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TMI Blog2021 (3) TMI 993X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration to the Respondent. The Petitioner has not furnished any details in respect of Corporate Debtor with regard to its insolvency. The Petitioner has failed to make out any case so as to initiate CIRP in respect of the Corporate Debtor. The Petition is filed on misconceived facts and Law. Petition dismissed. - C. P. (IB) No. 114/BB/2020 - - - Dated:- 16-3-2021 - Rajeswara Rao Vittanala, Member (J) And Ashutosh Chandra, Member (T) For the Appellant : C.K. Nandakumar For the Respondents : M.V.V. Ramana ORDER Per Rajeswara Rao Vittanala, Member (J) 1. C.P.(IB) No. 114/BB/2020 is filed by M/s. IPSA Credit Pvt. Ltd. U/s. 7 of IBC, 2016, R/w Rule 4 of I B (AAA) Rules, 2016, by inter alia seeking to initiate Corporate Insolvency Resolution Process (CIRP) in respect of M/s. Eternity Structures Private Limited on the ground that it has committed default for an amount of ₹ 50,00,000/- (Rupees Fifty Lakhs only) excluding interest @ 24% p.a. 2. Brief facts of the case, as mentioned in the Company Petition, which are relevant to the issue in question, are as follows: (1) M/s. IPSA Credit Pvt. Ltd. (hereinafter referred as Petitioner/Financ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 sq. ft. of undivided share in the immovable property bearing Sy. No. 34/4B for the residential apartment No. 410, third floor, measuring 1080 sq. ft. in 'Eternity Ecstasy'. An advance amount of ₹ 5,00,000 out of the total consideration of ₹ 23,10,000/-. v. Registered Agreement for sale dated 07.05.2016 in respect to 408 sq. ft. of undivided share in the immovable property bearing Sy. No. 34/4B for the residential apartment No. 305, second floor, measuring 1025 sq. ft. in 'Eternity Ecstasy'. An advance amount of ₹ 5,00,000 out of the total consideration of ₹ 22,00,000. vi. Registered Agreement for sale dated 07.05.2016 in respect to 424 sq. ft. of undivided share in the immovable property bearing Sy. No. 34/4B for the residential apartment No. 113, ground floor, measuring 1065 sq. ft. in 'Eternity Ecstasy'. An advance amount of ₹ 5,00,000 out of the total consideration of ₹ 22,80,000/-. vii. Registered Agreement for sale dated 07.05.2016 in respect to 408 sq. ft. of undivided share in the immovable property bearing Sy. No. 34/4B for the residential apartment No. 205, first floor, measuring 1025 sq. ft. in & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Code. (6) The cause of action arose on 07.05.2017, when the apartments were to be handed over under the Agreements, after extension of time was provided to the Respondent. Therefore, the instant Petition is within limitation. Therefore, the CIRP be initiated against the Corporate Debtor. 3. Heard Shri C.K. Nandakumar, learned Counsel for the Petitioner, through Video Conference, and none appeared for the Respondent, even though notice has been served. We have carefully perused the pleadings of the Party and extant provisions of the Code and the Rules made thereunder and the Law on the issue. 4. The case was listed for admission on various dates viz., 08.06.2020, 22.06.2020, 10.07.2020, 26.08.2020, 14.09.2020 and on 23.02.2021. Accordingly, the Adjudicating Authority ordered notice to the Respondent on 08.06.2020 and 10.07.2020. Further, the Petitioner has served the notice on the Respondent by email on 15.02.2021, personal notice on 18.02.2021 and also through RPAD and filed proof of service on 19.02.2021. Though Counsel filed vakalat for the Respondent, none appeared for the Respondent and no reply has been filed. 5. As states supra, the Petition is filed basing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r essential items of the construction and also subject to unforeseen circumstances like act of God, Earth Quake, flood, war or other civil commotion, local disturbances, change in laws of the State, Corporation or any other clauses or events beyond the control of the VENDOR/DEVELOPER. In such an event, the VENDOR/DEVELOPER shall complete and deliver vacant possession of the Schedule 'C' Apartment to the PURCHASER/PURCHASER within such reasonable extended period as may be agreed between the PARTIES. The PURCHASER shall not lay any claim if the delay is beyond the control of the VENDOR/DEVELOPER. 7. The Purchaser shall take possession of the Schedule 'C' Apartment within fifteen days after notice is given by the VENDOR to the PURCHAER the Schedule 'C' Apartment is ready for use and occupation in the manner stated supra (time being essence of the contract in that behalf) and the PURCHASER shall be liable to bear and pay all the taxes and charges including for electricity, water and other common services and the outgoings payable in respect of the said Schedule 'C' Apartment........ 9. Subject to the PURCHASER/S fulfilling the terms and conditi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one has entered into similar Agreements of Sale for all 10 apartments, and now claim that it should be treated as 10 individual home buyers so as to fulfill the requisite conditions prescribed under the provisions of Code, which is not tenable. And the instant Petition is admittedly filed with an intention to recover advance amount paid, as it has no right to demand to deliver possession of Apartments without paying remaining consideration. One of conditions in the said Agreement of Sale is Subject to the Purchaser/s fulfilling the terms and conditions of this Agreement of Sale of Undivided Land and the Construction Agreement even date, the DEVELOPER shall execute the Sale Date fulfilling the terms of the Construction Agreement and against the payment of all dues to the VENDOR/DEVELOPER. And the Petitioner admittedly has not fulfilled terms of conditions of Agreements of sale so as to claim handover of apartments in question. Therefore, only point for consideration is whether the Petitioner is entitled for refund of advance amount or not, for which provisions of Code cannot be invoked. 7. For the aforesaid reasons and circumstances of the case, we are of the considered opinion t ..... 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