9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2020 (1) TMI 237 - Tri - IBCMaintainability of application - Corporate debtor failed to make repayment of debt - allottees/home buyers - financial creditors or not - HELD THAT - Reliance can be placed in the case of judgement of Hon'ble Supreme Court in the case of Pioneer Urban Land Infrastructure Ltd. v. Union of India 2019 (8) TMI 532 - SUPREME COURT where it was held that allottees/home buyers are to be regarded as financial creditors in terms of Section 5(8)(f) of the Code. Hon'ble Supreme Court has further made it clear that the allottees/home buyers can avail the remedies available under the provisions of the Code. In the present case the petitioner had booked a flat on payment booking amount. The various dates of disbursement of the said disbursed amount including the details of flat have been furnished in the application. The Allotment Agreement dated 22.05.2016 executed with the petitioner has been placed on record. Petitioner has also placed on record copies of cheques and receipts given by the respondent; in support of the disbursement of the amount to the respondent corporate debtor - Since the amount has been raised from the petitioner/allottee under a real estate project, petitioner being allottee/home buyer is regarded as a financial creditor in terms of Section 5(8)(f) of the Code. Petitioner gave advance to the real estate developer and thereby financed the real estate project at hand. Money that is disbursed is no longer with the allottee, but is with the real estate developer who is legally obliged to give money's equivalent back to the allottee. Not only the debt has a commercial effect of borrowings and come within the scope of 'financial debt' but also the petitioner clearly comes within the definition of 'financial creditor'. It is reiterated that the Form-1 filed in the present case under Section 7 of the Code read with Rule 4 of the Rules, shows that the Form is complete in all respect and there is no infirmity in the same. It is further seen that no disciplinary proceeding is pending against the proposed IRP. Whether respondent corporate debtor has committed default in payment of the financial debt? - HELD THAT - In the facts and as per available records, it appears that the respondent corporate debtor has committed default in repayment of the financial debt. The application under Section 7 is maintainable once the default is more than the threshold limit of one lakh. Once there is a debt and default and the application is complete the Adjudicating Authority is bound to admit the application preferred under Section 7 of the Code - the material on record reveals that there is no disciplinary proceeding pending against the proposed IRP. It is thus seen that all the requirements of Section 7(5)(a) of the Code stand fulfilled - in terms of Section 7(5)(a) of the Code, the present application is admitted. Application admitted - moratorium declared.
Issues Involved:
1. Jurisdiction of the Tribunal. 2. Financial Creditor's claim and evidence of debt. 3. Default by the Corporate Debtor. 4. Applicability of Section 7 of the Insolvency and Bankruptcy Code, 2016. 5. Appointment of Interim Resolution Professional (IRP). 6. Declaration of Moratorium. 7. Directions to the Interim Resolution Professional and related parties. Issue-wise Detailed Analysis: 1. Jurisdiction of the Tribunal: The Tribunal confirmed its territorial jurisdiction over the respondent corporate debtor, M/s. Krishna Assets Developers Private Limited, whose registered office is located in Delhi. This is in accordance with Section 60(1) of the Insolvency and Bankruptcy Code, 2016 (the Code). 2. Financial Creditor's Claim and Evidence of Debt: The applicant, Mrs. Ruby Kumari, claimed to have invested in the respondent's real estate project, "3 Dimension," by disbursing a total sum of ?4,50,000/-. Evidence included cheques and receipts, and an Apartment Buyer's Agreement dated 22.05.2016. The applicant alleged that the corporate debtor failed to deliver the possession of the booked flat within the stipulated 36 months and ceased construction work, substantiated by photographs and lack of communication from the debtor. 3. Default by the Corporate Debtor: The Tribunal noted the respondent's failure to repay the financial debt and the absence of any rebuttal from the corporate debtor, who did not file a reply or appear in the proceedings. The applicant's claim of default amounting to ?9,02,250/- as of 31.01.2019 remained uncontested. 4. Applicability of Section 7 of the Insolvency and Bankruptcy Code, 2016: The Tribunal emphasized that under Section 7, only a "Financial Creditor" can initiate the Corporate Insolvency Resolution Process (CIRP). The Code defines "Financial Creditor" and "Financial Debt" under Sections 5(7) and 5(8), respectively. The amendment to Section 5(8) clarified that amounts raised from allottees under real estate projects are considered financial debts. The Supreme Court's ruling in Pioneer Urban Land & Infrastructure Ltd. v. Union of India affirmed that home buyers are financial creditors, thus enabling them to initiate CIRP. 5. Appointment of Interim Resolution Professional (IRP): The applicant proposed Mr. Akarsh Kashyap as the IRP, who met all the requirements under Section 7(3)(b) of the Code. The Tribunal found no disciplinary proceedings pending against him and confirmed his appointment. 6. Declaration of Moratorium: The Tribunal declared a moratorium as per Section 14 of the Code, prohibiting: - The institution or continuation of suits or proceedings against the corporate debtor. - Transferring, encumbering, or disposing of any assets of the corporate debtor. - Actions to foreclose or enforce any security interest. - Recovery of any property by an owner or lessor. 7. Directions to the Interim Resolution Professional and Related Parties: The IRP was directed to make a public announcement of the CIRP admission and to perform duties under Sections 15, 17, 18, 19, 20, and 21 of the Code. The Tribunal mandated cooperation from all personnel associated with the corporate debtor and allowed the IRP to seek further orders if any illegal transactions by ex-directors were discovered. The Tribunal also instructed the applicant to deposit ?2 lakhs with the IRP for expenses. Conclusion: The Tribunal admitted the application under Section 7 of the Code, initiating the CIRP against the corporate debtor, M/s. Krishna Assets Developers Private Limited, and appointed Mr. Akarsh Kashyap as the IRP. The Tribunal declared a moratorium and directed necessary actions to be taken by the IRP and related parties.
|
