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2019 (1) TMI 1504 - Tri - Insolvency and BankruptcyInitiation of Corporate Insolvency Resolution Process - financial creditor - home buyers - failure to pay assured return /monthly rent - Section 7 of the Insolvency and Bankruptcy Code, 2016 read with rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 - territorial jurisdiction in respect of respondent corporate debtor as per the provisions of sub-section (1) of Section 60 of the Code - Held that - It is evident from the record that the application has been filed on the proforma prescribed under Rule 4 (2) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 read with Section 7 of the Code. We are satisfied that a default amounting to lacs of rupees has occurred. As per requirement of Section 4 of the Code if default amount is one lac or more then the CIR Process would be issued. The application under sub-section 2 of Section 7 is complete; and no disciplinary proceedings are pending against the proposed Interim Resolution Professional. The petitioners being financial creditors can invoke Corporate Insolvency Resolution Process under Section 7 of the code against the respondent corporate debtor in case of default in repayment of financial debt. Admissibility of the application - Held that - The applicants being home buyers would fall within the definition of Financial Creditors . The material placed on record further confirms that applicant financial creditor had disbursed the money to the respondent corporate debtor as consideration for purchase of a residential unit. Though a considerable long period has lapsed even the principal amount disbursed has not been repaid by the respondent corporate debtor. It is accordingly held that respondent corporate debtor has committed default in repayment of the outstanding financial debt which exceeds the statutory limit of rupees one Lakh. Thus, the application warrant admission as it is complete in all respects. The Interim Insolvency Resolution Professional is directed to make public announcement immediately with regard to admission of this application under Section 7 of the Code. The expression immediately means within three days as clarified by Explanation to Regulation 6 (1) of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 - the moratorium in terms of Section 14 of the Code is declared.
Issues Involved:
1. Jurisdiction of the Tribunal. 2. Status of the petitioner as a 'financial creditor.' 3. Validity of the application under Section 7 of the Insolvency and Bankruptcy Code, 2016. 4. Objections raised by the Corporate Debtor regarding the petition's maintainability. 5. Compliance with the procedural requirements under the Insolvency and Bankruptcy Code, 2016. 6. Appointment of an Interim Resolution Professional. 7. Declaration of moratorium. Issue-wise Detailed Analysis: 1. Jurisdiction of the Tribunal: The Tribunal established its territorial jurisdiction over the respondent corporate debtor, M/s. Crown Realtech Private Limited, as the registered office of the corporate debtor is located in Delhi, complying with Section 60(1) of the Insolvency and Bankruptcy Code, 2016. 2. Status of the Petitioner as a 'Financial Creditor': The petitioners, Mr. Puneet Kumar Jindal (HUF) and Mr. Vishwam Jindal, claimed to be 'financial creditors' under Section 7 of the Code. The Tribunal recognized them as financial creditors based on the amended definition in Section 5(8)(f) of the Code, which includes amounts raised from allottees under real estate projects as having the commercial effect of a borrowing. The Tribunal cited the case of Rajendra Kumar Saxena v. Earth Gracia Buildcon (P.) Ltd., which supports the inclusion of real estate allottees as financial creditors. 3. Validity of the Application under Section 7 of the Insolvency and Bankruptcy Code, 2016: The Tribunal found the application to be complete as per Section 7(2) of the Code and Rule 4(1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. The petitioners provided detailed information on the default, and the name of the proposed resolution professional was specified, satisfying the requirements of Section 7(3)(b) of the Code. 4. Objections Raised by the Corporate Debtor Regarding the Petition's Maintainability: The Corporate Debtor raised several objections, including the non-maintainability of the application due to the absence of Mr. Vishwam Jindal's signature on the agreement, incomplete information in the application, and discrepancies in the default amount. The Tribunal rejected these objections, stating that the Corporate Debtor had previously acknowledged Mr. Vishwam Jindal by sending cheques and deducting TDS in his name, invoking principles of estoppel. Additionally, the Tribunal found that the application met the statutory requirements, and any minor discrepancies in the default amount did not affect the overall validity of the petition. 5. Compliance with Procedural Requirements under the Insolvency and Bankruptcy Code, 2016: The Tribunal examined the compliance with procedural requirements under Sections 7(2) and 7(5) of the Code. It confirmed that the application was filed in the prescribed form and manner, and no disciplinary proceedings were pending against the proposed Interim Resolution Professional. The Tribunal was satisfied that a default exceeding the statutory limit of one lakh rupees had occurred, warranting the initiation of the Corporate Insolvency Resolution Process (CIRP). 6. Appointment of an Interim Resolution Professional: The Tribunal appointed Mr. Amit Agarwal as the Interim Resolution Professional, as he met the necessary qualifications and no disciplinary proceedings were pending against him. The Tribunal directed him to make a public announcement regarding the admission of the application within three days, as per Regulation 6(1) of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. 7. Declaration of Moratorium: The Tribunal declared a moratorium under Section 14 of the Code, imposing prohibitions on the institution or continuation of suits, transferring or disposing of assets, and recovering any property by an owner or lessor. The moratorium aimed to facilitate the resolution of the insolvency issue and protect the interests of all stakeholders. Conclusion: The Tribunal admitted the application under Section 7 of the Insolvency and Bankruptcy Code, 2016, as it was complete in all respects. The petitioners were recognized as financial creditors, and the Corporate Debtor's objections were rejected. The Tribunal appointed an Interim Resolution Professional and declared a moratorium to initiate the Corporate Insolvency Resolution Process.
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