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TMI Blog2020 (2) TMI 193X X X X Extracts X X X X X X X X Extracts X X X X ..... application under Section 7 has been filed by 100 allottees, who are members of RWA or a 10% of the allottees who are members of the allottees to maintain it. The Adjudicating Authority is required to take into consideration only the Form-1 and the enclosure therein but find out the default, if any and to proceed in accordance with law. Before the admission of the application under Section 7, the Adjudicating Authority has no jurisdiction to direct the Corporate Debtor to deposit any amount to certain corpus or with regard to maintenance which may not be a subject matter of application under Section 7. Case remanded to the Adjudicating Authority to decide the matter in accordance with law taking into consideration the fact whether the clai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot in default should be handed over to the RWA in terms of the agreement. To come up on 25th November, 2019. The Corporate Debtor shall also indicate what are the common facilities which are being provided to the residents from the one-time maintenance deposit towards Common Area Maintenance." 2. The Record shows that the application under Section 7 of the Insolvency and Bankruptcy Code, 2016 has been filed by 'M/s. Vipul Greens Residents Welfare Associates' alleging non transfer of 'Interest Bearing Maintenance Security Deposit' (IBMS). 3. In the said application, before admitting, the Adjudicating Authority directed to give details of the maintenance amount outstanding in respect of 384 allottees (i) who are members of the RWA/Applicant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Code is to ensure that when a default takes place, in the sense that a debt becomes due and is not paid, the insolvency resolution process begins. Default is defined in Section 3(12) in very wide terms as meaning non-payment of a debt once it becomes due and payable, which includes non-payment of even part thereof or an instalment amount. For the meaning of "debt", we have to go to Section 3(11), which in turn tells us that a debt means a liability of obligation in respect of a "claim" and for the meaning of "claim", we have to go back to Section 3(6) which defines "claim" to mean a right to payment even if it is disputed. The Code gets triggered the moment default is of rupees one lakh or more (Section 4). The corporate insolvency resol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... particulars of the financial debt in part IV and documents, records and evidence of default in part V. Under Rule 4(3), the applicant is to dispatch a copy of the application filed with the adjudicating authority by registered post or speed post to the registered office of the corporate debtor. The speed, within which the adjudicating authority is to ascertain the existence of a default from the records of the information utility or on the basis of evidence furnished by the financial creditor, is important. This it must do within 14 days of the receipt of the application. It is at the stage of Section 7(5), where the adjudicating authority is to be satisfied that a default has occurred, that the corporate debtor is entitled to point out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s who are allottees under a real estate project, an application for initiating corporate insolvency resolution process against the corporate debtor shall be filed jointly by not less than one hundred of such allottees under the same real estate project or not less than ten per cent. of the total number of such allottees under the same real estate project, whichever is less: Provided also that where an application for initiating the corporate insolvency resolution process against a corporate debtor has been filed by a financial creditor referred to in the first or second provisos and has not been admitted by the Adjudicating Authority before the commencement of the Insolvency and Bankruptcy Code (Amendment) Ordinance, 2019, such applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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