2022 (6) TMI 1216

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....stated to be a Financial Creditor of M/s. MIR Realtors Private Limited being a "home buyer" who had contracted to purchase four separate Residential Apartments from the Corporate Debtor. 2. The Corporate Debtor through four separate agreements dated 26/07/2010, 28/07/2010 & 29/07/2010 agreed to complete the construction of the aforesaid four Apartments in the multi storeyed residential building complex "MIR Jade Heights Tower 1" constructed in 53 cents of land in Kakkanad Village of Kanayannur Taluk in Ernakulam District and agreed to handover its possession by 31/03/2012 and towards consideration for the same, received from the Applicant Rs. 1,87,34,756/- (Rupees one crore eighty-seven lakh thirty-four thousand seven hundred fifty-six onl....

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....med the applicant that his claim amount of Rs. 1,88,78,833/- (Rupees One crore eighty-eight lakh seventy eight thousand eight hundred and thirty three only) is admitted in full and applied interest at the rate of 8% per annum upto 31/03/2012 in terms of Regulation 16A (7) of CIRP Regulations. 5. The contention of the applicant is that the respondent Corporate Debtor is bound to handover the possession of four Apartments to the applicant within the time stipulated and that the applicant is ready and willing to take possession of the Apartments thereof as is where is condition. Going by Section 55(6)(b) of Transfer of Property Act, 1881, the applicant has a statutory charge on the four Apartments to the extent of the monies paid by him to th....

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....ved the claim of Rs. 8,62,60,401/- (Rupees Eight Crore Sixty-two lakh sixty thousand Four hundred and one only) on 31/12/2021 from the applicant and that he has admitted Rs. 3,87,61,517/- (Rupees Three crore eighty-seven lakh sixty one thousand five hundred and seventeen only) under the provisions of IBC. The prayers sought by the applicant in this IA are prima facie beyond the provisions of the IB Code. Section 14(b) of IBC, 2016 directs the Adjudicating Authority to specifically prohibit transactions resulting in transferring, encumbering, alienating or disposing off by the corporate debtor any of its assets or any legal right or beneficial interest therein. Section 43(2)(a) which deals with the Preferential Transaction prohibits transfer....

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....n the applicant will be in a beneficial position compared to others and will be in straight conflict with Section 43(2)(b) of the IBC, 2016 as the company is currently not functioning, the possession of the flat cannot be given to the applicant under exception given in Section 43(a) of the IBC. 9. We have heard the learned counsel Shri. Ashok B Shenoy appearing for the applicant and Shri. Sankar P Panicker appearing for the RP and have gone through the pleadings and documents produced by the applicant. The only question to be considered in this application is whether during the period of CIRP, the relief sought by the applicant to handover possession of four Apartments to the applicant can be allowed. In this connection it is profitable to....