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TMI Blog2018 (6) TMI 859X X X X Extracts X X X X X X X X Extracts X X X X ..... e order passed by Learned Chief Metropolitan Magistrate, Tis Hazari Court, New Delhi. At the outset it is pertinent to point out that the order dated 23.12.2017 [Annexure-II (colly)] shows that between the applicants/interveners and the Directors of the Respondent-Company, mediation process is going on. As we have already observed in preceding para that the pendency of the mediation process between the Directors of the Respondent-Company and the applicants/interveners would not cause any impediment with regard to initiation of Corporate Insolvency Resolution Process because under Section 7 of the Code the pendency of a mediation process is no bar to the admission of the petition and initiation of Corporate Insolvency Resolution Process. We proceed to entertain the petition and leave the applicants/interveners to choose their remedy in accordance with law. - C.P. NO. IB-02(PB)/2017 - - - Dated:- 10-5-2018 - MR. M. M. KUMAR AND MR. S. K. MOHAPATRA, JJ. For The Applicant : Mr. Varun Kathuria, Advocate For The Respondent : Mr. Shankar Kumar Jha, Advocate For The Intervener : Mr. Siddharth Banthia, Advocate JUDGMENT M. M. KUMAR, PRESIDENT All ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the projects, Kessel-I Valley, I Mall and I Homes which were being developed by and promoted by the Corporate Debtor . One of the unit was purchased by the Applicant(s) under the Committed Return Plan . According to the terms the Applicant(s) were to pay a substantial portion of the total sale consideration upfront at the time of Execution of the MOU, and the Respondent undertook to pay a particular amount to the buyer/purchaser (The applicant(s) in this case) each month, as Committed Returns/Assured Returns from the date of execution of the MOU till the time the actual physical possession of the unit was to be handed over to the buyer/purchaser. In the said projects the applicants also had an option to choose the construction and time-linked payment plan. According to the terms they were required to pay a certain percentage of the sale consideration amount at various stages of construction of the project. The Respondent started paying the Committed Returns to the Applicant(s) as per the MOU, but stopped the same from April, 2014, in respect of the unit of the Applicants No.3 and 4, and from January, 3 2014, in respect of the units of the remaining Applicants, unilaterally and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were started by various customers including initiation of proceedings before Consumer Courts, Arbitration proceedings, cheque bouncing charges, criminal complaints etc. various FIR s were also registered against the Respondent company. 10. The Corporate Debtor further asserted that it is making consistent efforts to resolve the issues/grievances pertaining to the dispute so that the matter can be settled amicably between the parties. Moreover, the Respondent Company with the help of Strategic Investor who is interested in investing in the project, wishes to complete the construction work/pending work within given time frame so that the project could be completed and delivered on time to the buyers. 11. The Corporate Debtor further asserted that few winding up petitions against Respondent Company have also pending before Hon ble Delhi High Court. In those petitions Hon ble High Court of Delhi also permitted the Respondent to furnish a concrete proposal before the Hon ble Court for consideration and said petitions are still pending. Those petitions have not been admitted nor any provisional liquidator has been appointed. 12. The Corporate Debtor has submitted that for finali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 59,75,659.05 Commitment charges 15,30,91,296.00 32,32,97,199.00 Processing Fee 7,49,449.00 Bank Charges 7,76,690.19 4,71,313.03 23,35,16,293.00 35,03,45,123.09 22. Form 16A shows the TDS deducted from the interest earned by the appellant Nikhil Mehta under Section 194A of the Income-tax Act 1961. Therein summary of payment including amount credited has been shown as follows:- Summary of Payment Amount paid/credited (₹) Nature of Payment Date of payment/credit (dd/mm/yyyy) Status of Booking 41,107.00 194A-Interest other than Interest on Securities 30/04/2011 MATCHED 41,107.00 194A-Interest other than Interest on Securities 30/05/2011 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Understanding. It was agreed upon by the respondent that since the appellants have paid most of the amount the respondent was ready to pay monthly committed returns to the appellants. However, as the appellants were not required the monthly return