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TMI Blog2018 (11) TMI 1411X X X X Extracts X X X X X X X X Extracts X X X X ..... NO. IB-486(PB)/2018 - - - Dated:- 15-10-2018 - MR M. M. KUMAR, PRESIDENT AND MR S.K. MOHAPATRA, MEMBER (T) For The Petitioner : Deepak Dahiya and Sachin Malik, Advocates For The Respondent : Ex-parte JUDGMENT M. M. KUMAR, PRESIDENT Smt. Usha Devi claiming as the financial creditor has filed this application under Section 7 of the Insolvency and Bankruptcy Code, 2016 (for brevity the Code ) read with rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (for brevity the Rules ) with a prayer for initiation of Corporate Insolvency Resolution Process in respect of respondent company, M/s Praveer Constructions Private Limited, claimed to be the corporate debtor. 2. Mr. Mohit Mathur, son of the petitioner has been authorized to sign and submit the petition by the Special Power of Attorney dated 23.04.2018 (at pgs. 25-26) executed by the petitioner in his favour. 3. The Respondent company M/s Praveer Constructions Private Limited (CIN U45201DL1999PTC101672) the Corporate Debtor-Respondent was incorporated on 23.09.1999 under the provisions of the Companies Act, 1956. Mr. Sudhir Khurana is a Director of respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the 30 month s completion period as per the terms recorded in the Unit Buyer Agreement. In the said project the Petitioner also had an option to sell the entire Super Area of 1200 Sq.ft. @ 15,833/- per Sq.ft. on the expiry of 30th months from the date of executing the agreement and buyer agreement. 7. The agreement with regard to Assured Return of the aforesaid Addendum to Unit Buyer Agreement (Exhibit-4) executed between the Petitioner and the Respondent-Corporate Debtor would thus read as under: - That for consideration recorded in the preamble the company shall from the date of signing and execution of this Addendum pay the Allottee (s) a monthly sum of ₹ 4,33,333/- (Rupees Four Lacs Thirty-three thousand Three Hundred Thirty-three per month) (hereinafter referred to as Assured Return ) deemed to be expected on completion of 30 monthly revenue generation envisaged, and so hereby being underwritten by the company, from the said premises and the monetary outlay involved in the purchase thereof by the Allottee (s). 8. Subsequently memorandum of settlement/understanding dated 28.03.2012 (Exhibit-6) was executed between the Respondent Company and the Petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayment shortly, which in fact was never made. 10. It is alleged that the Respondent has failed to refund the assured amounts in accordance with Unit Buyer Agreement (Exhibit-4) till date despite various requests and efforts made by the Petitioner. A demand notice dated 19.12.2017 (Exhibit-9) to that effect was sent by the Petitioner to the Respondent which as per the tracking report was returned with the endorsement item delivery attempted Door locked . The petitioner has written various e-mails (Exhibits-8, 10 11) to the Respondent. E-mail dated 29.12.2017 (at page 85) highlights the assurance given by the Respondent to the Petitioner for resolving the issue amicably within 30 days. The aforesaid assurance reads as under:- Dear Ma am, We hereby request too resolve the issue amicably within 30 days. Looking forward for kind cooperation. 11. It is claimed that the Respondent is liable to pay an amount of ₹ 1,04,26,000/- (Rupees One Crore Four Lac Twenty Six Thousand) till April 18, 2018 to the petitioner and further interest thereon @ 12% per annum from April 18, 2018 till the date of realization of the amount. 12. The petitioner made various atte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct that the petitioner is also one of the investors of the Corporate Debtor. 6. August 12, 2016 Application was filed by the Managing Director of the Corporate Debtor in the Hon ble High Court of Delhi duly Acknowledging the payment due to various investors. 7. September 26, 2016 Email seeking documents was issued on behalf of the Petitioner to the Corporate Debtor. 8. October 19, 2016 Reminder was sent to the Corporate Debtor. 9. October 27, 2016 Some of the documents sought on behalf of the petitioner were shared by the Managing Director of the Petitioner. 10. December 24, 2017 Final Demand Notice was issued on behalf of the Petitioner. 11. December 29, 2017 Request from the Managing Director of the Corporate Debtor to the Petitioner to amicable resolve the issue within 30 days. 12. April 27, 2018 Pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of the son/authorized representative of the Petitioner as per bank statement (Exhibit-A at pg. 11) and further by way of an e-mail dated 29.12.2017 whereby assurance was given by the Respondent to the Petitioner for resolving the issue amicably within 30 days. All these documents show that a fresh period of limitation became available to the Petitioner for filing the present application. In the present case the acknowledgement of liability/debt dated 22.01.2015 in the form of transfer of part payment and further email dated 29.12.2017 are sufficient to fulfil the requirement of Section 18 of Limitation Act. The amount of ₹ 25,000/- was paid on 22.01.2015 which is within three years of the date of settlement agreement executed on 28.03.2012. The email dated 29.12.2017 is again within three years of 22.01.2015. The present application was filed on 27.04.2018 which is much prior to the expiry of three years. 15. Now we deal with the submissions made on behalf of the Petitioner. 16. Mr. Deepak Dahiya, learned Counsel for the petitioner has argued that all requirements of Section 7 of the Code for initiation of Corporate Insolvency Resolution Process by a Financial Credit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ebt has been amended to specifically include dues of home buyers. Amendment Act recognizes home buyers as Financial Creditor . Accordingly, the home buyers can initiate Corporate Insolvency Resolution Process against defaulting builder or developer, as Financial Creditor in terms of Explanation to Section 5(8)(f) of the Code with effect from 06.06.2018. 20. It is also pertinent to mention that apart from the agreement executed in the year 2006 even the settlement reached on 28.03.2012 would patently show that the Corporate Debtor was to allot physical possession of first and second floor of plot No. C-1, Jagatpura, Jaipur (Rajasthan) whenever clear title was to be handed over to the Corporate Debtor by the Jaipur Development Authority along with a sum of ₹ 60,00,000/- (Rs. Sixty Lacs only) was to be paid to the Financial Creditor. The petitioner is thus covered by the expression Financial Creditor as has been used in the amended definition of Section 5(8)(f) of the Code and the explanation. In that regard we draw support from the observations made by Hon ble the Appellate Tribunal in the case of Rajendra Kumar Saxena v. Earth Gracia Buildcon (P.) Ltd. [Appeal (AT) (I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , an application is to be made under sub-section (1) in such form and manner as is prescribed, which takes us to the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. Under Rule 4, the application is made by a financial creditor in Form 1 accompanied by documents and records required therein. Form 1 is a detailed form in 5 parts, which requires particulars of the applicant in Part I, particulars of the corporate debtor in Part II, particulars of the proposed interim resolution professional in part III, particulars of the financial debt in part IV and documents, records and evidence of default in part V. Under Rule 4(3), the applicant is to dispatch a copy of the application filed with the adjudicating authority by registered post or speed post to the registered office of the corporate debtor. The speed, within which the adjudicating authority is to ascertain the existence of a default from the records of the information utility or on the basis of evidence furnished by the financial creditor, is important. This it must do within 14 days of the receipt of the application. It is at the stage of Section 7(5), where the adjudicating authority is to be satisf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; (b) transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; (c) any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; (d) the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. 30. It is made clear that the provisions of moratorium shall not apply to (a) such transactions which might be notified by the Central Government in consultation with any financial regulator; (b) a surety in a contract of guarantor to a Corporate Debtor. Additionally, the supply ..... X X X X Extracts X X X X X X X X Extracts X X X X
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