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TMI Blog2019 (6) TMI 1566X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. The registered office of the respondent corporate debtor is situated at 1201 B, 12th Floor, Hemkunt Chamber, 89, Nehru Place, New Delhi-110019. 3. The Financial Creditor has proposed the name of Resolution Professional, Mr. Arun Jain with the address Vila No. 34, Block 4, 2nd Floor, Eros Garden, Charmwood Village, Faridabad-121009 and email id - [email protected]. His registration number is IBBI/IPA-01/IP-P00590/2017-18/11029. He has filed his written communication which satisfies the requirement of Rule 9(1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 along with the certificate of registration. 4. The precise case of the Petitioner is that he has entered into an Assured Return Agreement dated 03.11.2010 with the Respondent for purchase of IT Space admeasuring 1000 sq. ft. super area on the 4th floor in the complex under the project namely "India Business Centre" which was proposed to be constructed by the Respondent. The petitioner has paid a total amount of Rs. 40,00,000/- in two tranches (Rs. 16,00,000/- on 27.10.2010 & Rs. 24,00,000/- on 29.10.2010). The relevant term dealing with the payment of 'Assured Return' from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed us to a judgment of the learned Single Judge of the High Court of Bombay reported, in (2018) 2 AIR Bom R 350 in PSL Limited vs. Jotun India Private Limited. The Learned Single Judge, after referring to the self-same provisions of the Code and subordinate legislation made thereunder, held as follows:- "93. The fact that post notice winding up petitions continue to be governed by the Companies Act, 1956, only means - that to those proceedings it will be the Companies Act, 1956 which will apply. It does not, however, mean that if, in a post-notice winding up petition a new proceeding is filed under IBC, and where orders are passed by NCLT, including under Section 14 of IBC, the consequences provided for under IBC will not apply to post notice proceeding, whatever their stage may be. XXX XXX XXX 98. Furthermore, this transitional provision cannot in any way affect the remedies available to a person under IBC, vis-a-vis the company against whom a winding up petition is filed and retained in the High Court, as the same would amount to treating IBC as if it did not exist on the statute book and would deprive persons of the benefit of the new legislation. This is contrary to the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estate project is deemed to be an amount having the commercial effect of a borrowing and thus is covered by the definition of 'Financial Debt' under the Code. Definition of 'Financial Debt' has also been amended to specifically include dues of home buyers i.e. Real Estate (Residential). The amendment also recognizes home buyers as "Financial Creditor". Accordingly, the home buyers can initiate Corporate Insolvency Resolution Process against defaulting builder or developer, as "Financial Creditor" in terms of Explanation to Section 5(8)(f) of the Code with effect from 06.06.2018. Therefore, the submission made to the contrary by respondent would not require any serious consideration. 13. It is pertinent to mention that on 03.11.2010 an Assured Return Agreement was executed between the Petitioner & Corporate Debtor whereby the petitioner was allotted by ear marking IT Space admeasuring 1000 sq. ft. super area on the 4th floor in the complex under the aforesaid project of the Corporate Debtor. In the light of the said agreement, the petitioner has paid the total amount of Rs. 40,00,000/- to the Corporate Debtor in two tranches. According to the terms of the agreement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 4 (1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 read with Section 7 (2) of IBC is complete in all respects. He has further submitted that the details of the default along with the dates have been stated in part IV and the additional documents have been submitted subsequently along with all the minute details. There is overwhelming evidence available to prove default and name of the resolution professional has been specified who does not suffer from any disqualification. 17. Under sub-section 5(a) of section 7 of the code, the petition filed by the petitioner financial creditor has to be admitted on satisfaction that: (i) Default has occurred; (ii) Application is complete, and (iii) No disciplinary proceeding against the proposed IRP is pending. 18. After a conjoint reading of the aforesaid provision along with Rule 4 (2) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, we are satisfied that a default has occurred and the petition under sub section 2 of Section 7 is complete. 19. As a sequel to the aforesaid discussion and the material placed on record it is clear that applicant-financial cre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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