TaxTMI 
TaxTMI 
2020 (8) TMI 577
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....Respondent has been noticed by the Adjudicating Authority, as noticed below: The 1st Respondent is an individual, as reflected in Part-I of the Application. Part-II of the Application discloses the details of the 'Corporate Debtor' from which it is seen that the 'Corporate Debtor' was incorporated on 04.07.2006 and the nominal share capital and the paid up share capital is stated to be Rs. 1,20,00,000/- and Rs. 3,75,000/- respectively. The registered office of the 'Corporate Debtor' is stated to be situated at R-19, 3rd Floor, Near Shakarpur, Laxmi Nagar, Vikas Marg, Delhi-110092 which address is also reflected in the Master Data as filed by the 1st Respondent annexed at Annexure-P1. The 1st Respondent in Part-III of the Application proposes the name of the Interim Resolution Professional (IRP) being one Mr. Sunil Prakash Sharma having the registration No.IBBI/IPA-002/IP-N00551/2017-2018/11726. Part-IV of the Application discloses the amount of debt granted by the 1st Respondent to the 'Corporate Debtor' which is stated to be in a sum of Rs. 44,10,784/- and the details of the financial debt have also been given by way of a tabulation from which it is seen that the payment commen....
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.... Apart from the above complaint, the 1st Respondent has not approached any other forum, it is averred in relation to the present cause or claim. 3. The 'Corporate Debtor' brought to the notice of the Adjudicating Authority the decision of the Hon'ble Supreme Court in "Pioneer Urban Land and Infrastructure Limited & Anr. v. Union of India & Ors.− (2019) SCC OnLine SC 1005" and the obligation of the 1st Respondentallottee, who was alleged to be a defaulter. However, the Adjudicating Authority taking into consideration the fact that there is existence of financial debt and non-delivery of the possession of the project within time prescribed and for non-refund of the amount paid, held that there is a default and admitted the application. 4. Learned counsel for the Appellant submitted that as per the terms and conditions of the 'Flat Allotment Agreement' dated 3rd August, 2012 that was signed and acknowledged by the 1st Respondent with open eyes and without any coercion or compulsion, the 1st Respondent was bound to adhere to the payment schedule as annexed with the present appeal. 1st Respondent had admitted before the Adjudicating Authority that he paid the total amount at....
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....olicy framed by NOIDA Authority but all request met deaf ears each time. Therefore, the main allottee of the land had agitated the issue before the Hon'ble Supreme Court by way of the Appeal No. 3593 of 2018 which is still pending before the Apex Court for adjudication in which notices were already issued to the NOIDA Development Authority. In such circumstances, claiming of such huge interest on behalf of 1st Respondent validation in the eyes of law. 8. It was submitted by the counsel for the Appellant that the project of the 'Corporate Debtor' hit the road block due to the order of status quo passed by the Hon'ble High Court of Judicature at Allahabad, on the land where the project of the Appellant is situated, in Writ Petition No. 61567 of 2015 titled as "Omveer Singh & Anr. v. State of U.P. & Ors." vide order dated 3rd March, 2016 in which Petitioner therein were claiming to be the co-share with transferable rights of certain plots situated in Village Baraula, Pargana and Tehsil Dadri, District Gautam Budh Nagar. The allegation was made against the Noida Development Authority that without acquisition of land and without any authority of law it has transferred the said land i....
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....the amendment application whereby it was directed to the 'Corporate Debtor' to provide the possession of the Flat upto September, 2019 and failing which the deposit amount of the 1st Respondent shall be refunded back with interest. 13. It was alleged that the 1st Respondent had been continuously and persistently breaching the terms and conditions of the allotment agreement entered into between the 1st Respondent and the 'Corporate Debtor' and had further defaulted in making timely payment. The Clause 18 of the flat allotment agreement specifically provides that timely payment is the essence of the agreement. 14. During the pendency of this appeal, the parties have settled the matter by Agreement dated 24th October, 2019 which is brought on record. 15. Though the parties have settled the matter, it is desirable to notice the relevant facts, which the Adjudicating Authority has failed to notice. 16. The 'Flat Allottee(s)'s Agreement' dated 3rd August, 2012 was not referred by the Adjudicating Authority which stipulates cause of default of payment by allottees. As per Clause 55, the default in making payment by any of the Flat Allottees in case of allotment in joint names ....
