TaxTMI 
TaxTMI 
2021 (4) TMI 1069
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....N: U70102KA1990PTC027924 incorporated on 06.12.1990. The Authorised Share Capital of the Company is Rs. 1,10,00,00,000/- and Paid-up Share Capital is Rs. 55,96,35,000/-. (2) It is stated that the Financial Creditors are individuals who advanced money to the Corporate Debtor in pursuance of agreement for sale and agreement for construction executed on 05.09.2011 (herein referred as 'agreements'). The Financial Creditors have advanced a consolidated amount of Rs. 49,24,359/- to the Corporate Debtor. The Corporate Debtor agreed to give the possession of the apartment as per the above agreements on 01.07.2013. The date of possession of the apartment was extended several times and ultimately the possession was promised to be given by August 2016. However, the Corporate Debtor has been dishonouring the terms of the agreement since July 2016 with respect to the apartment purchased by the Financial Creditors Nupur Anchlia and Abhishek Anchlia. An apartment bearing No. C-1907, Building Floor No. 19, Tower 'C' at Mantri Celestia was allotted to the Financial Creditors vide application for allotment letter dated 31.08.2011. (3) It is stated that Financial Creditors and the....
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....ed 15.03.2016 for the possession of the said apartment to be given by August 2016. (7) It is further stated that as the possession of the apartment was not handed over by the Corporate Debtor to the Financial Creditors even after fifth promised date of handing over the apartment, the Corporate Debtor was not able to make good of its promises. Thereafter, the Financial Creditor sent a communication via registered AD and e-mail on 10.07.2016 to the Corporate Debtor seeking refund of amount paid and canceling the booking of the abovementioned apartment. Further, the Financial Creditors also approached Grahak Suvidha Kendra, a non-governmental organization herein referred as 'NGO' based out of Jaipur, Rajasthan and subsequently, 'NGO' had written to the Board of Directors of Corporate Debtor vide an e-mail dated 24.08.2016 and also a letter dated 08.09.2016 to the Corporate Debtor complaining that a harassment had been caused to the Financial Creditors and thereby asking for a redressal. (8) It is stated that a reply dated 07.10.2016 by the Corporate Debtor to Grahak Suvidha Kendra, a non-governmental organization ('NGO') was served wherein they specifically....
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....ult, then the claim is time barred since this Petition was filed as on 17.09.2019 which is delayed and therefore is barred by Limitation. (2) It is stated that the claim is hit by the principles of Res judicata, since the matter upon same subject matter is already been heard upon and adjudicated by the State Consumer Dispute Redressal Commission and National Consumer Dispute Redressal Commission. In view of pre-existing disputes before the State Commission and National Commission, the present Petition is not maintainable. The Petitioners herein had filed a Complaint before the State Consumer Redressal Commission, Telangana and the Respondent had preferred an Appeal before National Consumer Redressal Commission, New Delhi. The National Commission has passed an Order dated 06.01.2020 in First Appeal No. 1567 of 2019. The Respondent has deposited an amount of Rs. 35,000/- with the Registrar National Commission, Telangana while preferring an Appeal before National Commission and the said amount is at the disposal of the Petitioner herein. Since there exists an order in favour of the Petitioner, it is open to the Petitioner to proceed to file execution against the same. However, the P....
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....medy under this Code. The Respondent herein reserves the right to make an Application under Section 65 of the IBC 2016 against the Petitioners for having fraudulently initiating these proceedings. The principle laid down by Supreme Court as mentioned herein supra has been re-iterated by the Hon'ble National Company Law Appellate Tribunal, New Delhi in Navin Raheja Vs. Shilpa Jain and others Company Appeal (Insolvency) No. 864 of 2019 and held that 'if the delay is not due to Corporate Debtor but due to Force Majeure, it cannot be alleged that the Corporate Debtor defaulted in delivering possession.' Reference on this issue has been made to the decision of the Hon'ble Allahabad Bench of NCLT in CP (IB) 11/ALD/2018 in matter of Ajay Walia and Sunworld Residency Pvt. Ltd. 4. The Petitioners has filed Rejoinder on 09.03.2021, by inter alia stating as follows: (1) The Petitioners are decree holders and they are eligible to maintain this Petition U/s 7 of IBC, 2016. Section 5(10) makes it clear that the decree holder too is treated as Creditor for all purpose. The relevant portion of Section 3(10) is extracted hereunder for quick reference of this Adjudicating Authorit....
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....al Creditors who are homebuyers of Real Estate Project can file a Petition U/s 7 of the Code, 2016, jointly only if there are 100 of such homebuyers or if they are 10% of total homebuyers, whichever is less. However, in the instant Petition, only one Homebuyer has filed the case which neither amounts to 10% of the total class of Financial Creditors nor 100 Financial Creditors. The Petitioner, therefore, fails at the very threshold. It is also seen that in the instant case, as per the Construction agreement, the default has occurred on 01.07.2013. The CP is filed on 17.09.2019, i.e. almost 6 years after the cause of action and default. 8. Being aware of the above disqualification, the Petitioner has made out a case that it is before this Tribunal basically to seek execution of a decree passed by the National Consumer Redressal Commission, New Delhi. It has taken support from the decision of the Hon'ble NCLAT in Company Appeal (AT)(Insolvency) No. 984 of 2019 in the matter of Ugro Capital Ltd. Vs. Bangalore Dehydration and Drying Equipment Co. Pvt. Ltd. (BDDE) of 22.01.2020, to state that a decree holder was entitled to file a petition under the IBC. However, we find that this d....