9911796707
TMI Blog2020 (10) TMI 160X X X X Extracts X X X X X X X X Extracts X X X X ..... itor namely Anumati Consultancy & Services Private Limited to initiate Corporate Insolvency Resolution Process against Corporate Debtor namely Wellside Global Private Limited as the Corporate Debtor has committed default in payment of outstanding debt. The amount claimed to be in default is Rs. 66,81,20,672/-comprising of principal amount of Rs. 14,06,70,000/- and accrued interest @ 18% per annum from the date of payment of such sum. 2. The facts, in brief, are that the Financial Creditor paid a sum of Rs. 13,50,00,000/-in 2010 to the Corporate Debtor for purchase of a commercial property which was to be built by Corporate Debtor. Letter of Intent ("LOI") was also executed for availability of commercial space on lease rental for the use of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat in 2017 stay was imposed and till date no progress had happened, hence, the Corporate Debtor was not in a position to meet its contractual obligations and, therefore, the Financial Creditor was left with no other choice but to repudiate the contract and demand the money back which had been given by Financial Creditor to the Corporate Debtor, along with interest. He drew our attention to page no.81 to 84 of the Paper Book containing copies of notice/termination letter dated 27th April, 2019 given by its Advocates wherein it had been clearly mentioned that the Corporate Debtor was apparently not in a position to perform its obligation undertaken under the Purchase Agreements and hand over the possession of Units purchased by the Financial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not due and payable as on the date of filing of this petition and even on the date of hearing of petition for the reason that as per the provisions of clause 4.3, Corporate Debtor had a total period of 54 months from the date of signing of the agreement to hand over possession of the said units which was expiring in May, 2020. Thus, it could not be said a default had occurred as on date and, therefore, this petition was liable to be dismissed for this reason alone. 6. Thereafter, the Ld. Senior Counsel submitted that interest calculated by the Financial Creditor was against the contractual terms. It was vehemently argued that, in fact, no interest was payable on the repayment/refund of amount as per the provisions of clause 9.1(i)(a) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate hereof with a grace period of 6 (six) months thereafter, the First Party No.2 will subject to and without prejudice to the provisions of this Agreement endeavour to hand over to the Second Party the bare shell of the Said Unit; being in an incomplete state and condition, constructed in the limited manner and in accordance with the specifications detailed in the Sixth Schedule hereunder witten ("Specifications"). Article IX: Termination of the Agreement and consequences thereof 9.1 Depending on the date of termination of this Agreement by the Second Party and/or the First Party No.2, as the case may be in terms hereof, the under-noted amounts shall, without any further act, deed or thing by the First Party No.2 an/or the Second Party s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 7 of IBC, 2016. It is also an undisputed fact in the present case that the buyer in question (Financial Creditor) is the only buyer, hence, provisions of section 7 as amended by recent Ordinance do not come in way as regard the maintainability of this petition. 11. In the background of above facts, when we look at the scheme of the IBC, 2016, the preliminary condition is that there must be a debt which is met. The second condition is, such debt must be due and payable. In regard to this, as apparent from the provisions of clause 4.3 of Article IV of the Agreement between the parties as mentioned herein above, it is established that the delivery of the said flats has to be given upto May, 2020. Having said so, if we accept the conte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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