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TMI Blog2020 (10) TMI 160X X X X Extracts X X X X X X X X Extracts X X X X ..... g said so, if we accept the contentions of the Financial Creditor that it may not be possible owing to prohibition on construction due to violation of sanction plan, hence, debt should be considered due and payable particularly when the Financial Creditor has repudiated the contract. This is particularly in the background of the fact that Financial Creditor does not wish to give effect to the provisions of the contract in toto i.e., if, based upon termination notice, the amount is considered as due and payable, then, obviously clause 9.1(i) of Article IX of the Agreement shall come into play. Hence, based upon the above proposition, it cannot be said that debt becomes due and payable. This petition is pre-mature at this stage and thus, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect, hence, both the parties entered into an understanding to have the residential units to be built by the Corporate Debtor in lieu of the commercial property equivalent to amount already paid by the Financial Creditor. The Purchase Agreements were entered into between the parties on November 12, 2015. This project was again stopped by Kolkata Municipal Authority on account of violation of sanction plan. Hence, on April 27, 2019, the Financial Creditor terminated the Purchase Agreement and requested the Corporate Debtor to return the entire sum of ₹ 14,06,70,000/- along with interest at the rate of 18% per annum from the date of receipt till the date of payment. Reply was filed by the Corporate Debtor on 30th May, 2019 to which Finan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of liability though such amount was not acceptable to the Financial Creditor. In this regard, he drew our attention to page no. 97 to 100 of the Paper Book. He also relied on the decision of the Hon'ble Supreme Court in the case of Pioneer Urban Land Infrastructure Limited Anr. -vs.- Union of India Ors., reported in (2019) 8 SCC, page 416, and drew our attention to paragraphs 67 68 of the order to contend that the claim of a home buyer was a financial debt and there was a default/breach, hence, the Corporate Debtor was liable to repay the same and failing which initiation of CIRP was the only option. 5. The Ld. Senior Counsel appearing on behalf of the Corporate Debtor contended that the agreements entered into between the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was ready to pay and, in fact, had the draft prepared for that amount. 7. As regards the other contentions made by the Financial Creditor, it was communicated that there was no working behind the back of the Financial Creditor. From time to time, the issues had been duly communicated to them. It was also contended that corrective measures were being contemplated and taken. However, results were not obtained as desired, hence, for that, the no malafide could be attributed to the conduct or intention of the Corporate Debtor. 8. In the rejoinder, the Ld. Senior Counsel emphasised that it was not a case of termination but repudiation of the contract, hence, clauses of the agreement relied on by the Corporate Debtor were not applicable. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cond Party to/with the First Party No.2 and/or any third party as the specific instructions of the First Party No.2 (irrespective of the account towards which such sum may have been paid/deposited by the Second Party), and the balance, if any ascertained by the First Party No.2 as payable by the Second Party to the First Party No.2 shall forthwith and immediately on demand be paid by the Second Party to the First Party No.2:- i) On termination prior to the issuance of the Fit Out Notice: (a) a sum equivalent to 5% (five percent) of the Consideration Amount; and (b) the Interest if any due, accrued and payable by the Second Party as ascertained by the First Party No.2; and (c) the amounts deducted by the Second Party as TDS w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d be considered due and payable particularly when the Financial Creditor has repudiated the contract. This is particularly in the background of the fact that Financial Creditor does not wish to give effect to the provisions of the contract in toto i.e., if, based upon termination notice, the amount is considered as due and payable, then, obviously clause 9.1(i) of Article IX of the Agreement shall come into play. Hence, in our considered view, based upon the above proposition, it cannot be said that debt becomes due and payable. Thus, on this ground itself, we are of the considered opinion that this petition is pre-mature at this stage and thus, not maintainable. In view of this, we do not consider to express any opinion on the other conten ..... X X X X Extracts X X X X X X X X Extracts X X X X
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