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TMI Blog2019 (3) TMI 1234X X X X Extracts X X X X X X X X Extracts X X X X ..... nsolvency Resolution Process has been prayed for, was incorporated on 07.06.2010 and presently has its registered office at C-23, Greater Kailash, Enclave, Part-1, New Delhi-110048. Since the registered office of the respondent corporate debtor is in New Delhi, this Tribunal having territorial jurisdiction over the NCT of Delhi is the Adjudicating Authority in relation to the prayer for initiation of Corporate Insolvency Resolution Process in respect of respondent corporate debtor under sub-section (1) of Section 60 of the Code. 3. It is appropriate to mention that Mr. Virender Sehgal, Director of applicant company has duly authorized to file present application under Section on behalf of the company vide Board Resolution dated 28.07.2018. The copy of the Board Resolution dated 28.07.2018 has been placed on record. 4. The applicant has proposed the name of Mr. Amit Agrawal, for appointment as Interim Resolution Professional having registration number IBBI / IPA - 02 / IP-N-00185 / 2017-18 / 10456 resident of H-63, Vijay Chowk, Laxmi Nagar Delhi - 110092, email id [email protected]. Mr. Amit Agrawal has agreed to accept appointment as the interim resolution professional and has s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... record. * In November, 2010, the Allotee advanced a further sum of Rs. 44,25,000/- to the corporate debtor, and against which amount a receipt dated 17.12.2010 was issued in the name of allottee. * The allottee advanced a further sum of Rs. 39,00,000/- towards the said commercial space against demand raised by the corporate debtor. Acknowledgment in lieu thereof was issued by the corporate debtor vide receipt dated 11.01.2001. 7. It is contended that pursuant to the allotment, the corporate debtor raised various demands for payment on the allottee, and which demands were met in entirely by the allottee by giving further advances to the corporate debtor in the sums of Rs. 8,17,442/- on 01.12.2011, Rs. 34,08,889.50/- on 14.05.2012, and Rs. 44,39,789.50/- on 03.01.2013. The said amounts were acknowledged as received by the corporate debtor vide receipts dated 15.12.2011, 18.05.2012 and 08.01.2013 respectively. 8. It is also mentioned that the corporate debtor also executed one 'Office /Unit Buyer Agreement' dated 08.01.2013 ("Agreement") in favour of the Allottee. The Agreement fructified the terms between the parties quo rights of the Allottee in the Commercial Unit and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. 11. The 180 days of grace period too expired on 07.07.2016. Notwithstanding, the corporate debtor continued to raise demands for payments on the allottee. As against the demand so raised, the allottee advanced another amount of Rs. 22,80,640/- to the corporate debtor vide cheque dated 02.11.2016, and which amount was acknowledged vide receipt bearing number 6100000953 dated 03.11.2016. An amount of Rs. 23,036.65/- was also got deposited towards TDS in the name of the corporate debtor by the allottee, and acknowledgment of payment in Form 26QB as printed on 02.11.2016 is (Annexure Q). Prior to making the payment, the Allottee's representatives were assured by the corporate debtor that the project shall be completed by the end of 2016. 12. The corporate debtor, however, failed to complete the construction of the Commercial Unit and the Project within time despite assurances and receipt of amount as above. Allottee therefore issued one letter dated 09.01.2017 to the corporate debtor, putting it to notice qua delay and seeking information with respect to the present status of the project and the date on which possession shall be handed over. Further, reminders were sent to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Further on account of Force Majure the claim of applicant is pre-mature. 16. In respect of this objection of the respondent the applicant has filed a rejoinder and submitted that there was no adverse effect on the development of the project due to demonetization and order of the NGT as the respondent kept asking for its payments as per the agreement during the said period. The petitioner further submitted in its rejoinder that the order passed by UPRERA is a conclusive proof that the claim of petitioner is due and payable by the respondent. It is further denied that the said order was obtained by way of misrepresentation. 17. We have heard the parties and have perused the case records including the counter affidavit of respondent. 18. The scheme of the Code provides for triggering the insolvency resolution process by three categories of persons namely,- a) Financial creditor b) Operational creditor, and c) Corporate debtor itself. 19. The procedure in relation to the Initiation of Corporate Insolvency Resolution Process by the "Financial Creditor" is delineated under Section 7 of the Code, wherein only "Financial Creditor" / "Financial Creditors" can file an application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... having the commercial effect of a borrowing and (II) The expressions, "allottee" and real estate project shall have the meanings respectively assigned to them in clauses (d) and (zn) of Section 2 of the Real Estate (Regulation and Development) Act, 2016(16 of 2016) (g) any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price and for calculating the value of any derivative transaction, only the market value of such transaction shall be taken into account; (h) any counter-indemnity obligation in respect of a guarantee, indemnity, bond, documentary letter of credit or any other instrument issued by a bank or financial institution; (i) the amount of any liability in respect of any of the guarantee or indemnity for any of the items referred to in sub-clauses (a) and (h) of this clause." 22. Clause (8) 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 shall be deemed to be an amount having the commercial effect of a borrowing and thus will come within th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t a corporate debtor before the Adjudicating Authority when a default has occurred. Explanation.- For the purposes of this sub¬section, a default includes a default in respect of a financial debt owed not only to the applicant financial creditor but to any other financial creditor of the corporate debtor. (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. (3) The financial creditor shall, along with the application furnish- (a) record of the default recorded with the information utility or such other record or evidence of default as may be specified; (b) the name of the resolution professional proposed to act as an interim resolution professional; and (c) any other information as may be specified by the Board. (4) The Adjudicating Authority shall, within fourteen days of the receipt of the application under sub-section (2), ascertain the existence of a default from the records of an information utility or on the basis of other evidence furnished by the financial creditor under sub-section (3). (5) Where the Adjudicating Authority is satisfied that- (a) a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... due to order passed by the NGT. The respondent had failed to show that the demand of the petitioner is pre-mature. Besides the claim of the petitioner has been admitted by the UPRERA, which shows that the claim of petitioner is a financial debt as defined under the Code and the respondent has defaulted in re-payment of said claim. 31. In the present case the amount of default exceeds much more than 1 lakh. In view of Section 4 of the Code, the moment default is Rupees one lakh or more, the application to trigger Corporate Insolvency Resolution Process under the Code is maintainable. There is sufficient material on record to conclude that respondent corporate debtor has committed default in repayment of the financial debt. 32. Under sub-section 5 (a) of Section 7 of the code, the application filed by the applicant financial creditor has to be admitted on satisfaction that: 1. Default has occurred. 2. Application is complete, and 3. No disciplinary proceeding against the proposed IRP is pending. 33. As a sequel to the aforesaid discussion it is seen that the applicant clearly comes within the definition of Financial Creditor. The material placed on record further confirms th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitization 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." 38. It is made clear that the provisions of moratorium shall not apply to transactions which might be notified by the Central Government or the supply of the essential goods or services to the Corporate Debtor as may be specified, are not to be terminated or suspended or interrupted during the moratorium period. In addition, as per the Insolvency and Bankruptcy Code (Amendment) Act, 2018 which has come into force w.e.f. 06.06.2018, the provisions of moratorium shall not apply to the surety in a contract of guarantee to the corporate debtor in terms of Section 14 (3) (b) of the Code. 39. The Interim Resolution Professional shall perform all his functions contemplated, inter-alia, by Sections 15, 17, 18, 19, 20 & 21 of the Code and transact proceedings with utmost dedication, honesty and strictly in accordance with the provis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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