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TMI Blog2019 (1) TMI 728X X X X Extracts X X X X X X X X Extracts X X X X ..... pany-the Corporate Debtor, Parsvnath Landmark Developers Private Limited (CIN U45201 DL2003PTC122489) was incorporated on 06.10.2003 under the provisions of the Companies Act, 1956. The registered office of the respondent corporate debtor is situated at Parsvnath Tower, Near Shahdara Metro Station, Shahdara Delhi, Delhi-110032 and the Corporate Office is at 6th Floor, Arunachal Building, 19, Barakhamba Road, New Delhi- 110001. Its authorized share capital is Rs. 3,46,01,010/- and the paid up share capital is Rs. which is based on the details given in master data obtained from the official website of Registrar of Companies (Annexure-B). Since the registered office of the respondent corporate debtor is in Delhi, this Tribunal being Adjudicating Authority has territorial jurisdiction in respect of respondent corporate debtor as per the provisions of sub-section (1) of Section 60 of the Code. 3. The 'Financial Creditors'-Petitioners have proposed the name of Resolution Professional, Shri Yash Jeet Basrar, A-71, Golf View Apartments, Sapatparni CGHS Ltd., Plot No. 4, Sector 19B, Dwarka, [email protected]. He has New Delhi-110075, email id registration No. IBB1/1PA-002/1P-N00275 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their counsel seeking either to handover physical possession of the flat or in the alternative to refund the the the entire amount of Rs. 10, towards principal amount along with interest@ 24% per annum from the date of payment and Rs. 18,69,672.11 with interest @ 6% per annum within 15 days from the date of receipt of the notice. The petitioners have also filed a consumer complaint [Annexure-D (colly)] titled as Alka Agarwal & Ors. v. M/S Parsvnath Landmark Developers Pvt. Ltd. before the National Consumer Disputes Redressal Commission, New Delhi which is pending adjudication. 6. The 'Financial Creditor' has also attached a list of other documents to the application to prove the financial debt, the total arnount due and payable along with the date of default. 7. It is claimed that the Respondents are liable to pay an amount of Rs. 24,73,42,927/- (Rupees Twenty Four Crores Seventy Three Lakhs Forty Two Thousand Nine Hundred and Twenty Seven Only) to the petitioners. 8. On 02.01.2019 when the matter came up for arguments, the proxy counsel for the Corporate Debtor stated that the arguing counsel is not available. We heard the arguments of the petitioner's counsel, res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12.2016 and further on 20.02.2017 to DMRC requesting to provide the documents as proof to show the ownership of the land. In the meeting of DMRC held on 09.06.2017 it was categorically recorded that due to the dispute between NDMC and L&DO the sanction of revised Building Plans of the project in question are held up. With regard to the aforesaid issue of the ownership of the land, proceeding is pending before the Hon 'ble High Court of Delhi in the matter of La-fropicana Resident Welfare Association v. Parsvnath Landmark Developers Pvt. Ltd. In light of direction issued by the Hon 'ble High Court vide its order dated 14.08.2018 a meeting was held 30.08.2018 between L&Do, DMRC, NDMC, Respondent company and the representatives of La- Tropicana RWA whereas the said issue was settled. Lastly, it was highlighted that in view of the abovesaid facts the delay in completion of the project is totally beyond the control of the Respondent company. Copies of the letters issued by the authorities, Minutes of the Meeting dated 09.06.2017 of DMRC and Minutes of Meeting dated 30.08.2018 have been placed on record [Annexure R-2 (colly), R-3 & R-4]. (v) Comprehensive disputes exist in the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... djudicating Authority) Rules, 2016 read with Section 7 of the Code. We are satisfied that a default amounting to lacs of rupees has occurred. As per requirement of Section 4 of the Code if default amount is one Iac or more then the CIR Process would be issued. The application under sub section 2 of Section 7 is complete; and no disciplinary proceedings are pending against the proposed Interim Resolution Professional. 15. It is pertinent to mention here that clause (8) of Section 5 of the Code has been amended by the Insolvency and Bankruptcy (amendment) Ordinance, 2018 with effect from 6th June, 2018. In view of the revised definition, any amount raised from an allottee under a real estate project is deemed to be an amount having the commercial effect of a borrowing and thus is covered by the definition of 'Financial Debt' under the Code. Definition of 'Financial Debt' has been amended to specifically include dues of home buyers i.e. Real Estate (Residential). The amendment also recognizes home buyers as "Financial Creditor". Accordingly, the home buyers can initiate Corporate Insolvency Resolution Process against defaulting builder or developer, as "Financial Cred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner. The total amount received by the Corporate Debtor from the petitioner since 30.07.2009 upto 16.11.2012 is Rs. 9,47,96,942/- which is patent from a perusal of the customer ledger. The amount has been raised from the petitioners/ allottees under a real estate project. In such a situation not only the debt has a commercial effect of borrowings and come within the scope of 'financial debt' but also the petitioners are covered by the definition of expression 'financial creditor'. 18. Therefore, petitioners being financial creditors can invoke Corporate Insolvency Resolution Process under Section 7 of the code against the respondent corporate debtor in case of default in repayment of financial debt. 19. It is true that the proceedings under the Code are not in the nature of recovery. In the present application the Financial Creditors are seeking initiation of Corporate Insolvency Resolution Process by making prayer that all the Financial Creditors, Operational Creditors and others may raise their claims and if Corporate Financial Restructuring is possible then within the stipulated period it may be explored failing which the due process of law is to take i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on number IBBI/IPA- 002/1P-N00275/2017-18/10833, resident of A-71, Golf View Apartments, Sapatparni CGHS Ltd., Plot No. 4, Sector 19B, Dwarka, New Delhi-110075 with email id - [email protected] is appointed as an Interim Resolution Professional. 24. In pursuance of Section 13 (2) of the Code, we direct that Interim Insolvency Resolution Professional to make public announcement immediately with regard to admission of this application under Section 7 of the Code. The expression 'immediately' means within three days as clarified by Explanation to Regulation 6 (1) of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. 25. We also declare moratorium in tems 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 including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; (b) transferring, encumbering, alienating ..... X X X X Extracts X X X X X X X X Extracts X X X X
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