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.... (I) of sub-section (2) of section 4. (4) The allottee shall be entitled to claim the refund of amount paid along with interest at such rate as may be prescribed and compensation in the manner as provided under this Act, from the promoter, if the promoter fails to comply or is unable to give possession of the apartment, plot or building, as the case may be, in accordance with the terms of agreement for sale or due to discontinuance of his business as a developer on account of suspension or revocation of his registration under the provisions of this Act or the rules or regulations made thereunder. (5) The allottee shall be entitled to have the necessary documents and plans, including that of common areas, after handing over the physical possession of the apartment or plot or building as the case may be, by the promoter. (6) Every allottee, who has entered into an agreement for sale to take an apartment, plot or building as the case may be, under section 13, shall be responsible to make necessary payments in the manner and within the time as specified in the said agreement for sale and shall pay at the proper time and place, the share of the registration ch....
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....ay in making payment towards any amount or charges to be paid under sub-section (6). 23. In terms of sub-section (10) of Section 19 of the RERA, it is also the duty of the allottee to take physical possession of the apartment, plot or building as the case may be, within a period of two months of the occupancy certificate issued for the said apartment, plot or building, as the case may be. Thereafter, in terms of sub-section (11) of Section 19 of the RERA, the allottee is also required to participate towards registration of the conveyance deed of the apartment, plot or building, as the case may be. 24. The Hon'ble Supreme Court also noticed the Rules framed by 'Andaman and Nicobar Islands Real Estate (Regulation and Development) (General) Rules, 2016' which includes 'interest payable by promoter and allottee' and the 'timelines for refund' and observed: "57. It can thus be seen that just as information utilities provide the kind of information as to default that banks and financial institutions are provided under Sections 214 to 216 of the Code read with Regulations 25 and 27 of the Insolvency and Bankruptcy Board of India (Information Utilities) Regulations, 2017, al....
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....Agreement has been reached by the 1st Respondent on 24th October, 2019, as quoted hereunder: 27. For the aforesaid reasons, we hold that the application under Section 7 was fit to be rejected. We, accordingly, set aside the order dated 9th October, 2019 and dismiss the application under Section 7 filed by the 1st Respondent- Mr. Aamir Jamal. The Appellant is directed to adhere to the 'Terms of Settlement'. The 'Interim Resolution Professional' is entitled for fees and costs, as it is not determined in the Agreement. The Adjudicating Authority will determine the same and whatever the amount payable, it will be borne by the 'Corporate Debtor'. 28. In the result, the 'Corporate Debtor' (company) is released from all the rigours of 'Moratorium' and is allowed to function through its Board of Directors from immediate effect. The 'Interim Resolution Professional' will hand over the assets and records to the Board of Directors. The appeal is allowed with aforesaid observations and directions. No costs. ============= Document 1 à¤à¤¾ à¤à¤• सौ नीय गैर नà¥à¤¯à¤¾à¤¯à¤¿à¤• 5.100 C00100 ....
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....r's Agreement, the possession of the Said unit was to be handed over to the Second Party, in December 2014, but the First Party failed to provide the possession of the said unit for the reasons best known to them. Thus being aggrieved by such default Second party initiated various Legal Proceedings against the First Party as mentioned herein below: 1. District Forum Delhi case no. 769/2014 2. Allahabad High Court Writ Petition no. 62800/2015 3. Allahabad High court Contempt Application no.1116/2017 4. Rera Authority Greater NOIDA complaint no. 220187220/2018 5. NCLT IB 1598 (ND) 2018 6. Representation before NOIDA Authority The Hon'ble NCLT vide it's order dated 16.10.2019, was pleased to allow the application of the Second Party under section 7 of IB Code and appointed Shri Sunil Prakash Sharma, as an IRP of M/s Futec Shelter Against the said order dated 16.10.2019, the first party approached the NCLAT wherein notice has been issued and the next date is fixed as 19.11.2019. The Parties have agreed to settle the dispute and differences amicably/mutually, on the following terms and conditions: O.P. SINGH NOW THIS AGREEMENT ....