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TMI Blog2019 (10) TMI 1350X X X X Extracts X X X X X X X X Extracts X X X X ..... 13.08.2014, wherein the petitioners agreed to buy a residential flat measuring 387.57 sq. mts., carpet area being No. 301 situated on the 3rd and 4th floors, E wing of the Complex known as "Marvel Ganga Sangria" under construction of the Corporate Debtor for Rs. 3,00,20,000/-. The Petitioner availed loan from Bajaj Finance to part finance the transaction along with payments from his proprietary concern named V. D. Logistics. 3. On 21.01.2019, the Petitioner issued demand notice upon the Corporate Debtor and the same is extracted below: "We have purchased flat at Marvel Ganga Sangaria, Flat No. 301 of E Building located at S. No. 21 - Mohmmand Wadi, Pune. As per agreement, till date we have paid Rs. 2,68,04,228/- to you against above flat. As per agreement terms, we should have got possession of our flat by 31st December 2013, but till date we have not got possession. After several follow up calls, meetings, communication, we were assured that we will get possession of our flat by 15th may, 2015. But, even after four years, we are yet to receive possession of the flat as well as compensation for delay in giving possession of the said flat. There has been delay of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... porate Debtor submitted that they have applied for completion certificate on 23.01.2017 but the same was granted by concerned authority on 13.04.2018. (c) The Corporate Debtor submitted that they have paid an amount of Rs. 15,00,000/- on 15.12.2018 to the Petitioner as compensation for delay in giving possession. The Petitioner has also made an endorsement while receiving the above payment as below: "Partial Compensation received towards delay in giving possession of flat at Marvel Sangria E-301." Since the Petitioner has already accepted and received the compensation albeit partially, for the claim being compensation which is not yet determined, CIRP cannot be initiated for the claim of compensation. (d) The Corporate debtor submitted that a sum of Rs. 1,04,09,381/- is payable by the Petitioner before taking possession of the flat and the same is pending. (e) It is submitted that the Corporate Debtor informed the Petitioner on 17.04.2016 that the Unit is completed and ready for the furniture possession and also they have demanded the sum of Rs. 1,01,57,695/- Hence, the Corporate Debtor says that the property is ready for possession, but the Petitioner h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts and records required therein. Form 1 is a detailed form in 5 parts, which requires particulars of the applicant in Part I, particulars of the corporate debtor in Part II, particulars of the proposed interim resolution professional in Part III, 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 that a default has not occurred in the sense that the "debt", which may also include a disputed claim, is not due. A debt may not be due if it is not payable in law or in fact. The moment the adjudicating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... solution process under the Code has been invoked fraudulently, with malicious intent, or for any purpose other than the resolution of insolvency. This the real estate developer may do by pointing out, for example, that the allottee who has knocked at the doors of the NCLT is a speculative investor and not a person who is genuinely interested in purchasing a flat/apartment. They can also point out that in a real estate market which is falling, the allottee does not, in fact, want to go ahead with its obligation to take possession of the flat/apartment under RERA, but wants to jump ship and really get back, by way of this coercive measure, monies already paid by it. Given the above, it is clear that it is very difficult to accede to the Petitioners' contention that a wholly one-sided and futile hearing will take place before the NCLT by trigger-happy allottees who would be able to ignite the process of removal of the management of the real estate project and/or lead the corporate debtor to its death. 11. Even though the Adjudicating Authority is mandated to look into the debt and default in a Section 7 Petition, the judgment of the Hon'ble Supreme Court in Pioneer Urban Land ..... X X X X Extracts X X X X X X X X Extracts X X X X
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