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TMI Blog2019 (9) TMI 361X X X X Extracts X X X X X X X X Extracts X X X X ..... tries Ltd. vs ICICI Bank and Ors., [ 2017 (9) TMI 58 - SUPREME COURT ], as the Petitioner could not prove the existence of debt due from the Corporate Debtor, this Petition cannot be admitted. Petition rejected. - Mr. V. P. Singh, Member (Judicial) And Mr. Ravikumar Duraisamy, Member (Technical) For The Petitioner : Adv. Heena Vichare Adv. Disha R. Shah For The Respondent : Adv.Akshay Pare ORDER Per V.P. Singh, Member (Judicial) 1. This is a petition being CP 3741/2018 filed by Kanchan Rajmal Jain, Financial Creditor or Petitioner, under section 7 of Insolvency Bankruptcy Code, 2016 ( I B Code ) against Lodha Crown Buildmart Private Limited, Corporate Debtor, for initiating Corporate Insolvency Resolution Process ( CIRP ). The Petition is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6th floor. The fit out date in the third Agreement to Sell was postponed to 31.12.2016. It is alleged that the postponement of the fitout date from 31.12.2015 to 31.12.2016 was done without any prior information or intimation to the Petitioner. 5. The Petitioner in its letter dated 24.7.2017 claimed ₹24,50,000/- as compensation for the delay and default from the Corporate Debtor. The Petitioner further stated in the letter that she is ready to pay ₹9,21,655/- out of the total demand by the Corporate Debtor of ₹33,71,655/- after deduction of ₹24,50,000/-. In reply to this letter, the Respondent sent an email dated 8.8.2017 admitting that it had changed its plan and reduced the tower height as it could not secure civil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s suffered several injuries and damages due to unreasonable delay on the part of the Respondent and thereby claiming an amount of ₹56,00,000/- as compensation and interest thereon. The Respondent replied to this legal notice on 27.7.2018 denying the claim of the Petitioner on several grounds, including there being no provision in the Agreement to Sell for any compensation in the event of a delay. 9. The Respondent has filed an Affidavit in reply on 24.1.2019 opposing the admission of the Petition under Section 7 of the I B Code on the ground that there is no debt and default. The Respondent has relied on the third and the latest Agreement to Sell dated 8.3.2016 to state that the fitout possession date was 31.12.2016 and Clause 11.2 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as not been adjudicated by any competent authority, neither is it provided for in the impugned Agreement to Sell. The Petitioner has calculated the compensation amount on its whims and fancies without showing any legal or contractual provision for the same. The compensation amount cannot be said to be liquidated or a crystalized amount under any provision, whether legal or contractual. 14. The contention of the Petitioner that the Respondent has changed the fitout possession date and grace period in the third Agreement to Sell without disclosing and rather hiding it from the Petitioner is a disputed question of fact. The answer to this disputed question of fact is necessary for determining the existence of the debt. The three Agreements to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. 16. This Adjudicating Authority does not have the requisite power to determine the disputed question of fact that could establish the existence of the debt in this case. Therefore, in the facts and circumstances and as per the judgement of Hon ble Supreme Court in Innoventive Industries Ltd. vs ICICI Bank and Ors., AIR2017SC 4084, as the Petitioner could not prove the existence of debt due from the Corporate Debtor, this Petition cannot be admitted. ORDER This petition filed under Section 7 of I B Code, 2016, filed by Kanchan Rajmal Jain , Financial Creditor / Petitioner, under section 7 of Insolvency Bankruptcy Code, 2016 ( I B Code ) against Lodha Crown Buildmart Private Limited , Corporate Debtor for initiating corporate insolvency r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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