9911796707
TMI Blog2021 (5) TMI 582X X X X Extracts X X X X X X X X Extracts X X X X ..... mendment) Ordinance, 2019 dated 28.12.2019 the financial creditors who are homebuyers of Real Estate Project can file a petition under section 7 of the Code, 2016, jointly only if there are 100 of such homebuyers or if they are 10% of total homebuyers whichever is less. However, in the instant petition, only 2 Homebuyers have filed the case which neither amounts to 10% of the total class of financial creditors or 100 Financial Creditors and therefore this petition cannot be entertained. In the instant case, the Petitioners have already obtained order from the relevant forum under the RERA Act and the same can be executed before relevant forum. A case under the Code, 2016 is not made out as the petition is clearly an attempt to substitute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 72,02,460/- for the Apartment purchased. As per clause 6 of the said Agreement, the Respondent had to handover the possession of the Apartment by 31.03.2017. (2) It is submitted that the Petitioner borrowed loan to the tune of ₹ 59,60,671/- for payment of sale consideration of the apartment purchased from Axis Bank vide a Tripartite Agreement dated 21.08.2014. As per the Agreement, Axis Bank disbursed loan to the tune of ₹ 16,67,618/- directly to the account of the Corporate Debtor. (3) The Applicants opted for the Construction linked plan and as per the plan the Applicants had to pay in accordance to the stages of construction of the Apartment. In furtherance of which the Financial Creditor had paid a total a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evelopment) Act, 2016 against the Corporate Debtor for the possession of the above stated until vide Complaint No. CMP/190118/000907. (8) Ld. Karnataka, RERA, vide order dated 27.08.2019 directed the Corporate Debtor to refund the amount of ₹ 21,94,222/- with interest @ 9% per annum on the respective amount paid on respective date prior to 30.04.2017 and interest(r) 2% per annum above SBI marginal lending rate of interest commencing from 01.05.2017 till realization of the full amount. Refund the amount of ₹ 8,04,794/- paid by the Complainants towards interest and other expenses. Further, to execute a deed of cancellation of agreement after the entire amount is realized. Lastly to pay cost of ₹ 5,000/-. (9) The Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Hon'ble Supreme Court in Mobilox Innovations Private Limited Vs. Kirusa Software Private Limited in support of its contention that IBC is not intended to be a replacement for a recovery forum and this petition deserves to be dismissed as the petitioner is seeking to execute the order passed by Ld. Karnataka, RERA. 4. Heard Mr. Harshavardhan B. Sharma, learned Counsel for the Applicant and Mr. Pratyush Kalro, learned Counsel for the Respondent. We have carefully perused the pleadings of the Petitioners and the extant provisions of the Code. The relevant documents annexed with the respective submissions have been examined. 5. At the outset, it is made clear that as per the insolvency and Bankruptcy Code, (Amendment) Ordinan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case that it is before this Tribunal basically to seek execution of a decree passed by the Karnataka, RERA, Bengaluru. It is pertinent to mention that the Hon'ble NCLAT in a recent decision in its order dated 14.08.2020 in the matter of Sushil Ansal Vs. Ashok Tripathi Ors. Company Appeal (AT) (Insolvency) No. 452 of 2020 , held, after analysing the provisions of sections 5(7) and 5(8) of the Code, that a Decree Holder though covered under the definition of creditor under Section 3(10) of the Insolvency and Bankruptcy Code would not fall within the class of financial creditors and therefore, a decree holder cannot initiate a CIRP against a corporate debtor with an object to execute a decree. It cannot file an application U/s 7 of IBC a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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