TaxTMI 
TaxTMI 
2019 (8) TMI 1595
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.... of the Companies Act, 1956. The registered office of the respondent corporate debtor is situated at D-64, Second Floor, Defence Colony, New Delhi- 110024. Its authorized share capital is Rs. 1,50,00,00,000/- and the paid-up share capital is Rs. 1,44,96,64,420/- which is based on the details given in master data obtained from the official website of Registrar of Companies. Since the registered office of the respondent corporate debtor is in Delhi, this Tribunal being Adjudicating Authority has territorial jurisdiction in respect of respondent corporate debtor as per the provisions of sub-section (1) of Section 60 of the Code. 3. The 'Financial Creditor'-Petitioners has proposed the name of Resolution Professional, Shri Manish Kumar Gupta having his office at 404, 4th Floor, Laxmideep Building, 9, Laxmi Nagar, District Centre, Vikas Marg, Near V3S Mall, New Delhi -110092, email id- [email protected]. He has registration No. IBBI/IPA-001/IP-P00225/2017-18/10424. A written communication sent by him in terms of Rule 9(1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 has also been placed on record (Annexure-I). There is a declaration ....
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....Rs. 74,90,000/- (Annexure-D). 6. There was apparently inordinate delay in delivering the possession of the said apartment. As a result, a legal notice dated 25.09.2018 (at pgs. 71-75) was sent by the petitioners through their counsel seeking to refund the entire amount of Rs. 1,01,25,734/- towards principal amount along with interest @ 18% per annum from the date of payment within 15 days from the date of receipt of the notice but all in vain. 7. It is claimed that the Respondent is liable to pay an amount of Rs. 1,04,36,134/- (Rupees One Crore Four Lakhs Thirty-Six Thousand One Hundred and Thirty-Four Only) to the petitioner. 8. Learned counsel for the Corporate Debtor has opposed the admission of the application and has advanced the following arguments: - (i) The real intent and spirit of the legislature in bringing about the special act namely the Real Estate Regulation Act, 2016 was to include home-buyers in the list of creditors, should any Company go into insolvency process so that they could get their monies back in case the resolution process failed and liquidation was the only recourse left. (ii) The present application is not maintainable under Section 7 of the Cod....
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....#39;s Agreement must be read as a whole and in case of any disputes thereunder, the dispute redressal mechanism is also built into the Buyer's Agreement which has not been explored by the applicant and he is trying to pressurize the respondent into caving into his undue and unlawful demands. (viii) The registration of the Project with RERA (Real Estate Regulation Act, 2016), would deem the timelines under the Buyer's Agreement to be extended/modified in consonance with the revised timelines mentioned under the undertaking given to the authority under RERA. 9. A rejoinder to the reply has been filed by the Financial Creditor dated 24.10.2019 reiterating the submissions made in the application and controverting the assertions in the reply. 10. Before embarking upon the legal issues, we deem it appropriate to first refer to the material clauses of the agreement. According to clause 7.1 of the agreement the Corporate Debtor had undertaken to complete the construction and apply for the completion certificate by 31st December 2015. A grace period of six months to apply and obtain the completion certificate/occupation certificate has also been stipulated. It is further postula....
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....the bargaining power of the parties, the choice available to the Financial Creditor-allottee and his knowledge about the contract would be relevant consideration in relation to construing the contract as a whole. In fact, there is a fundamental breach of the terms of the contract by not delivering the possession within the reasonable period. It cannot be argued by the Corporate Debtor that although I undertake to perform the contract but his liability is excluded if he fails to do so. The principles of fundamental breach have been laid down in Section 39 of the Indian Contract Act, 1872 which have been examined in details in chapters V and VI of the book titled as 'Control of Exclusion Clauses in England and India' by M.M. Kumar. Therefore, we are of the view that by no terms or clauses of the Apartment buyer's agreement the obligation to deliver possession of the apartment within reasonable period could be excluded and the argument advanced on behalf of the Corporate Debtor is hereby rejected. The amount in fact become payable on 31.12.2015 plus grace period of six months and; a maximum period of further one year could be granted. The possession should have been offere....
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....of Explanation to Section 5(8)(f) of the Code with effect from 06.06.2018. Therefore, the submission made to the contrary by respondent would not require any serious consideration. 16. It is pertinent to mention that on 04.03.2013 an Apartment buyer agreement was executed between the Petitioners & Corporate Debtor whereby the petitioners were allotted residential apartment bearing No. 1503, 14th Floor, Tower.-G having a Super Built up area of 180.230 sq. metres under the aforesaid project of the Corporate Debtor. In the light of the said agreement, the petitioners have paid the total amount of Rs. 1,01,25,734/- to the Corporate Debtor which is almost the total sale consideration. According to the terms of the agreement, the Corporate Debtor was to handover physical possession of the aforesaid unit to the petitioners by 30th June, 2016 inclusive of grace period of six months. The petitioner is thus covered by the expression 'Financial Creditor' as has been used in the amended definition of Section 5(8) (f) of the Code and the explanation appended thereto. In that regard we draw support from the observations made by Hon'ble the Appellate Tribunal in the case of Rajendra ....
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....se. Therefore, by initiation of Corporate Insolvency Resolution Process the Financial Creditor is only highlighting the default committed by the Corporate Debtor with respect to its inability to pay. The same is required to be remedied. Therefore, it cannot be concluded that the filing of the present petition would amount to recovery of the debts by the Financial Creditor. 20. As a sequel to the aforesaid discussion and the material placed on record it is confirmed that applicant-financial creditor had disbursed the money to the respondent corporate debtor as consideration for purchase of a residential apartment. Though a considerable long period has lapsed even the principal amount disbursed has not been repaid by the respondent corporate debtor as per the provision of the Apartment Buyer's Agreement. It is accordingly held that respondent corporate debtor has committed default in repayment of the outstanding financial debt which exceeds the statutory limit of rupees one Lakh. Thus, the application warrant admission as it is complete in all respects. 21. Accordingly, in terms of Section 7(5) (a) of the Code, the present application is admitted. 22. Shri Manish Kumar Gupta, ....