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TMI Blog2019 (2) TMI 1041X X X X Extracts X X X X X X X X Extracts X X X X ..... Shreya Kohli, Advocates JUDGMENT M.M. Kumar, President. Mr. Shinoj Koshy claiming to be a '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. Granite Gate Properties Private Limited, who is claimed to be the corporate debtor. 2. The Respondent company-the Corporate Debtor, M/s. Granite Gate Properties Private Limited (CIN U45200DL2007PTC202952) was incorporated on 16.05.2007 under the provisions of the Companies Act, 1956. The registered office of the respondent corporate debtor is situated at C-23, Greater Kailash Enclave, Part-1, New Delhi-110048. Its authorized share capital is ₹ 6,00,00,000/- and the paid up share capital is ₹ 5,05,43,450/- which is based on the details given in master data obtained from the official website of Registrar of Companies (Annexure-K). Since the registered office of the res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate Debtor unilaterally extended the date of delivery of the said Apartment to November, 2020. 5. There was apparently inordinate delay in delivering the possession of the said flat. As a result, a letter dated 17.07.2018 (Annexure I) was sent by the petitioner to the Corporate Debtor seeking refund of the entire amount along with interest and compensation for mental trauma and harassment etc. within 7 days from the date of receipt of the said letter but all in vain. 6. It is also the case of the petitioner that in terms of clause 5.5 of the Agreement (Annexure D), the Corporate Debtor was liable to pay compensation to the Financial Creditor upon delay in completion of construction. The relevant extract of the Agreement reads thus:- 5.5 Subject to the Buyer having complied with its obligation under this Agreement as well as the Allotment Letter, including but not limited to timely payment of the Consideration and other charges as per Payment Plan opted by the Buyer, in the event of any wilful delay in construction of the Apartment for reasons attributable solely to the Company, delay charges would be payable to the Buyer, in the manner and to the extent specified hereinb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid to the respondent company was for the purpose of allotment of the project being developed and constructed by the respondent company in the name and style of Lotus Panache . (iv) A premature demand is made by way of present application because as per clause 5.1 of the Agreement, it was specifically agreed with mutual consent by and between the parties that the Respondent would endeavour to complete the construction of the Apartment within 39 months from the allotment of the Apartment as per the Allotment letter, subject to grant of necessary approvals/NOC's, timely payments and subject to clause 5.2. It is submitted that delay occurred in completion of the said Apartment on various reasons like injunction order dated 11.01.2013 passed by Hon'ble National Green Tribunal whereby the builders were restrained from extracting ground water for the purpose of construction. The unrest and agitation by the farmers against acquisitions of the land by the Noida authority/U.P. Govt. On account of lack of availability of sand in light of the Maa Durga Shakti Nagpal's case whereby various executive orders were passed prohibiting excavation of sand from Yamuna river bed. In vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he reply. 11. Now we deal with the submissions made on behalf of the Petitioners. 12. Mr. Sanjay Kumar, 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 Creditor 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 manne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ida, District Gautam Budh Nagar, Uttar Pradesh for the total consideration of ₹ 1,33,62,895/- under the aforesaid project of the Corporate Debtor. In the light of the said agreement, the petitioner have paid a total amount of ₹ 72,20,852.61/- to the Corporate Debtor of the total sale consideration. According to the terms of the agreement, the Corporate Debtor was to handover physical possession of the aforesaid unit to the petitioner within a period of thirty nine (39) months from the date of allotment of the Apartment i.e. on or before 09.05.2017. 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 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esident of GG-1/ 144/C, Vikas Puri, Near PVR, New Delhi-110018 with email id [email protected] is appointed as an Interim Resolution Professional. 22. 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. 23. 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 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 ben ..... X X X X Extracts X X X X X X X X Extracts X X X X
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