undertaken a SLUM rehabilitation scheme over land admeasuring 71,687 sq. mt....
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.... caused due to operation of stay order. The aforesaid factors affected the construction and ability to obtain occupation certificate for the subject building by about 6 months. 10. The Corporate Debtor submitted that due to delay of construction of fire fighting ramp there was delay in making the application for Occupation Certificate (OC) by 6 months and as such vide Email dated 11.05.2019 they informed the Petitioner that OC for the flat has been received. On 07.06.2019, the Corporate Debtor offered possession of the said flat to the Petitioner. The Petitioner has failed to take possession of the said flat and has instead approached the Tribunal invoking clause 15 (iii). 11. The Corporate Debtor also submitted that there is no default of any financial debt due within the meaning of the Code, and that the Petitioners is trying to jump shift since there is a slump in real estate market. The Corporate Debtor further claimed that the Petitioners are speculative investors and not entitled to initiate the Corporate Insolvency Resolution Process against the Corporate Debtor and have filed the present Petition with ulterior motive of coercing the Corporate Debtor. The Corporate Debtor ....
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....s such the Petitioners on 01.02.2019, rightly invoked clause 15 (iii) and claimed the refund of the purchase amount paid to the Corporate Debtor along with a sum of Rs. 1 lac as pre-estimated damages and interest @9% simple interest. Clause 15. (iii) is extracted below: "(iii) Subject to the Clause 15.1 as mentioned above, if the Developer does not give possession of the said Unit to the Purchaser on or before time as stipulated in Clause 15.1 above, then the Developer shall be liable on demand in writing of the Purchaser to refund to the Purchaser the amounts already received by them in respect of the said Unit with the simple interest at 9 (nine) percent per annum from the date the developer received the sum till the date the amounts and interest thereon is paid together with a sum of Rs. 1,00,000/- (rupees One lakh Only) as and by way of genuine pre-estimated agreed liquidated damages." 16. The Counsel for the Corporate Debtor argued that there was a delay in handing over the delivery of the said flat in view of the stay order of the City Civil Court, Mumbai, as a consequence of this stay order being vacated on 20.11.2017. There was a delay in construction of said towers and ....
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....tor for purchase of the said flat. The Petitioners chose to seek refund of purchase amount on the very next day of end of 6 months extension time to hand over the flat and have not considered that the flat was offered for possession and delivery immediately upon receipt of part OC on 07.06.2019. The delay of delivery of the said flat was only for a period of 4 months and this was within the extended time frame as per to clause 15 (i) on account of force majeure and the same has been recorded on the official website of RERA which records the time of completion of the project from 31.01.2019 to 30.09.2019. 20. Upon perusal of the relevant portion of seeking registration with RERA and seeking extension of time is incorporated at Section 6 of the Real Estate (Regulation and Development) Act, 2016 (RERA) which is as follows: "6. Extension of registration- the registration granted under section 5 may be extended by the Authority on an application made by the promoter due to force majeure, in such form and on payment of such fee as may be prescribed: Provided that the Authority may in reasonable circumstances, without default on the part of the promoter, based in the facts of each ca....