2021 (12) TMI 963

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....eferred to as 'Respondent/Corporate Debtor'). The petition is signed by Mr. Nitin Kalra and Suresh Kumar and the affidavits verifying the contents of the application is from pages 25 to 28 of the petition. 2. The master data of the Corporate Debtor is stated to be filed as Annexure-I/2 of the application. The Corporate Debtor is stated to be incorporated on 15.03.2012 and is a real estate company having its registered address at House No.639, Sector 11-B, Chandigarh. Therefore, the jurisdiction lies with this Bench of the Tribunal. 3. The facts of the case as briefly stated in the petition are that the Petitioner No.1 has been allotted two plots, the first one bearing No.HPE-R3- A106 amounting to Rs. 67,50,000/- (Sixty Seven Lakhs Fifty Thousand Only) and second one bearing No.HPE-RE-A105 for amounting to Rs. 62,50,000/- (Sixty Two Lakhs Fifty Thousand Only) and the Petitioner No.2 has been allotted a flat measuring 2100 square feet on the third floor in the plot bearing No.HPEPE- A103 for a consideration of Rs. 52,00,000/- (Fifty Two Lakhs) in the project of Corporate Debtor situated at DLF Hyde Park, Mullanpur, New Chandigarh. The petitioners have executed two separate agreemen....

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....d Rs. 26,00,000/- (Twenty Six Lakhs Only). The total amount claimed to be in default is Rs. 3,57,97,229.60/- as on 31.01.2021 (including interest @24% per annum) being residential plot buyers in the project of Corporate Debtor. A copy of the interest calculation sheet has also been attached as Annexure-I/3 of the petition. 7. When the matter was listed on 07.07.2021, the Petitioners- Financial Creditors have been asked to submit documents showing the eligibility criteria to file the petition under the category of home-buyers. The petitioners have filed an compliance affidavit vide Diary No.00462/2 dated 16.11.2021 wherein it has been stated that the petitioners are the allottees of seven(7) flats spread over three(3) plots in the project of the Corporate Debtor. There are twelve(12) plots of land which includes 36 total number of flats. In view of the judgement of the Hon'ble Supreme Court of India in Manish Kumar Vs. Union of India (UOI) and Ors. Writ Petition (C) No.26 of 2020 dated 19.01.2021, the petitioners being more than 10% of Home Buyers are eligible to file the present petition under Section 7 of the IBC, 2016. The table showing the eligibility criteria of the petitioner....

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....rporate debtor assured that same will be handed over on or before 31.12.2018. The petitioner no.2 has also issued various letters dated 09.12.2016, 16.05.2018 and 06.01.2020 for the construction of flat and assurance has been given to the petitioner no.2 that the possession of the completed flat will be given but Corporate Debtor failed to fulfil its commitment. Therefore, the present petition is filed within limitation. 14. The another issue for consideration is whether the present petition is maintainable. As per Section 7 of IBC which is reproduced below :- "Section 7 Initiation of corporate insolvency resolution process by financial creditor. (1) A financial creditor either by itself or jointly with 1[other financial creditors, or any other person on behalf of the financial creditor, as may be notified by the Central Government,] may file an application for initiating corporate insolvency resolution process against a corporate debtor before the Adjudicating Authority when a default has occurred. 2[Provided that for the financial creditors, referred to in clauses (a) and (b) of sub-section (6A) of section 21, an application for initiating corporate insolvency resolution....

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....ium in terms of Section 14, the following prohibitions are imposed, which must be followed by all and sundry: "(a) the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; (b) Transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; (c) Any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; (d) The recovery of any property by an owner or lessor, where such property is occupied by or in the possession of the corporate debtor. (e) It is further directed that the supply of essential goods or services to the corporate debtor as may be specified, shall not be terminated or suspended or interrupted during moratorium period. (f) The provisions of Section 14(3) shall however, not apply to such transactions as may be notif....