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TMI Blog2019 (12) TMI 1138X X X X Extracts X X X X X X X X Extracts X X X X ..... n to Adjudicating Authority) Rules, 2016 read with Section 7 of the Code. This Tribunal is satisfied that a default has occurred and the application under Section 7 is complete. The name of the IRP has been proposed and his/her consent in Form 2 has been duly filed. There are no disciplinary proceedings pending against the proposed Interim Resolution Professional. Application admitted - moratorium declared. - C.P. IB NO. 964(PB) OF 2018 - - - Dated:- 17-9-2019 - Chief Justice M.M.Kumar, President And Dr. Deepti Mukesh, Judicial Member Dheeraj Gupta, Sanam Siddique and Rishabh Sehgal, Advs. for the Applicant. Raja Chatterjee and Adeel Ahmad, Advs. for the Respondent. JUDGMENT Dr. Deepti Mukesh, The Present Application is filed under section 7 of Insolvency and Bankruptcy Code, 2016 (for brevity 'Code, 2016') read with Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 by Urvashi Nangia (for brevity 'Applicant') with a prayer for initiation of Corporate Insolvency process against M/s Sana Realtors Private Limited (for brevity 'Corporate Debtor'). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t return ₹ 25,567.50 (Rupees Twenty-Five Thousand Five Hundred Sixty-Seven and Paise Fifty Only), to the second party of the Proposed Space on or before 10th of every month. Hence the total amount against 4 units amounting to a sum of ₹ 1,02,270/- was payable monthly with effect from 10.08.2010 on or before 10th day of every month. The assured return were to be paid till the time the premises were constructed by the Corporate Debtor and leased out. 7. The Applicant asserts that the corporate debtor has paid assured returns only till August 2014 and thereafter no payment was received from the corporate debtor. The Corporate Debtor has defaulted for 44 months in making payment towards the assured returns and as on April 2018, the total sum amounting to ₹ 44,99,880/- (Rupees Forty-Four Lakh Ninety-Nine Thousand Eight Hundred and Eighty only) became due and payable by the corporate debtor to the applicant. 8. The Applicant submits that as per clause 8 of the MoU, the Corporate Debtor assured to complete the structure in all respects including obtaining of Occupancy Certificate within 36 months subject to grace period of 12 months from May 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns amounting to ₹ 44,99,880/- totaling to a sum of ₹ 1,46,44,880/-. It is stated that the default in payment of assured returns by the corporate debtor is continuing. 12. The Corporate Debtor replied to the legal notice vide letter dated 21.05.2018 by asserting that the respondent had called upon the applicant to take the possession of the units in 2016 hence they are not liable to make the payment towards assured returns as alleged by the financial creditor. 13. The Applicant submitted that the total amount claimed towards assured returns and towards refund of initial disbursed payment alongwith stipulated penalty is ₹ 1,46,44,880/- which became due and payable by the corporate debtor, hence present application was filed. As per Form 1 under 'Part IV' the breakup of debt which fell due in terms of principal amount with interest and arrears of assured returns is given: Part IV Sl.No. Particulars of Financial Debt 1. Total amount of debt granted and date of disbursement ₹ 1,46,44,880/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed with respect to the payment of the financial debt due to the Applicant. 17. Admittedly the assured returns from August 2014 onwards are not paid which is not controverted by the corporate debtor. The penalty as per clause 8 gives sole discretion to the applicant in case of failure to offer of possession within 36 +/-12 months i.e. by May 2014 to cancel said space and to get the refund from the corporate debtor within 15 days along with penalty. As per reply of the corporate debtor it is admitted that the occupation certificate was obtained in the year 2017 and when occupation certificate is received in 2017 how can the corporate debtor offer possession in 2016 to the applicant as claimed by it. The corporate debtor has not produced any completion certificate. Even if the defense for delay is considered in present case, the delay is more than three years and hence non-payment of assured returns and penalty by the corporate debtor as per MoU will amount to default. The intent of the code to protect the allottee would be completely defeated, if such a defense of the corporate debtor is to be accepted. 18. The Judgment in this matter could not be pronounced earlier ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 by the ex-management or its ex-directors the Interim 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 shall be under 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. 23. We direct the Financial Creditor to deposit a sum of ₹ 2 lacs with the Interim Resolution Professional namely Mr. Amit Gupta to meet out the expense to perform the functions assigned to him in ac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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