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TMI Blog2018 (5) TMI 1331X X X X Extracts X X X X X X X X Extracts X X X X ..... solvency Resolution Process has been prayed for, is a company incorporated on 07.02.2002 under the provisions of Companies Act, 1956 having its registered office at Metro walk Sector-10, Rohini, Near Rithala Metro Station Delhi-110085. Since the registered office of the respondent corporate debtor is in Delhi, this Tribunal having territorial jurisdiction over the place is the Adjudicating Authority in relation to the prayer for initiation of Corporate Insolvency Resolution Process in respect of respondent corporate debtor under sub-section (1) of Section 60 of the Code. 3. It is the case of applicants that they booked a commercial space vide number 155, ground floor measuring approx. 1041 Sq. ft. in the project under the name 'Gardens Galleria Shopping Mall' situated at Plot No. A-2, Sector 38A, Noida, District Gautam Budh Nagar, Uttar Pradesh to be developed by corporate debtor. It is stated that applicants paid a sum of Rs. 1,12,42,800/-, equivalent to the 90% of the total lease premium to the corporate debtor. Details of payments made to the corporate debtor have been furnished in the application. Balance 10% of the total lease premium for the unit has been adjusted by the cor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tanding dues. 9. The respondent company has filed its reply mainly with the contention that in the present case the applicants have breached terms and conditions of the MOU dated 24.02.2012 and have concealed the true and material facts of the case. Accordingly, it is argued that the applicant is not a financial creditor and no financial debt is owed to the applicant by the respondent company and therefore the present application is not maintainable. 10. In addition, respondent has contended that the applicants have failed to perform their obligations inasmuch as the respondent vide its letter dated 14.12.2015 had intimated the applicants that the unit booked is ready for possession and a sum of Rs. 3,66,280/- is payable by applicants. It is stated that as per Clause 10 of the said MOU the respondent had to licence the said commercial space to any third party on behalf of the applicants and the applicants had authorized respondent to grant such licence. Further it is provided that if applicants failed to sign or refuse to sign the said assignment/licence the liability of respondent under the MOU shall stand absolved and the respondent stand relieved of its obligations to pay assu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he present application is not maintainable. 16. Applicants in its rejoinder have contended that the sub-lease of premises was an essential term of the MOU which has not been done by the respondent. It is stated in the rejoinder that the possession of the said premises means the actual possession not symbolic possession and the letter dated 14.12.2015 is mere a symbolic possession and that actual physical possession has not been given to the applicants till date. 17. It is further submitted that the alleged force majeure events is an afterthought plea and not tenable in the eyes of law because the respondent is a developer and must have knowledge of laws and procedures and should have taken all requisite clearance. Any failure/negligence on the part of respondent to obtain clearance will not help the respondent. It is contended that the grounds of force majeure are available only to the party who is not a defaulting party. 18. It is further contended in the rejoinder that the grounds of unpaid CAM charges is taken for the first time in the reply of respondent and there is not a single communication on record demanding CAM charges and therefore, the plea of payment of CAM charges ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rescribed; (e) receivables sold or discounted other than any receivables sold on non-recourse basis; (f) any amount raised under any other transaction, including any forward sale or purchase agreement, having the effect of a borrowing; (g) any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price and for calculating the value of any derivative transaction, only the market value of such transaction shall be taken into account; any counter indemnity obligation in respect of a guarantee, indemnity, bond, documentary letter of credit or any other instrument issued by a bank or financial institution; the amount of any liability in respect of any of the guarantee or indemnity." 23. A creditor in order to come within the meaning of "Financial Creditor" has to fulfil the following essential criteria: i. A person to whom a 'financial debt' is owned and includes a person whom such debt has been legally assigned or transferred; ii. The debt along-with interest, if any, is disbursed against the consideration for time value of money and includes any one or more mode of disbursed as mentioned in clause (a) to clause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mount debited to his account as per the provisions of Clause 13." (Emphasis Given) 26. Applicants have admitted in the present petition that the respondent has paid monthly assured return to the applicants till the month of November 2015 and thereafter stopped making payment. There is also no denial that the applicants have claimed Rs. 72,38,516/- which consists of the assured return and interest thereon @ 24% per annum for the period from 16.10.2015 to January 2018. Therefore the financial debt claimed in the present application is towards the interest and assured return till January 2018. 27. As per the Agreement to Sub-lease and MOU dated 24.02.2012 'Assured Return' is payable till completion and licensing of the premises. The contractual term further provides that liability of the developer shall cease after the premises has been licensed by the developer. Respondent had written a letter dated 14.12.2015 to the applicants to take possession of the unit within 15 days of the issue of the letter stating that the premises are ready for possession and to treat it as final notice as per Agreement to Sub-lease. Thereafter in terms of Agreement to Sub-lease and MOU dated 24.02.2012 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laim is disputed. It has been shown that the premises was completed, Licensed on 06.07.2015 and possession of the premises was handed over on 08.05.2016. As per Clause 10 of the said MOU the respondent had to licence the said commercial space to any third party on behalf of the applicants and the applicants had authorized respondent to grant such licence. Further as per the agreed contractual provision 'Assured Return' is payable till completion and licensing of the premises. Applicant has miserably failed to substantiate as to how 'Assured Return' has been claimed till January 2018 for the period much after completion and licensing of the premises. Applicant has not come with clean hand as material developments pertaining to the premises for the period from November 2015 till January 2018 have not been disclosed. That apart applicants miserably failed to substantiate its claim of assured return till January 2018 with supporting documentary evidence nor could satisfactorily repudiate the contention of the respondent. 31. It is also pertinent to note here that the present case is clearly distinguishable from the case of Nikhil Mehta & Sons v. AMR Infrastructure Ltd. passed in Compa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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