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TMI Blog2019 (1) TMI 1504X X X X Extracts X X X X X X X X Extracts X X X X ..... 015878) the Corporate Debtor-Respondent was incorporated on 07.06.1983 under the provisions of the Companies Act, 1956. The registered office of the respondent corporate debtor is 2nd Floor, Rajendra House, E1/B1, Mohan Co-operative Industrial Estate, New Delhi-110044. Its authorized share capital is Rs. 7,50,00,000/- and the paid up share capital is Rs. 7,50,00,000/- which is based on the details given in master data obtained from the official website of Registrar of Companies (Annexure-I). 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 Amit Agarwal, H-63, Vijay Chowk, Laxmi Nagar, Delhi-110092, email id [email protected]. He has registration No. IBBI/IPA-IP/00041/2016-17/1063. A written communication sent by him in terms of Rule 9(1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 has also been placed on record (Annexure-VIII). The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce has been duly delivered to the Corporate Debtor on 27.03.2018 as per the service report (Annexure-VII) downloaded from the website of Postal Department. 7. It is claimed that the Respondent is liable to pay an amount of Rs. 24,63,440/- (Rupees Twenty Four Lakhs Sixty Three Thousands Four Hundred Forty Only) to the petitioners. 8. Learned counsel for the Corporate Debtor has opposed the admission of the application and has advanced the following arguments :- i) The application is not maintainable in the present form as Mr. Vishwam Jindal is not a financial Creditor. It is evident from the agreement that the plot in question was allegedly allotted to Puneet Jindal (HUF) and Mr. Vishwam Jindal in their separate capacities. It is trite that a Hindu Undivided Family is represented only by the Karta thereof, which in this case is Mr. Puneet Jindal. Hence, Mr. Vishwam Jindal was a separate and distinct applicant for the land as a co-allottee alongwith the HUF and signatures of both the co-allottees is essential for a valid execution of the Agreement to sell in favour of both. The agreement of sale dated 25.04.2015 contains the signature of only Mr. Puneet Jindal (HUF) through Karta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orate Insolvency Resolution Process by a Financial Creditors stand fulfilled. In that regard, he has submitted that the application is complete as per the requirements of Section 7 (2) of the Code and other conditions prescribed by Rule 4 (1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. He has further submitted that the details of default along with its dates have been clearly stated in part IV along with all the minute details. There is overwhelming evidence to prove default and name of the resolution professional has also been clearly specified. 13. Having heard the learned counsel for the parties it would first be necessary to examine the provisions of Section 7 (2) and Section 7 (5) of IBC which read as under:- "Initiation of corporate insolvency resolution process by financial creditor. 7(1)....................... 7 (2) The financial creditor shall make an application under sub-section (1) in such form and manner and accompanied with such fee as may be prescribed. 7(3)....................... 7(4)....................... 7 (5) Where the Adjudicating Authority is satisfied that- (a) a default has occurred and the application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Corporate Debtor was to allot physical possession of the aforesaid unit to the petitioners by 31.12.2012. The petitioners are 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 appended thereto. 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. passed in Appeal (AT) (Insolvency) No. 187 of 2018, dated 11-9-2018 wherein it has been held as under: "By the Insolvency and Bankruptcy Code (Amendment) Ordinance, 2018 No. 6 of 2018 dated 6th June, 2018 followed by the Act, in clause (8), in Sub-clause (f), of Section 5 an explanation has been inserted as per which any amount raised from an allottee under a real estate project shall be deemed to be an amount having the commercial effect of a borrowing. Thereby, after amendment of the Act, the allottees of real estate project have been treated as 'Financial Creditors'." (Emphasis supplied). A bare perusal of the aforesaid paragraph of the judgment would show that even without any element of 'assured ret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be successfully resisted on such a flimsy ground. Therefore, we have no hesitation to reject the defence raised on behalf of the Corporate Debtor. 22. As a sequel to the aforesaid discussion it is seen that the applicants being home buyers would fall within the definition of 'Financial Creditors'. The material placed on record further confirms that applicant financial creditor had disbursed the money to the respondent corporate debtor as consideration for purchase of a residential unit. Though a considerable long period has lapsed even the principal amount disbursed has not been repaid by the respondent corporate debtor. It is accordingly held that respondent corporate debtor has committed default in repayment of the outstanding financial debt which exceeds the statutory limit of rupees one Lakh. Thus, the application warrant admission as it is complete in all respects. 23. Accordingly, in terms of Section 7(5)(a) of the Code, the present application is admitted. 24. Mr. Amit Agarwal, having registration number IBBI/IPA-IP/00041/2016-17/1063, resident of H-63, Vijay Chowk, Laxmi Nagar, Delhi-110092 with email-id - [email protected] is appointed as an Interim Reso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stages of Corporate Insolvency Resolution Process. His conduct should be above board & independent; and he should work with utmost integrity and honesty. It is further made clear that all the personnel connected with the Corporate Debtor, erstwhile directors, promoters or any other person associated with the Management of the Corporate Debtor are under legal obligation under Section 19 of the Code to extend every assistance and cooperation to the Interim Resolution Professional as may be required by him in managing the affairs of the Corporate Debtor. In case there is any violation committed by the ex-management or any tainted/illegal transaction by ex-directors or anyone else the Interim Resolution Professional/Resolution Professional would be at liberty to make appropriate application to this Tribunal with a prayer for passing an appropriate order. The Interim Resolution Professional/Resolution Professional shall be under a duty to protect and preserve the value of the property of the 'Corporate Debtor' as 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. 29. The office is dire ..... X X X X Extracts X X X X X X X X Extracts X X X X
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