TaxTMI 
TaxTMI 
2019 (11) TMI 1591
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....e financial creditors, the corporate debtor and perused the pleadings along with the documents placed on the case file. Brief facts narrated by financial creditors : 3. It is stated that the corporate debtor and the financial creditors have entered into an apartment buyers' agreement (hereinafter referred as agreement) dated August 7, 2012 for Unit No. 1101, Floor 12th, Tower C, admeasuring 5,800 sq.ft. (538.83 sq.mts.) in project named "Krrish Provence Estate" located in Gwal Pahari, Gurgaon, Faridabad Road, Gurgaon (hereinafter referred as subject property). The corporate debtor had issued a letter dated October 25, 2018 whereby the date of the agreement was rectified from August 7, 2011 to August 7, 2012. The subject property was transferred by the original buyers, viz., Mr. Manohar Ahuja and Mr. Om Prakash Ahuja to the financial creditors vide transfer application form dated May 5, 2012. The substitution and credit of Rs. 1,33,86,191 in the name of financial creditors was confirmed by the corporate debtor vide letter dated July 5, 2012. 4. Clause 3.1 of the agreement dated August 7, 2012 provides that the corporate debtor had proposed to hand over the possession of....
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....y defaulted to hand over the possession of the subject property in terms of the agreement dated August 7, 2012. 8. The corporate debtor on November 22, 2018 replied to the demand notice stating therein that the agreement was already cancelled by virtue of the termination notice dated June 26, 2015 and that the financial creditors wilfully breached the conditions of the agreement and committed a default by not paying the amounts in terms of the agreement, therefore the financial creditors rights were forfeited. Further, it was stated that the financial creditors were liable to pay Rs. 58,93,393.90 inclusive of service tax. Reply of the corporate debtor : 9. The corporate debtor filed its reply on September 18, 2019 and submitted that it does not owe Rs. 6,93,02,755 inclusive of the interest. The corporate debtor has submitted that agreement was entered between the financial creditors and corporate debtor and the transfer application dated May 5, 2012 along with the name substitution was done vide its letter dated July 5, 2012. Further, the corporate debtor submits that it has regularly demanded payments and there has been delays in making the payments on the part of financi....
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....arch 31, 2014. It is on record that a corrigendum to the said letter was issued on December 20, 2016 providing that the applicable rate of tax is 1.05 per cent. which comes to Rs. 3,00,615 instead of Rs. 2,86,443. As per the submissions of the financial creditors they have paid Rs. 3,00,615 on January 31, 2017 as demanded by the corporate debtor towards VAT payment, which is reflected in the statement of accounts dated October 25, 2018 placed on record. 13. On perusal of the pleadings of the parties the issues that arises are follows : "(i) Whether the application is time barred ? (ii) Whether the financial creditors have defaulted in making the payments ? (iii) Whether other efficacious remedies are available to the finan cial creditors ?" 14. Issue No. 1 : It is noted that various communications have been sent by the corporate debtor to the financial creditors by which the rights and the claims of the financial creditors are confirmed. In this connection, a reference may be made to the communication dated December 20, 2016 sent by the corporate debtor to the financial creditors for deposit of the amount of VAT of Rs. 3,00,615. Further, on December....
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.... are concurrent remedies. Therefore, the financial creditors are not legally barred to invoke the provisions of the IBC, 2016 in the case on hand. Accordingly, issue No. 3 is decided in favour of the financial creditors and against the corporate debtor. Conclusion : 17. In the facts and circumstances of the case noted above, it becomes clear that the corporate debtor has not handed over the possession of the subject property to the financial creditors, as the construction work could not be completed within the stipulated time and there is no proof for extension of time by the concerned authority. Therefore, there is debt, due and payable, which the corporate debtor failed to pay. Thus, the default on the part of the corporate debtor is ascertained based on the documentary evidenced placed on record by the financial creditors. 18. In the light of the above, the application of the financial creditors is complete in all respect. The financial creditors have also proposed the name of resolution professional, viz., Mr. Jugraj Singh Bedi after seeking his consent in form 2. There is no disciplinary proceeding pending against the IRP as evidenced from form 2. Therefore, applicati....