2019 (12) TMI 1381 - Tri - Insolvency and Bankruptcy

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - Time Limitation - HELD THAT - The Real Estate (Regulation And Development Act), 2016 is an act brought in force to protect the interest and to regulate the working and functioning of the real estate sector, so as to ensure that the buyers are not cheated by the developers and to ensure that the projects falling under RERA are completed within time and that amount(s) may be refunded to the buyers, when demanded by them in terms of the agreement entered into between the parties, whereas the purpose of the Insolvency Bankruptcy Code, 2016 is to ensure that the companies that are in financial distress either have a change in management or are liquidated depending upon the interest gathered by it in the market. Further, the relief(s) demanded by the applicants in the instant matter before the Ld. RERA, Noida are sperate from the relief claimed by the applicants before this Hon'ble Tribunal. The application is complete as per the requirements of section 7 of the code. Further the date of default occurred from 19.12.2018 and hence the debt is not time barred and the application is filed within the period of limitation - The registered office of corporate debtor is situated in Delhi and therefore this Tribunal has jurisdiction to entertain and try this application - The Applicant is entitled to claim its dues, which remain uncontroverted by the Corporate Debtor, establishing the default in payment of the financial debt beyond doubt. In the light of facts and records the present application is admitted. Application admitted - moratorium declared.

Issues:
1. Application under section 7 of Insolvency and Bankruptcy Code, 2016 for Corporate Insolvency process initiation against a private limited company.
2. Delay in possession of units by the corporate debtor to the home buyers.
3. Failure of the corporate debtor to pay assured rent to financial creditors.
4. Allegations of false assurances and non-repayment of deposited amounts by the corporate debtor.
5. Jurisdiction of the Tribunal to entertain the application.
6. Appointment of Insolvency Resolution Professional and deposit of funds for the process.

Issue 1: Application under section 7 of IBC for Corporate Insolvency:
The application was filed under section 7 of the Insolvency and Bankruptcy Code, 2016, seeking to initiate the Corporate Insolvency Resolution Process against the corporate debtor, a private limited company. The applicants, who are home buyers in the project, sought relief due to delays and non-compliance by the corporate debtor.

Issue 2: Delay in possession of units:
The applicants invested in a project by the corporate debtor, expecting possession within a stipulated time frame. However, the corporate debtor failed to provide possession within the agreed period, leading to the applicants seeking a refund of their amounts along with interest.

Issue 3: Failure to pay assured rent:
The corporate debtor also allegedly failed to pay assured rent to the financial creditors, as per the terms of the provisional allotment letters issued to the home buyers. This non-compliance further added to the grievances of the applicants.

Issue 4: Allegations of false assurances and non-repayment:
Despite repeated follow-ups, the corporate debtor allegedly provided false assurances regarding project completion and failed to repay the deposited amounts to the applicants. Bank account statements were submitted as evidence of non-payment by the corporate debtor.

Issue 5: Jurisdiction of the Tribunal:
The Tribunal asserted its jurisdiction to entertain the application, considering the registered office of the corporate debtor was in Delhi. It was concluded that the application met the requirements of section 7 of the Code and was not time-barred.

Issue 6: Appointment of Insolvency Resolution Professional:
The Tribunal admitted the application, finding the corporate debtor in default of payment to the financial creditors. An Insolvency Resolution Professional was named, and the financial creditor was directed to deposit funds with the IRP to cover expenses for the resolution process.

In conclusion, the Tribunal admitted the application for Corporate Insolvency Resolution Process, highlighting the default by the corporate debtor in payment to the financial creditors. The jurisdiction of the Tribunal was established, and an Insolvency Resolution Professional was appointed to oversee the resolution process. The moratorium period was initiated, and necessary communications were directed to relevant parties and authorities for compliance and further actions.

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