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TMI Blog2021 (6) TMI 210X X X X Extracts X X X X X X X X Extracts X X X X ..... ahabad High Court,which remained unpaid leading to default of payment of the financial debt. Admittedly, the applicant is a decree holder, of a decree passed of UP-RERA Lucknow.In the present case the application under Section 7 is not filed only on the basis of the decree but the applicant has acted one step forward and executed the decree before UP-RERA Lucknow wherein execution order has been passed confirming the payment of debt due to the applicant - the present applicant though original decree holder, has not filed this application under Section 7 of the code, for execution of decree but to demand the financial debt due and failing which the insolvency resolution of the corporate debtor. Application admitted - moratorium declared. - Company Petition No. IB 3085/ND/2019 - - - Dated:- 31-5-2021 - DR. DEEPTI MUKESH HON BLE MEMBER (JUDICIAL) AND MS. SUMITA PURKAYASTHA HON'BLE MEMBER (TECHNICAL ) FOR THE APPLICANT :MS ASMITA CHAUDHARY, ADV. FOR THE RESPONDENT :MR. NEERAJ KUMAR, ADV. ORDER Per-Dr. Deepti Mukesh, Member (Judicial) 1. The present application is filed under Section 7 of the Insolvency and Bankruptcy Code, 2016 (for brevity the Cod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 7. Thereafter, the applicant made several reminders via email and telephonically, however, the corporate debtor gave only assurances and failed to hand over the possession. The applicant left with no other option, approached the Uttar Pradesh Real Estate Authority, Lucknow (hereinafter referred to as UP-RERA ) Bench and filed a complaint u/s 31 of Real Estate (Regulation Development) Act, 2016 against the corporate debtor for possession of the above stated unit vide complaint No. 82017619/2017. Pursuant to the said complaint, vide order dated 29.06.2018 the UP-RERA, Lucknowdirected the corporate debtor to refund the principal amount paid by the applicant along with delayed penalty interest @ 9.70% per annum, within 15 days from the date of the order. 8. The applicant submitted that the corporate debtor failed to comply with the order passed by the UP-RERA. Therefore,the applicant filed an application under Section 40 of the RERA Act, for execution of final order dated 29.06.2018. Accordingly, a recovery certificate for ₹ 41,70,857 was issued on 18.06.2019 by the UP-RERA, Lucknow Bench. Further, it is stated that the said recovery certificate was challenged by the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orm the corporate debtor. d) It is stated that in view of pendency of the issue of finality of recovery certificate passed by the UP-RERA, Lucknow present proceeding could not have been initiated and is liable to be dismissed. e) That the corporate debtor has not complied with condition as envisaged under the proviso of Section 7(1) of the I B code. Further there is a pre-existing dispute regarding the actual liability/dues of the financial creditor and against the applicant. 11. The applicant filed rejoinder and submitted following: a) That the default of corporate debtor is evident from the final order dated 29.06.2018 and recovery certificate dated 18.06.2019. Further in absence of any stay and clear directions of the Hon ble Allahabad High Court to pay principal amount of ₹ 28,53,987/- within stipulated period which is not received yet, the applicant needs to be admitted. b) The applicant has relied on following citations in support of the application: Innoventive Industries Vs. ICICI Bank Anr. for defining the scope and requirement of admission of Section 7 application and necessity of proving the financial debt, due and payable by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ritten submissions and stated the following: a) That applicant has again relied upon the case of Pioneer Urban Land Infrastructure Ltd. Vs. Govindan Raghavan (2019) 5 SCC 725. b) That applicant states that by depositing sum of ₹ 9,54,910/- the corporate debtor has admitted the financial debt. c) That that a judgment passed by Hon ble National Company Law Appellate Tribunal in the case of Sushil Ansal Vs. Ashok Tripathi Ors., with respect to the question of decree holder being a creditor, the Hon ble Appellate Authority has neither questioned nor put a stay on the definition of creditor under Section 3 (10) of the code, which still include a decree holder can approach this Hon ble Tribunal for the default of its debt. Thereafter, the Hon ble Supreme Court of India in the appeal [Dinesh Kumar Ors. Vs. Sushil Ansal Ors., Civil Appeal No. 3403 of 2020] considering the issue of decree holder as a relevant question law issued notice, which is pending adjudication. Hence, the said judgment is still valid and binding. d) That the reliance is further made in V.R. Hemantraj Vs. Stanbic Bank Ghana Ltd Anr. (Company Appeal (AT) (Insolvency) and M/s. Urgo C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... crystalized with respect to the refund of the allotment money as ordered by the UP-RERA, Lucknow, and again confirmed by the Hon ble Allahabad High Court,which remained unpaid leading to default of payment of the financial debt. Admittedly, the applicant is a decree holder, of a decree passed of UP-RERA Lucknow.In the present case the application under Section 7 is not filed only on the basis of the decree but the applicant has acted one step forward and executed the decree before UP-RERA Lucknow wherein execution order has been passed confirming the payment of debt due to the applicant. Further, the corporate debtor has challenged the said execution order of UP-RERA, Lucknow which is pending before the Hon bleAllahabad High Court wherein the directions are passed against corporate debtor to pay the principal amount within 2 weeks of the receiving of the said order. Hence, the amount of debt as confirmed by the Hon ble Allahabad High Courtordering to be pay the same has reached finality, no stay against the said order is placed before us. Thus, the amount paid by the applicant to the corporate debtor against the allotment of apartment, which falls under the category of financial de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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