TaxTMI 
TaxTMI 
TaxTMI 
2021 (10) TMI 1307
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....07213. Its registered office is at Row House D, Castle Rock- Land Scape town, Odxel, Goa, Dona Paul Police Station, North Goa 403004. Brief Facts of the case: 3. The applicant has entered into an agreement with the Respondent for purchase of flat after the payment of a sum of Rs. 3,50,00,000/- (Three Crore Fifty Lakhs only) in on "Shreepati Estates". However, as all the permissions and/or approvals were not sort properly, the Corporate Debtor was unable to commence the construction for the same. Subsequently, the said amount was converted into a loan account by the Corporate Debtor and the same was to be repaid along with agreed interest. 4. The breakup of payments made by the Applicant (Abhigyan Developers Pvt. Ltd.) to the Respondent (Shreepati Build infra Investment Ltd.) through RTGS is as under: Sr. No. Date Particulars i. 21.08.2009 Payment of Rs. 1,00,00,000/- (One crore) ii. 04.11.2009 Payment of Rs. 50,00,000/- (Fifty Lakhs) iii. 04.12.2009 Payment of Rs. 50,00,000/- (Fifty Lakhs) iv. 04.02.2010 Payment of Rs. 1,50,00,000/- (One crore Fifty Lakhs) Total Sum 3,50,00,000/- (Three Crore Fifty Lakhs only) 5. After recording of the receipt of a sum....
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....ed by Shreepati to Abhigyan confirming the balance lying as credit marked as Annexure "E". iii. 31.03.2015 Letter issued by Respondent notifying transfer of advance amount to loan account till project starts marked as Annexure "F". iv. 08.07.2016 Letter issued by Respondent to Applicant assuring payment along with mutually agreed interest/compensation before 30 August 2016 marked as Annexure "H". v. 30.09.2017 Letter issued by Respondent admitting the claim amount is still due and further assuring that the sum of Rs. 3,50,00,000/- along with cumulative interest would be repaid along with the interest marked as Annexure "I". vi. 31.03.2018 Letter issued by Respondent to Applicant confirming that the said sum would be repaid back with 15% cumulative interest compounded quarterly marked as Annexure "J". 11. The Applicant has relied on the judgement of the Hon'ble NCLAT in G. Sreevidhya v. M/s Karismaa Foundations Pvt. Ltd. [Company Appeal (AT) (Insolvency) No. 494 of 2018] (@paragraph 8 and 9) to submit that an advance for a flat, if converted to a loan by the Corporate Debtor, is a financial debt and if the same is unpaid, the application is liable to be admitted. 12. Furth....
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....ays of the commencement of the said ordinance, failing which the application would be deemed to be withdrawn before its admission. In Paragraphs 7 to 9 of its Further Affidavit dated 6th February 2021, the corporate debtor has given the details of the number of units to be constructed. A total of 2699 units are to be constructed, of which 2139 units have been allotted. Even if one was to consider only the free sale units, out of 631 free sale units only 71 units have in all been allotted. Therefore, at least 8 allottees ought to have filed the application. The present application has been filed by a single allottee. The Applicant has not taken any steps to comply with the amended provision of S. 7 of the Code, and the application is therefore deemed to be withdrawn before admission. 15. The Corporate Debtor submits that the amendments to Section 7 of the Code were challenged in the Hon'ble Supreme Court of India, and by a judgment dated 19th January 2021, in the matter of Manish Kumar v. Union of India [(2021) 5 SCC 1], the Hon'ble Supreme Court of India upheld the amendments and gave a period of two weeks from the date of the judgment for Applicants to comply with the amended pro....
