TaxTMI 
TaxTMI 
2020 (2) TMI 637
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....d by the Hon'ble Supreme Court in the judgment rendered in the case of Pioneer Urban Land & Infrastructure Ltd. v. Union of India 155 SCL 622. Therefore, no doubt is left that the petitioner is Financial Creditor. 3. The Respondent company - the Corporate Debtor, M/s. Crown Realtech Private Limited (CIN U27209DL1983PTC015878) was incorporated on 07.06.1983 under the provisions of the Companies Act, 1956. The registered office of the respondent corporate debtor is 2nd Floor, Rajendra House, El/Bl, Mohan Cooperative Industrial Estate, New Delhi-110044. 4. The 'Financial Creditor' - Petitioner has proposed the name of Resolution Professional, Shri Amit Agarwal (Company Secretaries) with the address H-63, Vijay Chowk, Laxmi Nagar, Delhi-110092. His Registration number is IBBI/IPA-002/IP-N00422/2017-18/10456. He has filed his written communication which satisfies the requirement of Rule 9(1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 along with the certificate of registration. 5. The case of the petitioner in nutshell is that he had booked a commercial space admeasuring 7726 sq. ft. comprised in flat Nos. 409, 410 & 411 on t....
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....n making payment towards interest by the Respondent. As a result, the Petitioner wrote a letter dated 10.06.2016 (Annexure-IV) to the Respondent requesting it to comply with the terms of the agreement in delivering the possession and in making the payment of interest. Thereafter another letter dated 13.08.2018 (Annexure-VI) was written showing his willingness in terminating the agreement and seeking refund of the entire amount paid by them but all in vain. The petitioner has availed the remedy under Section 7 by filing the instant petition. 8. The precise case of the Petitioner thus is that the total amount in default due and payable to the Petitioner by the Respondent-Corporate Debtor as on 31.08.2018 is Rs. 8,43,57,228/- inclusive of interest and liquidated damages. 9. Learned counsel for the Corporate Debtor has advanced numerous arguments to resist the admission of the petition by arguing as under:- (i) The Respondent had earlier applied for occupation certificate in respect of the said project. However, the office of Director Town & Country Planning Department vide letter dated 06.03.2019 had refused the permission on account of incomplete rain water harves....
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.... Respondent. It has also cleared the statutory liability of Rs. 4.25 crores as on 02.08.2019 towards External Development Charges and has also paid a sum of Rs. 40.75 lakhs towards payment of statutory taxes as on 19.07.2019. (viii) The Petitioners who have filed the various petitions before this Tribunal have pleaded that they have booked the units for their own use and the purpose of their allotment. In absence of the specific pleadings in this regard, these petitioners can be classified as speculative investors, who are not genuinely interested in purchasing the unit. 10. Having heard learned counsel for the parties we are of the considered view that the Financial Creditor has succeeded in establishing a case for triggering the Corporate Insolvency Resolution Process. 11. Before discussing the legal issues raised, we deem it appropriate to first refer to the material clause of the agreement. According to clause 6(d) of the agreement the Corporate Debtor had proposed to handover the possession of the said unit on or before December, 2012 with grace period of three months. It is further postulated by the said clause that in case the Corporate Debtor is not able to h....
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....akes the risk of his flat/apartment not being completed in the near future, in the event of there being a breach on the part of the developer. Under the Code, he may never get a refund of the entire principal, let alone interest. This is because, the moment a petition is admitted under Section 7, the resolution professional must first advertise for and find a resolution plan by somebody, usually another developer, which has then to pass muster under the Code, i.e. that it must be approved by at least 66% of the Committee of Creditors and must further go through challenges before NCLT and NCLAT before the new management can take over and either complete construction, or pay out or refund amounts. Depending on the kind of resolution plan that is approved, such home buyer/ allottee may have to wait for a very long period for the successful completion of the project. He may never get his full money back together with interest in the event that no suitable resolution plan is forthcoming, in which case, winding up of the corporate debtor alone would ensue. On the other hand, if such allottee were to approach the Real Estate Regulatory Authority under RERA, it is more than likely that the....
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....e time value of money and includes any amount raised under any other transaction including the sale or purchase agreement, which has commercial effect of a borrowing.The explanation has clarified that any amount raised from an allottee under a 'real estate project' was to be considered as an amount having the commercial effect of a borrowing and the expression 'allottee' and the 'real estate project' are to have the meanings respectively assigned to them in clauses (d) and (zn) of Section 2 of the Real Estate (Regulation and Development) Act, 2016. It is the aforesaid provision which was subject matter of challenge before the Hon'ble Supreme Court in a bunch of petitions. In the lead case titled as Pioneer Urban Land & Infrastructure Ltd's. case (supra) the conclusion of detailed discussion has been recorded in para 86 by the Hon'ble Supreme Court which reads as under:- "Conclusion i. The Amendment Act to the Code does not infringe Articles 14, 19(l)(g) read with Article 19(6), or 300-A of the Constitution of India. ii. The RERA is to be read harmoniously with the Code, as amended by the Amendment Act. It is only in the....
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.... and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, we are satisfied that a default has occurred and the application under sub-section 2 of Section 7 is complete. The IRP proposed does not have any disciplinary proceedings pending against him. 22. As a sequel to the above discussion, this petition is admitted and Mr. Amit Agarwal is appointed as an Interim Resolution Professional. 23. In pursuance of section 13(2) of the Code, we direct that Interim Insolvency Resolution Professional to make public announcement immediately with regard to admission of this application under Section 7 of the Code. 24. We also declare moratorium in terms of section 14 of the Code. It is made clear that the provisions of moratorium are not to apply to transactions which might be notified by the Central Government. Additionally, the supply of essential goods or services to the Corporate Debtor as may be specified is not to be terminated or suspended or interrupted during the moratorium period. These would include supply of water, electricity and similar other supplies of goods or services as provided by Regulation 32 of IBBI (Insolvency Resolution Process for Corporate Person) ....