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TMI Blog2019 (11) TMI 1591X X X X Extracts X X X X X X X X Extracts X X X X ..... ion sent by the corporate debtor to the financial creditors on March 5, 2019 with the request to collect the refund cheque for an amount of ₹ 1,51,34,908. In view of these communications, the application is not barred by limitation - issue decided in favour of the financial creditors and against the corporate debtor. Whether the financial creditors have defaulted in making the payments? - HELD THAT:- On perusal of the record placed on file, the financial creditors have paid an amount of ₹ 2,75,55,186 against the total sale consideration of ₹ 3,80,10,000 against the subject property, which is a substantial payment. However, due to non-performance of the corporate debtor the balance payments were not made by the financial creditors, as the corporate debtor failed to honour the commitment in terms of the agreement, which provides that the possession of the subject property was to be handover to the financial creditors by first week of February 2016. In view of it, the financial creditors cannot be said to be defaulters - the issue stands decided in favour of the financial creditors and against the corporate debtor. Whether other efficacious remedies are available to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 38.83 sq.mts.) in project named Krrish Provence Estate located in Gwal Pahari, Gurgaon, Faridabad Road, Gurgaon (hereinafter referred as subject property). The corporate debtor had issued a letter dated October 25, 2018 whereby the date of the agreement was rectified from August 7, 2011 to August 7, 2012. The subject property was transferred by the original buyers, viz., Mr. Manohar Ahuja and Mr. Om Prakash Ahuja to the financial creditors vide transfer application form dated May 5, 2012. The substitution and credit of ₹ 1,33,86,191 in the name of financial creditors was confirmed by the corporate debtor vide letter dated July 5, 2012. 4. Clause 3.1 of the agreement dated August 7, 2012 provides that the corporate debtor had proposed to hand over the possession of the subject property to the financial creditors within a period of 36 (thirty six) months from the date of commencement of the construction or execution of the agreement, whichever is later. After expiry of the said period the corporate debtor was entitled to a grace period of 180 (one hundred and eighty) days for applying and obtaining the occupation certificate in respect of the project from the concerned authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by not paying the amounts in terms of the agreement, therefore the financial creditors rights were forfeited. Further, it was stated that the financial creditors were liable to pay ₹ 58,93,393.90 inclusive of service tax. Reply of the corporate debtor : 9. The corporate debtor filed its reply on September 18, 2019 and submitted that it does not owe ₹ 6,93,02,755 inclusive of the interest. The corporate debtor has submitted that agreement was entered between the financial creditors and corporate debtor and the transfer application dated May 5, 2012 along with the name substitution was done vide its letter dated July 5, 2012. Further, the corporate debtor submits that it has regularly demanded payments and there has been delays in making the payments on the part of financial creditors. It is stated that time being the essence of the agreement ; the corporate debtor continued the construction even though financial creditors defaulted in making timely payments despite continuous reminders. It is further stated that the corporate debtor exercised its rights to cancel/terminate the agreement and forfeited the booking amount paid by the financial creditors. The corporate debt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accounts dated October 25, 2018 placed on record. 13. On perusal of the pleadings of the parties the issues that arises are follows : (i) Whether the application is time barred ? (ii) Whether the financial creditors have defaulted in making the payments ? (iii) Whether other efficacious remedies are available to the finan cial creditors ? 14. Issue No. 1 : It is noted that various communications have been sent by the corporate debtor to the financial creditors by which the rights and the claims of the financial creditors are confirmed. In this connection, a reference may be made to the communication dated December 20, 2016 sent by the corporate debtor to the financial creditors for deposit of the amount of VAT of ₹ 3,00,615. Further, on December 22, 2016 an e-mail was sent by the corporate debtor to the financial creditors attaching the statement of account for the unit allotted to the financial creditors. There is another communication sent by the corporate debtor to the financial creditors on March 5, 2019 with the request to collect the refund cheque for an amount of ₹ 1,51,34,908. In view of these communications, the application is not barred by limitation. Therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he financial creditors, as the construction work could not be completed within the stipulated time and there is no proof for extension of time by the concerned authority. Therefore, there is debt, due and payable, which the corporate debtor failed to pay. Thus, the default on the part of the corporate debtor is ascertained based on the documentary evidenced placed on record by the financial creditors. 18. In the light of the above, the application of the financial creditors is complete in all respect. The financial creditors have also proposed the name of resolution professional, viz., Mr. Jugraj Singh Bedi after seeking his consent in form 2. There is no disciplinary proceeding pending against the IRP as evidenced from form 2. Therefore, application is admitted and CIRP is initiated against the corporate debtor, which shall ordinarily be completed within 180 days, reckoning from the day this order is passed. The IRP is directed to take charge of the corporate debtor's management immediately. He is directed to cause public announcement as prescribed under section 15 of the I and B Code, 2016, within three days from the date the copy of this order is received, and call for submi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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