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....t of the Investor from the Permanent Allotment of the Flat on the day the project if approved and commenced at the agreed rate". The Corporate Debtor also enclosed a letter of loan confirmation was for the Applicant's confirmation. 19. The Corporate Debtor was of a view that in order to exit from the project, the Applicant would necessarily have to cancel the agreement for purchase or transfer the same to a 3rd Party who would then be liable to pay the balance consideration. It is only if the Applicant had exercised such option in writing and had cancelled the agreement dated 15th March 2011 that could he seek repayment. 20. Relying on the aforesaid submissions, the Corporate Debtor submits that the Agreement for Sale continues to hold the field and the Applicant is bound and liable to pay the balance consideration as per the terms of the Agreement. The project is underway, and as stated at Paragraph 26 / Pg. 12 of the Affidavit in Reply dated 4th November 2019, the flats will be constructed and delivered to the Applicant on the terms agreed by the parties. 21. Relying on paragraph 26 at page 13 of the Affidavit in Reply the Applicant, the Applicant has not treated the said amou....
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....e case of G. Sreevidya v. M/s Karismaa Foundations Ltd. [Order dated 19th March 2019 in Company Appeal (AT) (Insolvency) No. 494 of 2018]. The Corporate Debtor submits that the facts of that case are totally different from the present facts. In that case, the real estate developer could not complete the project and agreed to repay the earnest money deposit with interest. Some amount of interest was actually repaid. A cheque dated 30th June 2015 for the balance loan amount of Rs. 1.35 crores was issued but was dishonored. It was in view of the dishonor of the cheque on the grounds of "insufficient funds" that it was held that the applicant therein was a financial creditor. See paragraph 3 of the judgement. 26. The next judgment relied upon by the Applicant is in the case of Orator Marketing Pvt. Ltd. v. SamtexDesinzPvt. Ltd. [2021 SCC OnLine SC 513]. Reliance was placed upon paragraph 31 thereof in support of the proposition that a 'Financial Debt' would have to be construed to include interest free loans advanced to finance the business operations of a corporate body. It is submitted that the said judgment has no application to the present case as in the present case, the said sum....
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....'allottee' in a real estate project. As stated above, the CD has admitted converting the advance amount into a loan payable and the CD has admitted that the flats will not be handed over and the allotment of flats in favour of the FC stands cancelled. 32. We have heard the arguments of Financial creditor and Corporate Debtor and perused the records. 33. From the face of all the arguments advanced by the Applicant, it is clear that there exist a Debt and Default. The documents relied upon namely letter dated 31.03.2015 annexed as "Annexure F" is a substantial proof that Debt is there when, the Applicants amount was transferred to loan account and subsequently Default is clearly attributable from letter Dated 08.07.2016 Annexed as "Annexure H". 34. We also consider the facts of the case in the lights of the Hon'ble Supreme Court in Swiss Ribbons Pvt. Ltd. & Ors. Vs. Union of India & Ors. [Writ Petition (Civil) No. 99 of 2018] upholding the Constitutional validity of IBC, the position is very clear that unlike Section 9, there is no scope of raising a 'dispute' as far as Section 7 petition is concerned. As soon as a 'debt' and 'default' is proved, the adjudicating authority is boun....
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.... supply of essential goods or services to the corporate debtor, if continuing, shall not be terminated or suspended or interrupted during the moratorium period; (ii) That the provisions of sub-section (1) of section 14 of the IBC shall not apply to such transactions as may be notified by the Central Government in consultation with any sectoral regulator; (d) The moratorium shall have effect from the date of this order till the completion of the CIRP or until this Adjudicating Authority approves the resolution plan under sub-section (1) of section 31 of the IBC or passes an order for liquidation of Corporate Debtor under section 33 of the IBC, as the case may be. (e) Public announcement of the CIRP shall be made immediately as specified under section 13 of the IBC read with regulation 6 of the Insolvency & Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. (f) Mr. Rakesh Kumar Tulsyan, Registration No. IIBI/IPA- 001/IP-P01144/2018-19/11970, having address at B-4, Vinay Tower, Kranti Nagar, Lokhandwala, Kandivali (East), Mumbai - 400101, Mobile: +91 9969410171, is hereby appointed as Interim Resolution Professional (IRP) of the ....