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TMI Blog2019 (9) TMI 1456X X X X Extracts X X X X X X X X Extracts X X X X ..... which is also admitted by CD, however, wants to consider exclusion of time of delay as beyond its control, which plea cannot be entertained. It is required to be kept in mind by this Tribunal the recent pronouncement made by the Hon'ble Supreme Court of India in the matter of Pioneer Land Infrastructure Ltd. another Vs. Union of India and others [ 2019 (8) TMI 532 - SUPREME COURT ], wherein the Hon'ble Supreme Court after considering several objections raised by the Real Estate Developers as to whether a Home Buyer can be considered as an FC, has categorically come to the conclusion that Home Buyers can be considered as FCs, both prior to as well as subsequent to the amendment of Sec. 5(8) (f) of IBC 2016 by Amendment Act of 2018 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 evident from Part III of the petition. 2. As per Petitioners/Financial Creditors the dates of disbursal in relation to each of the Petitioners as evident from Part-IV of the petition, in relation to the flats booked by the Petitioners has come before this Tribunal as Home Buyers/Financial Creditors (FCs) falling under Sec. 5(8) (f) of IBC 2016. In relation to each of the Financial Creditor (FC), the Principal amount due as well as outstanding compensation claims for delays (Rs.) are as under :- Financial Creditor Total Due Principal Outstanding Compensation FC-1 1,3693,603 80,10,570 56,83,033 FC-2 1,70,76,950 88,76,053 82,00897 FC-3 1,58,98,043 93,95,776 65,02,267 3. It is averred in Part -IV of the petition that all the above stated 3 FC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in handing over possession, the Petitioner (FC-1), it is stated had issued an e-mail dated 24.4.2019 intimating about the termination of the Agreement in terms of Clause 4,2 of the apartment buyers agreement as well as in terms of Clause 6.4 and demanded the refund of the entire principal amount along with interest @15%, failing which will initiate legal action. Pursuant to the same, the petition has been filed before this Tribunal on the plea that a 'default' has been committed by the CD in refunding the money and in the circumstances the principal amount along with compensation, the details of which have been given in the tabulation as above being the claim amount and for the initiation of the Corporate Insolvency Resolution Proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of termination in the year 2019. 8. On the part of CD, the Counsel for the CD submits and brings to the notice of this Tribunal and referred to in Clause 2.6, 6.2 and 6.4 of the Buyer's Agreement and contended that the termination letter which has been issued by the FC cannot be sustained legally. In the circumstances, the possession of the flats having already been offered in the year 2017 itself, there is no question of any default on the part of the CD as contemplated under the provisions of IBC, 2016. 9. Going into the merits of this petition, it is required to be kept in mind by this Tribunal the recent pronouncement made by the Hon'ble Supreme Court of India in the matter of Pioneer Land Infrastructure Ltd. another Vs. Union o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eement and also the refund of the principal amount and compensation as provided under the agreement in case of its breach. 11. Thus we are not in a position to appreciate the technical objection taken by the CD in stating that a different clause has been invoked which should not have been invoked in the first place by the FC. The issue is not in relation to invocation of a clause, whether it is right or wrong what is material is that either a default has occurred on the part of the CD which has made the FC to issue Notice of Termination and seek for refund of the principal amount as well as agreed compensation from the CD. 12. From the facts, it is clearly evident that even after the offer of possession made in the year 2017 by the CD effec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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