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TMI Blog2020 (10) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... us it cannot be disturbed by way of initiating proceedings under the provisions of Code. It would be just and proper to dispose of the instant Petition by directing the Corporate Debtor to handover the possession of the Apartment in question to the Petitioners, immediately on its completion - petition is hereby disposed of by directing the Corporate Debtor to handover the possession of the Apartment in question, on its completion, to the Petitioners, as committed by it. - C.P.(IB) No. 408/BB/2019 - - - Dated:- 16-6-2020 - Rajeswara Rao Vittanala, Member (J) And Ashutosh Chandra, Member (T) For the Appellant/Respondent : Ashwin R.A. and Akhila ORDER RAJESWARA RAO VITTANALA, MEMBER (J) 1. C.P (IB) No. 408/BB/2019 is filed by Mrs. Tanuja Venu Nadhan Pillai and another(hereinafter referred to as 'Petitioner/Financial Creditor) U/s 7 of the IBC, 2016, R/w Rule 4 of the I B (Application to Adjudicating Authority) Rules, 2016, by inter alia seeking to initiate Corporate Insolvency Resolution Process (CIRP) in respect of M/s. Value Designbuild Private Limited (hereinafter referred to as Respondent/Corporate Debtor) on the ground, that it has committed defau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve said total agreed sale consideration, the Financial Creditor on the date of execution of the above said Agreements paid a sum of ₹ 15,24,001/- (Rupees Fifteen Lakhs Twenty Four Thousand and One only) paid an advance sale consideration. These monies were paid to the Corporate Debtor herein, the Developer and the same has been duly acknowledged. (4) It is contended that the Respondent promised that the schedule property would be developed, constructed as per the agreed specifications and delivered to the Financial Creditor within March 2017 with a grace period of six months. The Financial Creditors made every effort to ensure prompt payments in respect of the agreed sale consideration. The Corporate Debtor are fully aware that the Financial Creditors together with the Corporate Debtor had entered into a Tripartite Agreement dated 25.02.2016 with a Financial institution, namely Housing Development Finance Corporations Ltd (HDFC) where under the Financial Creditor in order to purchase the schedule property, had borrowed a sum of ₹ 1,19,89,890/-. Under the said Tripartite Agreement, the Corporate Debtor herein has once again promised to construct, develop and deliver t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Provided further that for Financial Creditors 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 application shall be modified to comply with the requirements of the first or second provisions 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. (2) The Real estate project, under which the Petitioners are claiming to be financial Creditors i.e. VDB Azure, consists of 108 flats and presently 39 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioners were required to pay ₹ 56,74,000/- (Rupees Fifty Six Lakhs Seventy Four Thousand Only). The Petitioners were required to pay the Corporate Debtor in the following manner: Sl. No. MILESTONE AMOUNT (In Rs. ) 1. On Completion of 9th Floor Slab 28,56,410/- 2. On Completion of 11th Floor Slab 7,88,617/- 3. On Completion of Block Work 6,57,180/- 4. On Completion of Apartment Flooring 13,71,793/- TOTAL 56,74,000/- The Petitioners were liable to pay the Corporate Debtor and the owners a total sum of ₹ 1,27,25,200/- (Rupees One Crore Twenty Seven Lakhs Twenty Five Thousand and Two Hundred Only) for purchase of the Apartment. (5) The Petitioners further entered into a Tripartite Agreement dated 25.02.2016 with the Corporate Debtor and Housing Development Finance Corporation Limited (HDFC) to raise funds for purchase of the Apartment. The Petitioners have obta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , as and when the project is completed, provided the Petitioners service their loan to HDFC. The construction of project is being carried out in full swing and the same will be completed in 8-10 months. 4. Heard Shri. Ashwin. R.A, learned Counsel for the Petitioner, and Ms. Akhila, learned Counsel for the Respondent, through Video Conference, We have carefully perused the pleadings of the Parties, and the extant provisions of the Code, the Rules made there under, and the law on the issue. 5. Ms. Akhila, the learned Counsel for the Respondent, after arguing the case, has also filed a Memo dated 11.06.2020 by inter-alia contending as follows: (1) The Corporate Debtor ultimately came out of the clutches of the Code, by virtue of order of withdrawal dated 17.07.2019 passed by this Tribunal in CP (IB) No. 46/BB/2018, and the Appeal against it was dismissed by the Hon'ble NCLAT, New Delhi, on 16.10.2019. In the meanwhile, the Corporate Debtor contacted various contractors for the purpose of re-staring the construction work. In the month of October, 2019, the Corporate Debtor has issued a work order to M/s. Transatlantic Infra projects Pvt Ltd. For the purpose of execution of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioners, they have invoked the provisions of Code, instead of filing suit for Specific Performance or to invoke Arbitration to resolve the dispute in question. As rightly contended by the Respondent, the instant Petition is also not maintainable, as the Petitioners failed to fulfil the conditions prescribed under Amendment to Section 7 of Code, as stated supra. 7. The facts, as narrated by the Parties in the Petition, it establishes that the instant Petition is filed to recover the sale consideration rather than to initiate CIRP in terms of provisions of Code. In terms of Agreements in question, the Petitioners are entitled for delivery of Apartment in question, within stipulated period, however, subject to justifiably delay. The Respondent have satisfactorily explained the reasons for delay in completion of Projects. Since the Respondent has expressed its readiness to deliver the Apartment in question, on expeditious basis, on par with other similarly situated Parties, the Petitioners are not entitled to seek initiation of CIRP against Corporate Debtor. The Petition itself is misconceived. The Adjudicating Authority is not recovery forum, and the Corporate Debtor is still a g ..... X X X X Extracts X X X X X X X X Extracts X X X X
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