9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2019 (12) TMI 1138 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate debtor failed to make repayment - debt due and payable - HELD THAT - It is beyond doubt that the default has occurred with respect to the payment of the financial debt due to the Applicant. As per reply of the corporate debtor it is admitted that the occupation certificate was obtained in the year 2017 and when occupation certificate is received in 2017 how can the corporate debtor offer possession in 2016 to the applicant as claimed by it. The corporate debtor has not produced any completion certificate. Even if the defense for delay is considered in present case, the delay is more than three years and hence non-payment of assured returns and penalty by the corporate debtor as per MoU will amount to default. The intent of the code to protect the allottee would be completely defeated, if such a defense of the corporate debtor is to be accepted. It is evident from the record that the application has been filed on the proforma prescribed under Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 read with Section 7 of the Code. This Tribunal is satisfied that a default has occurred and the application under Section 7 is complete. The name of the IRP has been proposed and his/her consent in Form 2 has been duly filed. There are no disciplinary proceedings pending against the proposed Interim Resolution Professional. Application admitted - moratorium declared.
Issues Involved:
1. Determination of the Applicant's status as a Financial Creditor. 2. Default in payment of assured returns by the Corporate Debtor. 3. Non-completion of the real estate project and failure to offer possession. 4. Admissibility of the application under Section 7 of the Insolvency and Bankruptcy Code, 2016. 5. Appointment of an Interim Resolution Professional (IRP) and declaration of moratorium. Issue-wise Detailed Analysis: 1. Determination of the Applicant's Status as a Financial Creditor: The Applicant, an allottee of a real estate project, is considered a financial creditor under Section 5(8)(f) of the Insolvency and Bankruptcy Code, 2016, as clarified by the Second Amendment Act, 2018. The Supreme Court in Pioneer Urban Land & Infrastructure Ltd. v. Union of India upheld this amendment, confirming the Applicant's status as a Financial Creditor. 2. Default in Payment of Assured Returns by the Corporate Debtor: The Corporate Debtor had committed to paying assured investment returns as per Clause 4 of the MoU. The Applicant claimed the Corporate Debtor defaulted on these payments from August 2014 onwards, resulting in an outstanding amount of ?44,99,880. Despite reminders and legal notices, the Corporate Debtor failed to make these payments, leading to a continuing default. 3. Non-completion of the Real Estate Project and Failure to Offer Possession: The Corporate Debtor promised to complete the project and obtain an Occupancy Certificate within 36 months, with a grace period of 12 months from May 2010. The Applicant alleged that the project was not completed within this timeframe, and the Corporate Debtor failed to offer possession. The Corporate Debtor claimed to have offered possession in 2016, but the Occupancy Certificate was only obtained in 2017, contradicting their claim. The delay in project completion and non-payment of assured returns constituted a default. 4. Admissibility of the Application under Section 7 of the Insolvency and Bankruptcy Code, 2016: The Tribunal, after reviewing the submissions and evidence, concluded that a default had occurred concerning the financial debt owed to the Applicant. The application was found to be complete as per the prescribed proforma under Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. The Tribunal was satisfied that the conditions for admitting the application under Section 7 of the Code were met. 5. Appointment of an Interim Resolution Professional (IRP) and Declaration of Moratorium: The Tribunal appointed Mr. Amit Gupta as the Interim Resolution Professional (IRP) and declared a moratorium under Section 14 of the Code. The IRP was directed to make a public announcement regarding the admission of the application and to perform his duties as per Sections 15, 17, 18, 19, 20, and 21 of the Code. The Financial Creditor was instructed to deposit ?2 lakhs with the IRP to cover expenses, subject to adjustment by the Committee of Creditors. Conclusion: The application was admitted under Section 7 of the Insolvency and Bankruptcy Code, 2016. The Tribunal directed the IRP to commence the Corporate Insolvency Resolution Process, declared a moratorium, and instructed the Financial Creditor to provide necessary funds for the IRP's expenses. The order was to be communicated to all relevant parties and authorities for compliance and record-keeping.
|
