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TMI Blog2019 (12) TMI 1414X X X X Extracts X X X X X X X X Extracts X X X X ..... 8377; 16,00,000 and it is in opinion of this Hon'ble Tribunal that no dispute was raised by the Corporate Debtor with respect to the amount of ₹ 17,08,750/- to the Financial Creditor hence, the contention of the Corporate Debtor to not handover the possession of the said units of the project holds no legal ground. Petition admitted. - (IB) 1051 (ND)/2019 - - - Dated:- 9-12-2019 - Rajesh Dayal Khare, Member (J) and Sumita Purkayastha, Member (T) For the Appellant : Vibhav Tyagi, Advocate For the Respondents : Manoj K. Srivastava and Nishant Verma, Advs. ORDER SUMITA PURKAYASTHA, MEMBER (T) 1. The present petition has been filed under Section 7 of the Insolvency Bankruptcy Code, 2016, (hereinafter referred to as the Code ), praying for initiation of Corporate Insolvency Resolution Process of the Respondent/Corporate Debtor on grounds of its inability to liquidate its financial debt. 2. As per the averments made by the Financial Creditors No. 1 the total amount of default committed by the Corporate Debtor is ₹ 25,60,000/- as on February 2019. The Corporate Debtor had in the month of June, 2015 launched its project for residential ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by it. 4. As per the averments made by the Financial Creditor No. 2 the total Amount of default committed by the Corporate Debtor is ₹ 25,60,000/-as on February, 2019. The Financial Creditor No. 2 expressed its intention the purchase a unit in the said Marvella City Project and made the booking in the said Unit. That the Financial Creditor had paid a total amount of ₹ 16,00,000/- to the Corporate Debtor till date. The details of some receipts are being produced below: Receipt No Amount (Rs. ) PRO-2711 2,00,000 PRO-2713 6,00,000 5. That the Corporate Debtor and the Financial Creditor had entered into a Builder Buyer Agreement dated 01.08.2017 in terms of which the Corporate Debtor was liable to provide possession of the said unit to the Financial Creditor No, 2 by December, 2018. That the Corporate Debtor and the Financial Creditor No. 2 also entered into a Memorandum of Understanding dated 01.08.2017, in terms of which the Corporate Debtor was liable to pay the Financial Creditor an amount of ₹ 48,000/- (Rupees Forty Wight Thousand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PRO-2705 6,00,000 PRO-2704 2,70,000 9. The Corporate Debtor and the Financial Creditor No. 3 entered into a Builder Buyer Agreement dated 01.08.2017. The Corporate Debtor and the Financial Creditor No. 3 had also entered into a Memorandum of Understanding dated 01.08.2017, in terms of which the Corporate Debtor was liable to pay the Financial Creditor an amount of ₹ 48,000/- (Rupees Forty Eight Thousand Only) per month till the date of registry of the subject unit in the name of the Financial Creditor No. 3. The Corporate Debtor had even issued certain PDCs in favour of the Financial Creditor No. 3 for the assured return but the same has been dishonored. 10. The Financial Creditor No. 3 approached the Corporate Debtor for the repayment of Assured Return but till date the Corporate Debtor has failed to return the said amount to the Financial Creditor No. 3. The Financial Creditor No. 3 even issued a Legal Notice dated 22.09.2018 calling upon the Corporate Debtor to repay the said amount of assured return but the Corporate Debtor has failed to make the said payment. The Corporate Debtor had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Financial Creditor No. 4 and 5. 14. The Corporate Debtor had even issued certain PDC's in the favour of the Financial Creditor No. 4 and 5 for the assured return but the same has been dishonoured. That the Financial Creditor No. 4 and 5 approached the Corporate Debtor for the repayment of Assured Return but till date the Corporate Debtor has failed to return the said amount to the Financial Creditor No. 4 and 5. That the Financial Creditor No. 4 and 5 even issued a Legal Notice dated 22.09.2018 calling upon the Corporate Debtor to repay the said amount of assured return but the Corporate Debtor has failed to make the said payment. The Corporate Debtor had assured possession of the said unit by December 2018 but despite lapse of the said periods, the Corporate Debtor had failed to provide possession of the said unit. Aggrieved the Financial Creditor No. 4 and 5 sent a communication dated 14.02.2019 demanding refund of the total outstanding amount payable by it. 15. As per the averments made by the Financial Creditor No. 6 the total Amount of default committed by the Corporate Debtor is ₹ 25,60,000/- as on February, 2019. The Financial Creditor No. 6 expressed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s ₹ 27,00,000/- as on February, 2019. The Financial Creditor No. 7 8 expressed its intention to purchase a unit in the said Marvella City Project and made the booking in the said unit. The Financial Creditor has paid a total amount of ₹ 17,40,000/- (Rupees Seventeen Lakhs Forty Thousand Only) to the Corporate Debtor till date. The details of the receipts are being produced below: Receipt No. Amount (Rs. ) PRO-2710 6,00,000/-, PRO-2718 6,00,000/- PRO-2709 1,35,000/- PRO-2717 1,35,000/- PRO-2708 1,35,000/- PRO-2716 1,35,000/- 19. The Corporate Debtor and the Financial Creditor No. 7 8 entered into a Builder Buyer Agreement dated 01.08.2017. The Corporate Debtor and the Financial Creditor No. 7 8 had also entered into a Memorandum of Understanding dated 01.08.2017, in terms of which the Corporate Debtor was liable to pay the Financial Creditor an amount of ₹ 48,000/- (Rupees Forty Eig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to return the said amount to the Financial Creditor No. 9 10. The Financial Creditor No. 9 10 even issued a Legal Notice dated 22.09.2018 calling upon the Corporate Debtor to repay the said amount of assured return but the Corporate Debtor has failed to make the said payment. The Corporate Debtor had assured possession of the said unit by December, 2018 but despite lapse of the said period, the Corporate Debtor has failed to provide possession of the said unit. Aggrieved, the Financial Creditor No. 9 10 sent a communication dated 14.02.2019 demanding refund of the total oustanding amount payable by it. 24. The Respondent- Corporate Debtor has filed its reply and has asserted the following contentions: i. The Petitioner has not filed the present petition in correct form and format and has not filed relevant and necessary documents along with the present petition. The Corporate Debtor further states that the amount of Debt as claimed by the Petitioners is highly exaggerated. The assured return as claimed by the Petitioner in the petition is miscalculated and not as per the Agreed MOU executed between the parties. ii. The Application filed by the Petitioner is not prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the flats developed by the Corporate Debtor a consideration of ₹ 17,08,750 as stipulated in the Flexi Payment Plan as per Clause 4 of the Buyer Builders Agreement but contra, the Financial Creditor tendered mere ₹ 16,00,000 in totality and Ipso Facto the Corporate Debtor refused to deliver the possession of the flats for a want of total amount due ₹ 17,08,750. However, the perusal of records show it was an agreed term between the Financial Creditors and the Corporate Debtor vide the Memorandum of Understanding dated 01.08.2017 that the concerned units of the project shall be allotted to the Financial Creditor on payment of ₹ 16,00,000 and it is in opinion of this Hon'ble Tribunal that no dispute was raised by the Corporate Debtor with respect to the amount of ₹ 17,08,750/- to the Financial Creditor hence, the contention of the Corporate Debtor to not handover the possession of the said units of the project holds no legal ground. In Sunil Handa Ors. V. Today Homes Noida India Ltd. CP. No. (IB) 923/PB/2018 it was held that in such construction contracts time is the essence of the contract and the Builder cannot evade its obligations in terms of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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