till December 2008 i.e. for 9 months so the Respondent-Corporate Debtor undertook to make a consolidated payment of ₹ 99,600 less TDS. For every calendar month the Corporate Debtor was liable to pay committee return w.e.f January 2009 till the date of handing over of the possession to the appellants. Therefore, it is clear that the amount disbursed by the appellants was against the consideration of the time value of the money and the Respondent-Corporate Debtor raised the amount by way of sale-purchase agreement, having a commercial effect of borrowing. This is also clear from annual returns filed by Respondent and not disputed by the Respondent-Corporate Debtor in their annual returns, wherein the amount so raised/borrowed has been shown as commitment charges under the head Financial cost . The financial cost includes Interest of loans and other charges. Therefore, the commitment charge , which include interest on loa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld that the amount invested by applicants come within the meaning of financial debt as defined in Section 5(8)(f) and that the applicants are financial creditors. We are also satisfied that the instant application of the financial creditors is complete and there is no disciplinary proceeding pending against the proposed IRP. 19. As a sequel to the above discussion, this petition is admitted and Mr. Vikram Bajaj, Flat No. 12, Vasudha Appartment, Plot-41, Sector 9, Rohini, Delhi - 110085, Registration No. IBBI/IPA-002/IP-N00003/2016-2017/10003 is appointed as an Interim Resolution Professional. 20. In pursuance of Section 13(2) of the Code, we direct that Interim Insolvency Resolution Professional shall immediately make public announcement with regard to admission of this application under Section 7 of the Code. We also declare moratorium in terms of Section 14 of the Code. A necessary consequence of the moratorium flows from the provisions of Section 14(1)(a),(b),(c) (d) and thus the following prohibitions are imposed which must be followed by all and sundry: (a) the institution of suits or continuation of pending suits or proceedings against the corporate debtor includi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a part of its obligation imposed by Section 20 of the Code and perform all his functions strictly in accordance with the provisions of the Code. 23. It is appropriate to mention that this matter was referred to Three Members Bench as winding up petitions under Section 433(e) of the Companies Act, 1956 were pending adjudication before Hon ble Delhi High Court. The view taken by the Three Members Bench in its order dated 16-02-2018 is based on a judgment of the learned Appellate Tribunal rendered in the cases of M/s. Unigreen Global (P.) Ltd. v. Punjab National Ors., Company Appeal (AT) (Insolvency) No. 81 of 2017 decided on 01.12.2017 as well as in the case of Forech India (P.) Ltd. v. Edelweiss Assets Reconstruction Co. Ltd. Anr., Company Appeal (AT) (Insolvency) No. 202 of 2017 decided on 23.11.2017. It has now been settled that the bar to institute proceeding under Section 11 of the Code would be attracted only if a winding up petition is admitted and a Provisional Liquidator is appointed. There is no petition so far admitted nor any Provisional Liquidator has been appointed. Therefore, bar created by Section 11 of the Code according to the judgments Unigreen Global (P. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry of possession of the apartments/flats etc. as well as on account of non-payment of assured return for considerable time, various allottees have resorted to different legal recourse. Many allottees have approached this Tribunal under Section 213(b) of the Companies Act, 2013. Over 500 allottees have filed a criminal complaint under Section 409 r/w Sections 415 and 120B of IPC before Economic Offence Wing, New Delhi which was registered at Crime No. 173/2015. A copy of FIR has been placed on record (Annexure-I). During the pendency of trial in the aforesaid FIR No. 173/2015 before Learned Chief Metropolitan Magistrate, Tis Hazari Court, Delhi, an offer of settlement was suggested on behalf of the Corporate Debtor-Respondent (including the ex-Director of the Respondent Company) and for consideration of the said offer, learned Court referred the matter before the Mediation Centre, High Court of Delhi by its order dated 23-12-2017. A copy of order dated 23-12-2017 has been placed on record [Annexure-II (Colly)]. 27. In the aforesaid application it is also averred that as per the aforesaid direction, before the Mediator of Hon ble High Court of Delhi and out of Court, great rounds ..... X X X X Extracts X X X X X X X X Extracts X X X X
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