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TMI Blog2019 (2) TMI 1849X X X X Extracts X X X X X X X X Extracts X X X X ..... construction, approval from the Fire Department, in terms of Section 15 of the Haryana Fire Safety Act, 2009 was material for the fulfilment of the obligations of the Respondent and commencement of construction. Accordingly, the date of handover of possession is to be computed from the date of grant of Fire Safety Approval, i.e. dated 27th November 2014. Before that, the letter for handing over possession was already issued to the Appellant. If the intention of the allottees is only for recovery of the money and not for resolution for possession by apartment, then the Corporate Debtor may bring to the notice of the Adjudicating Authority. Appeal dismissed. - Company Appeal (AT) (Insolvency) No. 1141 of 2019 - - - Dated:- 26-2-2019 - Venugopal M., Judicial Member, Kanthi Narahari And V.P. Singh, Technical Member For the Appellant : Piyush Singh, Aditya Parolia and Ms. Sumbul Ismail Advs. For the Respondent : Saurabh Kalia, Sameer Choudhary and Ms. Saloni Purohit Advs. JUDGMENT V.P. SINGH, TECHNICAL MEMBER 1. This Appeal emanates from the order passed by the Adjudicating Authority/National Company Law Tribunal, New Delhi in C.P. No. IB-10/(ND)/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpugned Order. The Appeal has been filed mainly on the ground as under: (a) The Adjudicating Authority, while rejecting the Application has ignored the fact that the default occurred on 10th July 2017 and the project, i.e. being developed by the Respondent, is still incomplete. (b) The Adjudicating Authority, while rejecting the Application has completely overlooked the well-settled Principle of Law as laid down by Hon'ble Supreme Court in the case of Pioneer Urban Land Infrastructure Ltd. v. Govindan Raghavan in [Civil Appeal No. 12238 of 2018, dated 2-4-2019] that a homebuyer cannot be made to wait for years after the due date of possession and the homebuyer cannot be forced to take possession of the allotted unit if the real estate developer has completely failed to construct the project within the promised period. (c) The Adjudicating Authority has completely ignored the settled Principle of Law laid down by the National Consumer Disputes Redressal Commission in the case of Abhishek Khanna v. Ireo Grace Realtech (P.) Ltd. in [Consumer Complaint No. 3873 of 2017, dated 28-3-2019]. (d) The decision of the Adjudicating Authority that default has not occ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent had fulfilled its obligation in applying for the Occupational Certificate within the time frame and had even offered possession to the Appellant within the stipulated time. It is further contended that the Respondent had completed construction of 1356 Apartments (approximately out of which 700 Apartments in Tower A6 to A10, B1 to B4, C3 to C7, EWS, convenient shopping, two-level basement are ready to move in, and Occupational Certificate for the same has been obtained on 31st May 2019. The notice of possession was given to the Applicant on 14th June 2019, and the possession of units have been offered to 381 allottees, out of which 62 allottees have already taken possession, and some of the allottees are also residing in the said group housing society. 8. The Respondent further contends that as per section 3(12) of the I B Code, no debt was ever due and payable as per section 3(11) of the I B Code. Given the 'Agreement' dated 3rd June 2014, allottees had agreed that the offer for possession for the concerned apartment in terms of provisions of clause 13.3, 13.4, and 13.5 of Agreement. The date of the offer for possession about a unit of the apartment depended on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the authorised representative of the Appellant, states that the money which is due and payable under the Impugned Order of the National Consumer Disputes Redressal Commission to the three purchasers namely, Subodh Pawar, Ritu Bansal and Geeta Bansal shall be refunded within four weeks from today together with interest @ 10% per annum w.e.f. 27th May 2018 until the date of payment. 12. The Appellant also placed reliance on the law laid down by Hon'ble Supreme Court in case of Pioneer Urban Land Infrastructure Ltd. (supra). In this case, it is held that a homebuyer cannot be made to wait for years after the due date of possession and the homebuyer cannot be forced to take possession of the allotted unit if the real estate developer has completely failed to construct the project within the promised period. Learned Counsel for the Appellant further contends that the Occupational Certificate is only for some towers, and not for the project as a whole. Therefore, there is an admitted default of two years by the Respondent. 13. The Counsel for the Appellant further emphasised on the judgement of the in the case of Ireo Grace Realtech (P.) Ltd. (supra). The Corporate Debtor h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application shall be modified to comply with the requirements of the first or second provisos as the case may be within thirty days of the commencement of the said Ordinance, failing which the application shall be deemed to be withdrawn before its admission. 52. The provisos above inserted in sub-section (1) of Section 7 came into force since 28th December 2019 though not applicable in this appeal, the Adjudicating Authority is required to notice the said provisions. 53. Before admitting such case, it will be desirable to find out whether the allottees have come for refund of the money or to get their apartment/flat/premises by way of resolution. If the intention of the allottees only for refund of money and not possession of apartment/flat/premises, then the 'Corporate Debtor' may bring it to the notice of the Adjudicating Authority as held by the Hon'ble Supreme Court. 54. The Adjudicating Authority before admitting an application under section 7 filed by allottee(s) will take into consideration the decision of the Hon'ble Supreme Court in Pioneer Urban Land and Infrastructure Limited Anr. v. Union of India Ors (supra), as noticed in Paragraph 33 o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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