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TMI Blog2018 (11) TMI 1664X X X X Extracts X X X X X X X X Extracts X X X X ..... ted:- 30-11-2018 - DR. DEEPTI MUKESH, MEMBER (JUDICIAL ) AND MR S. K. MOHAPATRA, MEMBER (TECHNICAL) For The Applicant : Mr Sumesh Dhawan and Ms. Jasvin Dhama Advocate For The Respondent : Mr Rakesh Kumar, P.K. Sachdeva, Ms. Chetna Singh and Sahil Gupta Advs ORDER Per : S.K. Mohapatra, Member (Technical) M/s. Indiabulls Housing Finance Ltd, claiming as the financial creditor, has filed the instant 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 to trigger Corporate Insolvency Resolution Process in respect of respondent Company M/s. Rudra Buildwell Projects Private Limited referred to as the corporate debtor. 2. The Respondent Company M/s. Rudra Buildwell Projects Private Limited (CIN No. U 45400 DL 2010 PTC 209159) against whom initiation of Corporate Insolvency Resolution Process has been prayed for, was incorporated on 06.10.2010 having its registered office at D-53, Okhla, Phase ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat as per the request of respondent Corporate Debtor the applicant had sanctioned loan on 6th April, 2015 for a sum of ₹ 74,20,160/- (Rupees Seventy Four Lakhs Twenty Thousand One Hundred Sixty Only). The Loan agreement dated 06.04.2015 was executed between the applicant and the borrower and Aggregate loan amount sanctioned vide said loan agreement dated 06.04.2015 was for ₹ 73,23,391/- (Rupees Seventy Three Lakhs Twenty Three Thousand Three Hundred Ninety One Only). The loan agreement dated 06.04.2015 executed with Mr. Davendra Singh and Ms. Sushma Rajput, (borrowers) has been placed on record. 8. In addition a tripartite agreement dated 06.04.2015 was executed between the applicant, Corporate Debtor and the Borrowers. A copy of the tripartite agreement dated 06.04.2015 has also been placed on record. The applicant has submitted that in terms of the tripartite agreement dated 06.04.2015 the borrowers and Corporate Debtor are jointly and severally liable for payment of the Pre-Equated Monthly Instalment interest (pre-EMI interest) till commencement of the Equated Monthly Instalment (EMI) on the loan amount. It is stated in the application that the Corpor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n agreement. Further, it has come to our notice that neither the sale deed has been executed nor the possession of the property is given to the Said Allottee(s). Under the aforesaid circumstances and in terms of the tripartite agreement executed amongst Borrower, IHFL and you/permission to mortgage issued in favour of IHFL. In connection with the said Property. It has been agreed that in case of occurrence of Event of Default under Loan Agreement, it would result in cancelation of allotment whereby the entire amount due to IHFL, shall be refunded by the builder directly to IHFL for appropriation and adjustment by IHFL, against all monies due to it from the Borrower. In view of the above stated facts and circumstances, IHFL, hereby calls upon you to act and make good the agreed terms and conditions of the tripartite agreement/permission to mortgage by way of initiating cancel the allotment and refund the total balance outstanding amount of ₹ 7,522,77651/- (Rupees Seventy Five Lakhs Twenty Two Thousand Seven Hundred Seventy Six and Fifty Five Paisa Only) by way of outstanding principal, arrears (including accrued late charges) and interest till ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and Ninety One Only), an amount of ₹ 15,82,009/- (Rupees Fifteen Lakhs Eighty Two Thousand and Nine Only) i.e. the interest amount for the three years was deducted by the Financial Creditor towards interest for 3 years. Accordingly the interest payment of ₹ 15,82,009/-(Rupees Fifteen Lakhs Eighty Two Thousand and Nine Only) was already paid on 6th April, 2015 i.e. 3 years interest payment was made in advance. 14. It is the case of the respondent that as per Clause 15 of the Tripartite Agreement in the event of default by the borrower the respondent is to cancel the allotment of the residential apartment allotted in favour of the Flat Buyer with the intimation to financial creditor. Thereafter, all the money advanced by respondent to the Corporate Debtor in the account Flat Buyer for the said flat will be refunded back to it by the Corporate Debtor. However, it is submitted that in the present case an apartment No. 1601 at 16th Floor, Block A-1 was allotted to the borrower, wherein 90% construction have already been carried out in the said project and the Corporate Debtor is completely determined to give the delivery very shortly in future. