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TMI Blog2021 (3) TMI 297X X X X Extracts X X X X X X X X Extracts X X X X ..... he respondent-company is in Jaipur, this Tribunal has territorial jurisdiction and is the Adjudicating Authority in relation to the prayer for initiation of the corporate insolvency resolution process in respect of the respondent/corporate debtor under sub-section (1) of section 60 of the Code. 3. It is the case of the applicant that he executed a Space Buyer Agreement dated April 25, 2011 with the respondent/corporate debtor for purchase of commercial space for a cumulative consideration of Rs. 11,21,50,000 which was to form part of a five star hotel project, which would be constructed by the respondent in the revenue estate of Gwalpahiri, District Gurgaon. It is stated that the agreement between parties was for sale of third and fourth floors in the real estate project called "Space" of the Prism Commercial Tower in the complex of a five-star hotel. Subsequently, on November 28, 2013 a supplemental and amendatory agreement was entered into between the parties. 4. It is submitted that as per the agreement it was agreed between the parties that if the construction was not complete within 36 months from the date of the agreement, the applicant would be entitled to receive rent of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present application filed under section 7 of the Code for initiation of CIRP in respect of respondent, the present applicant has to satisfy that it comes within the definition of "financial creditor". 10. Besides in the reply and written submission, one of the main objections raised by the respondent is that the applicant does not come under the definition of "financial creditor" and the debt claimed is not a "financial debt". 11. The expressions "financial creditor" and "financial debt" have been defined in section 5(7) and (8) of the Code. Clause (8) of section 5 of the Code has been amended by the Insolvency and Bankruptcy (Second Amendment) Act, 2018 with effect from June 6, 2018. In view of the Explanation inserted in the revised definition, it has been abundantly made clear that any amount raised from an allottee under a real estate project shall be deemed to be an amount having the commercial effect of borrowing and thus will come within the definition of "financial debt" under the Code. Definition of "financial debt" has been amended to remove any cloud and to specifically include dues of the real estate buyers. The Amendment Act leaves no doubt that real estate buyer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e for initiation of CIRP has been filed by the applicant/financial creditor in form 1 in terms of rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 accompanied with required information, documents and records as prescribed under the Rules. 18. The applicant/financial creditor has proposed the name of Mr. Deepak Arora, for appointment as interim resolution professional ("IRP") with registration number IBBI/IPA-002/IP-N00122/2017-18/10291, with e-mail id [email protected]. Mr. Deepak Arora has agreed to accept the appointment as the IRP and has signed form 2 in terms of rule 9(1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. 19. The next question raised for consideration is whether the respondent/ corporate debtor has committed default in payment of the financial debt ? 20. In this regard it is seen that the applicant has furnished details/receipts given by the respondent and copy of agreements executed between the parties, in support of disbursement of amount to the respondent/corporate debtor. 21. It is also appropriate to mention here that under section 18 of the Real Estate (Regulation and Deve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able period has since lapsed, the possession of the space has not been given to the applicant. Even the principal amount disbursed has not been repaid by the respondent/corporate debtor. It is accordingly reiterated that respondent/corporate debtor has committed default in repayment of the outstanding financial debt which exceeds the statutory limit of Rs. 1,00,000. Besides it is also seen that the application filed in form 1 under section 7 of the Code read with rule 4 of the Rules is complete and there is no infirmity in the same. 27. As a consequence of the above discussion and in terms of section 7(5)(a) of the Code, the present application is admitted. It is seen that I. A. No. 270/JPR/2019 had been filed vide diary No. 1688 of 2019 dated August 28, 2019 seeking early hearing in the main matter. Upon disposal of the main case, this IA has become infructuous. Accordingly, I. A. No. 270 is disposed of. 28. Mr. Deepak Arora, with registration number IBBI/IPA-002/IPN00122/ 2017-18/10291, and e-mail id [email protected] is appointed as the interim resolution professional. 29. We direct the applicant/financial creditor to deposit a sum of Rs. 2,00,000 with the IRP to meet out th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of section 14(3)(b) of the Code. 33. The IRP shall perform all his functions contemplated, inter alia, under sections 15, 17, 18, 19, 20 and 21 of the Code, and transact proceedings with utmost dedication, honesty and strictly in accordance with the provisions of the Code, Rules and Regulations. It is further made clear that all the personnel connected with the corporate debtor, its promoters or any other person associated with the management of the corporate debtor are under legal obligation under section 19 of the Code to extend every assistance and co-operation to the interim resolution professional as may be required by him in managing the day-to-day affairs of the "corporate debtor". In case there is any violation committed by the ex-management or any tainted/illegal transaction by ex-directors or anyone else, the interim resolution professional would be at liberty to make appropriate application to this Tribunal with a prayer for passing an appropriate order. The interim resolution professional shall be under duty to protect and preserve the value of the property of the "corporate debtor" as a part of its obligation imposed by section 20 of the Code and perform all his fun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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