TaxTMI 
TaxTMI 
2021 (6) TMI 210
X X X X Extracts X X X X
X X X X Extracts X X X X
.... company incorporated on 17.03.2008 under the provisions of Companies Act, 1956 bearing CIN No. U74120DL20008PTC175481 having registered office at G-39, Pocket A-1, Mayur Vihar, Phase- III, New Delhi - 110096 and email [email protected]. The corporate debtor is a company involved in the business of construction of deluxe residential flat, commercial complexes and independent sites in Delhi NCR. 4. The applicant states that applicant booked an apartment having No. B1- 1402, 13thFloor, Tower-B, admeasuring 985 sq. mt. in the project 'SAVVY VILLE DE', being developed at Ghaziabad, Uttar Pradesh. In pursuance of the booking by the applicant, the applicant and corporate Debtor executed a flat buyer's agreement 31.05.2014, detailing the terms and conditions therein. The total sale consideration for the said apartment was Rs. 29,00,000/- 5. The applicant states thathe had availed a loan for Rs. 23,20,000/- (Rupees Twenty-Three Lakhs Twenty Thousand only) from State Bank of India for the purpose of payment of sale consideration, for the said apartment and executed a tripartite agreement dated 10.07.2014. Further submits that he had opted for construction linked plan whereby payment ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y-Three Lakhs Seventeen Thousand One Hundred and Twenty-Six only), is due and payable by the corporate debtor. 10. The corporate debtor filed reply to the application under Section 7 of the I&B Code 2016and raised the following objections: a) That the present application is not maintainable as the applicant does not fall under the purview of Section 5(7) of the I & B code and the debt due and payable by corporate debtor is not a financial debt within the meaning of the Section 3 (11) of the code. Further, also stated that the applicant is not a decree holder in terms of Section 3(10) of the I& B code. The corporate debtor submits that since the recovery certificate of UP-RERA Lucknow is challenged by Corporate debtor before Hon'ble Allahabad High Court which is pending for deciding quantum of interest hence this application is premature. In view of the Recovery Certificate not reaching finality, this application is liable to be rejected. b) That Corporate debtor submits that there is no default. Further, the Hon'ble Allahabad High Court has given interim direction that no coercive action shall be taken pursuant to the recovery certificate dated 18.06.2019, which is still in o....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the applicant is not covered under the definition of the allottee, as per the decree passed by the Hon'ble RERA, wherein it was declared the applicant ceased to be a homebuyer/allottee of the corporate debtor as refund has been ordered in favour of the applicant nullifying the flat buyer agreement between them. The relation between the applicant and the corporate debtor is that of a decree holder. Further the corporate debtor has deposited Rs. 9,54,910/- with the recovery office in compliance of the order of Allahabad HC out of total amount of Rs. 28,53,987/- this establishes the fact of existence of debt. d) The applicant has denied that the corporate debtor has challenged the order passed by UP-RERA Authority Lucknow by way of writ petition since the appropriate forum for challenging the order of UP-RERA RERA is UP-RERA Appellate Authority, Lucknow. Further, the order dated 08.08.2019 passed by Hon'ble Allahabad High Court referred by the corporate Debtor stands vacated as the corporate debtor has failed to refund the principal amount to the applicant within the stipulated time. Thus, in view of the same as there is no stay from the Hon'ble Allahabad High Court over the recov....
X X X X Extracts X X X X
X X X X Extracts X X X X
....and 2 can no more claim to be an allottee of the Real Estate Project after issuance of Recovery Certificate. ...On their own showing they are the decree holders seeking execution of money due under the Recovery Certificate which is impermissible within the ambit of Section 7 of the 'I & B code'. Clearly, their application for triggering of Corporate Insolvency Resolution Process is not maintainable as allottees." b) That the Hon'ble NCLAT, in "G. Eswaa Rao Vs. Stressed Assets Stabilization Funds and Ors., has laid down that an application under Section 7 of I & B code cannot be filed for execution of a decree as the amount claimed is an adjudicated amount and not a debt. Hence do not fall under definition of Section 5(8) of the code. 14. As per Form I part IV the applicant submits that the default has first occurred on 01.11.2015, Secondly on 14.07.2018, when the corporate debtor failed to comply with the order dated 29.06.2019 passed by UPRERA, Lucknow and is still continuing till date. The present application is filed on 13.11.2019. Hence, the application is within in the period and is not barred by limitation. 15. The registered office of the Corporate Debtor is situate....
X X X X Extracts X X X X
X X X X Extracts X X X X
....al Vs. Ashok Tripathi & Orswill not have direct bearing on present case and the applicant qualifies as financial creditor.It also mentioned that the said order has been challenged before the Hon'ble Supreme Court for considering the issue as to whether decree holder fulfills the norms prescribed for being a part of the committee of creditors by virtue of their being financial creditors.As mentioned in its order dated 09.10.2020. 18. As a sequel to the above discussion, this application is admitted. The applicant has proposed the name of Mr.Amarpal to be appointed as IRP, who is be and hereby appointed as IRP of corporate debtor having registration number IBBI/IPA-01/IP-P01584/2018-19/12411 having address at 401, DDA Building -2, District Centre, Janakpuri, New Delhi - 110058and email-id [email protected]. The IRP has filed consent in form-2 of the Insolvency & Bankruptcy Board of India (Application to Adjudicating Authority) Rule 2016 and make disclosures as required under IBBI (Insolvency Resolution Process for Corporate Person) Regulation, 2016. 19. As a consequence of the application being admitted in terms of Section 7(5) of IBC, 2016 moratorium as envisaged under the provisio....