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2020 (2) TMI 1428 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT - Since the instant case is not yet admitted, another case filed against the same Corporate Debtor viz C.P.(IB)No.389/BB/2019 is filed by M/s. Skylark Ithaca Buyers Welfare Association (Petitioner/Financial Creditor) against the same Corporate Debtor i.e., M/s. Skylark Mansions Private Limited, was admitted by separate Order dated 7-2-2020, by appointing Mrs. Ramanathan Bhuvaneshwari, bearing Registration No. IBBI/IPA- 002/IP-N00306/2017-18/10864, as IRP to initiate Corporate Insolvency Resolution Process (CIRP), imposing moratorium etc. Though, we are convinced with debt and default in question are proved , another Application/Petition against the same Corporate Debtor cannot be maintained. Therefore, the instant Petition can be disposed of by granting liberty to the Petitioner to approach the IRP with its claim.
Issues Involved:
1. Initiation of Corporate Insolvency Resolution Process (CIRP) under IBC, 2016 based on default by the Corporate Debtor. 2. Jurisdiction of the Adjudicating Authority under the Insolvency and Bankruptcy Code. 3. Dismissal of the Petition based on alternative remedies available to the Petitioner. 4. Consideration of RERA orders and their impact on the insolvency proceedings. 5. Admissibility of multiple petitions against the same Corporate Debtor. Analysis: Issue 1: Initiation of CIRP based on default: The Petitioner, a Financial Creditor, filed a petition seeking to initiate CIRP against the Corporate Debtor for defaulting on an amount of ?50,79,697. The default arose from the Corporate Debtor's failure to reimburse the Financial Creditor for the Pre-EMI (PEMI) payments made towards the loan availed for a residential project. The Financial Creditor faced financial burden due to the non-reimbursement and sought relief under IBC, 2016. Issue 2: Jurisdiction under IBC, 2016: The Respondent argued that the Adjudicating Authority lacked jurisdiction to adjudicate the petition as the completion date of the project was after the IBC Amendment for homebuyers came into force. The Respondent contended that the Petitioner should have sought recourse through RERA instead of approaching the Tribunal. The Respondent emphasized that the Petitioner's claim was disputed, and the CIRP initiation on a solvent Company was an abuse of the legal process. Issue 3: Dismissal based on alternative remedies: The Respondent further contended that the Petitioner had an alternative remedy available through arbitration as per the Agreement of Sale. The Respondent argued that the petition was an abuse of process and should be dismissed. The Respondent highlighted the market scenario challenges affecting their ability to meet obligations timely. Issue 4: Impact of RERA orders: The Petitioner relied on a RERA order directing the Corporate Debtor to reimburse the Financial Creditor with interest. The Tribunal considered the finality of the RERA order and the default amount exceeding ?1 lakh. The Tribunal acknowledged the debt and default but directed the Petitioner to approach the IRP appointed in another petition against the same Corporate Debtor. Issue 5: Multiple petitions against the same Corporate Debtor: The Tribunal disposed of the petition, recognizing the existence of another petition against the same Corporate Debtor. The Tribunal granted liberty to the Petitioner to file a claim with the IRP appointed in the other petition. The Tribunal emphasized that maintaining multiple petitions against the same Corporate Debtor was not permissible. This comprehensive analysis covers the key issues addressed in the judgment, outlining the legal arguments and decisions made by the Tribunal regarding the initiation of CIRP and related jurisdictional matters under the Insolvency and Bankruptcy Code.
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