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee(s)/borrower has not been cancelled as yet. 20. Respondent has emphasized that most of the constructions have already been carried out in the project consisting the apartment no. 1601 at 16th Floor, Block A-1 allotted to the borrower and the respondent builder is completely determined to give the possession of the flat very shortly. It is argued that in view of the advance stage of construction of the project and considering larger interest of Flat Buyers, it was decided not to cancel the allotment of the flat. 21. This is not the forum to examine as to why the allotment was not cancelled and who is in breach of contract. 22. In the present proceeding it is only to be seen that when allotment of Flat in the name of the borrower has not been cancelled, whether respondent builder is bound to refund the loan amount/allotment consideration to the applicant lender as claimed, at the back and without leave of the borrower/allottee. 23. Before coming to the issue some of the relevant undisputed factors are placed below. 24. Admittedly the borrower/allottee has not been made a party in the present proceedings, nor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n completed and consequently the due date of payment of first EMI shall in such a case be the last day of the said following month. Till the commencement of borrower shall pay pre-EMI, which is the simple interest on the loan amount disbursed calculated at the rate of interest as mentioned in the respective loan agreement of the Borrower. That the Builder shall not hand over the actual and physical possession of the said unit/residential apartment to the Borrower before execution and registration of the said deed and the original registered sale deed shall be submitted to IHFL directly by the Builder to be debt by IHFL towards security for the said loan without recourse to the borrower, to which the borrower hereby expressly consents and also authorizes the builder to deposit the documents on his/her behalf. 27. It is further pertinent to note that as per Clause 17 of the Tripartite Agreement dated 6th April, 2015 in case of any dispute the competent court at New Delhi will have an exclusive jurisdiction to adjudicate upon the dispute. As per the concluding part of the notice dated 5th March, 2018, as reproduced at Para 11 above, it is alleged that failure to canc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent as mentioned in clauses hereinabove, shall on intimation by IHFL cancel the allotment of the residential apartment in favour of the borrowers and all monies advanced by IHFL shall be refunded to IHFL, directly under intimation to the borrower for appropriation and adjustment by IHFL against all monies due to it from the Borrower as mentioned above. 32. Some of the other relevant provisions of Tripartite Agreement dated 6th April, 2015 is reproduced below: Clause 9 - That the Builder shall not hand over the actual and physical possession of the said unit/residential apartment to the Borrower before execution and registration of the said deed and the original registered sale deed shall be submitted to IHFL directly by the Builder to be dept by IHFL towards security for the said loan without recourse to the borrower, to which the borrower hereby expressly consents and also authorizes the builder to deposit the documents on his/her behalf. Clause 10 - That if the Borrower fails to pay the balance amount representing the difference between the loan sanctioned by IHFL and the actual purchase price of the union/residential apartme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rejoinder filed on 12.09.2018 has stated at para 8 of the preliminary submission that, It is evident from the Tripartite Agreement dated 06.04.2015 that it was the obligation of the Corporate Debtor to cancel the allotment of allotted residential apartment in favour of flat buyer/borrower and thereafter all the money advanced by the Financial Creditor to the Corporate Debtor will be refunded back to the Financial Creditor. (Emphasis given). 38. Likewise at para 2 of parawise rejoinder similar view has again been reiterated by applicant, which is reproduced as under, It is evident from the Tripartite Agreement dated 06.04.2015 that the amount was disbursed to the Corporate Debtor, and in event of default by Borrower, it was the obligation of the Corporate Debtor to cancel the allotment of allotted residential apartment in favour of flat buyer/borrower and thereafter all the money advanced by the Financial Creditor to the Corporate Debtor will be refunded back to the Financial Creditor (Emphasis given). 39. It is seen from the rejoinder of the applicant itself that refund of amount arises only after cancellation of the allotment. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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