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2021 (12) TMI 963 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - time limitation - HELD THAT - In the present case, the occurrence of default is evidenced by the copy of Agreement to Sell dated 17.01.2018 executed between the corporate debtor and the petitioner no.1 along with copy of receipts and Agreement to Sell dated 10.12.2014, executed with the petitioner No.2 and the same are attached as Annexure-I/4 and Annexure-I/7 respectively of the petition - The respondent-corporate debtor has also filed a reply wherein it has been stated that the default mentioned in the petition is due towards the petitioner for not providing of the possession of the plots/flat. Whether present application is filed within limitation? - HELD THAT - It can be seen from the records that corporate debtor had to deliver possession of the plots to petitioner no.1 on or before 16.04.2018. The petitioner no.1 has also got his presence marked before Sub- Registrar for the execution of sale deed - The petitioner no.2 has also issued various letters dated 09.12.2016, 16.05.2018 and 06.01.2020 for the construction of flat and assurance has been given to the petitioner no.2 that the possession of the completed flat will be given but Corporate Debtor failed to fulfil its commitment. Therefore, the present petition is filed within limitation. Whether the present petition is maintainable? - HELD THAT - The petitioner has filed a compliance affidavit vide a diary no. 00462/2 dated 16.11.2021 wherein it has been stated that total number of plots in the project of corporate debtor is 12 plots which is further divided into 36 flats. The petitioner no.1 is having two whole plots bearing no. HPE-PEA106 HPEPEA105 and the petitioner no.2 is having a flat in the plot no. HPE-PEA103. Therefore, the requirement of having 10% of the allotment in the project is satisfied. The application filed in the prescribed Form No.1 is found to be complete. The present petition being complete and having established the default in payment of the Financial Debt for the default amount being above threshold limit, the petition is admitted in terms of Section 7(5) of the IBC and accordingly, moratorium is declared in terms of Section 14 of the Code - Petition admitted - moratorium declared.
Issues Involved:
1. Jurisdiction and Admissibility of Petition 2. Facts of the Case and Evidence of Default 3. Limitation Period 4. Eligibility and Maintainability of the Petition 5. Declaration of Moratorium and Appointment of Interim Resolution Professional (IRP) Issue-wise Detailed Analysis: 1. Jurisdiction and Admissibility of Petition: The petition was filed under Section 7 of the Insolvency and Bankruptcy Code, 2016 (IBC), read with Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. The Corporate Debtor, incorporated on 15.03.2012, is a real estate company with its registered address in Chandigarh, thus falling under the jurisdiction of the Chandigarh Bench of the Tribunal. 2. Facts of the Case and Evidence of Default: The petitioners, as financial creditors, had invested in plots and a flat in the Corporate Debtor's real estate project. Petitioner No.1 was allotted two plots for ?67,50,000 and ?62,50,000, respectively, and Petitioner No.2 was allotted a flat for ?52,00,000. Despite agreements dated 17.01.2018 and 10.12.2014, the Corporate Debtor failed to deliver possession by the agreed dates. Various communications requesting possession or refunds were made by the petitioners, which were not honored by the Corporate Debtor. The total amount claimed in default, including interest, was ?3,57,97,229.60 as on 31.01.2021. 3. Limitation Period: The petition was filed within the limitation period. The Corporate Debtor was supposed to deliver possession of the plots to Petitioner No.1 by 16.04.2018 and the flat to Petitioner No.2 by 31.12.2019. The petitioners issued multiple letters requesting possession, and assurances were given by the Corporate Debtor, but the commitments were not fulfilled. Therefore, the petition was deemed timely. 4. Eligibility and Maintainability of the Petition: The petitioners complied with the eligibility criteria under Section 7 of the IBC. They represented more than 10% of the homebuyers in the project, as required by the Supreme Court's judgment in Manish Kumar Vs. Union of India. The petitioners' compliance affidavit confirmed that they held a significant portion of the allotments, satisfying the threshold requirement. The application was found to be complete in the prescribed Form No.1. 5. Declaration of Moratorium and Appointment of Interim Resolution Professional (IRP): The Tribunal admitted the petition under Section 7(5) of the IBC, declaring a moratorium in terms of Section 14 of the Code. The moratorium imposed prohibitions on suits, asset transfers, enforcement actions, and property recovery against the Corporate Debtor. Mr. Navneet Kakkar was appointed as the Interim Resolution Professional (IRP), tasked with taking steps as mandated under the IBC, including the constitution of a Committee of Creditors and filing regular progress reports. The Financial Creditor was directed to deposit ?2,00,000 with the IRP for immediate CIRP expenses. Conclusion: The Tribunal admitted the petition, initiated the Corporate Insolvency Resolution Process (CIRP) against the Corporate Debtor, and declared a moratorium. The IRP was appointed to manage the process, and the petitioners were found eligible and within the limitation period to file the petition. The order was communicated to both parties, and the IRP was directed to proceed with the necessary steps as per the IBC.
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