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TMI Blog2019 (10) TMI 1440X X X X Extracts X X X X X X X X Extracts X X X X ..... CD at Village Illabans, Noida, Gautam Budha Nagar, U.P. and have made a payment of Rs. 5,36,584/- towards booking amount at the time of booking. b) The FCS entered into Apartment Buyer Agreement dated 1.1.2013 with the CD and in terms of clause 1.1 of the said Agreement, the total sale consideration of the unit was for an amount of Rs. 63,28,790/-. c) The Clause "C" of the Agreement stated that the CD was liable to give possession of the unit to the FCS within 36 months from the date of execution of the Agreement i.e. by January, 2016. d) The CD issued an allotment letter dated 16.4.2014 to the FCS confirming the booking and allotted a unit No.203, 2nd floor, in Tower Green, Village Illabans, Noida admeasuring 1500 sq.ft. e) The FCS and the CD executed an additional Agreement titled as Apartment Buyer Agreement Additional Agreement dated 18.4.2014 wherein the CD had promised to deliver the possession by the end of December, 2015 with best efforts, with an additional grace period of 180 days i.e. by June, 2016. It is pertinent to mention here that the CD has grossly failed to deliver the possession within the stipulated time and the same has frustrated the purpose of purchas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and construction activities by the NOIDA Authority through its officers and agents, the CD acted to safeguard the interest of the Home buyers and investors in every possible way and was inclined at finishing the construction project. d) The Civil Judge by its order dated 21.2.2014 in a Suit No. 1581 of 2012 titled Kaveri Sakhari Samiti Ltd. vs. State of UP & Ors. Before the Court of Civil Judge, Gautarn Budh Nagar, UP granted the interim injunction in favor of the Society herein, thus restraining the NOIDA Authority of any further interference in the peaceful possession and construction on the said plot. e) However, despite an interim injunction against the NOIDA Authority it issued a notice dated 23.9.2014 upon the Society for seizing construction activities on the said plot after which the society filed another contempt case against the NOIDA Authority before the Ld. Civil Judge, Gautam Budh Nagar for disobeying with the judicial orders which is pending adjudication. f) The Society also challenged the said Notice of Noida Authority before the Hon'ble Allahabad Court in Writ Petition 36329 of 2015, wherein the Court was pleased to grant an injunction in favor of the Society ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its control. The Clause 33 further states that, "The Developer shall not be held responsible or liable for not performing any of its obligations or undertakings provided for in this Agreement if such performance is prevented, delayed or hindered by an act of god like fire, flood, explosion, war, riot, terrorist attacks, sabotage, inability to procure or general shortage of labor, equipment, facilities, materials or supplies, failure of transportation, strikes, lockouts, action of labor unions or any other cause not within the reasonable control of the developer. The Allottee shall be informed about such force majeure and also when the period of force majeure gets over. However, in case of the abandonment of the project on this account, the Allottee shall have the option to seek refund of consideration plus simple interest thereon @ 6% per annum from the date of force majeure conditions. 6. The CD has miserably failed to deliver possession of the said residential units, even though as per the builder buyer agreement the possession was to be delivered within a time of span of 36 months from the date of agreement with a further grace period of 180 days. Thereby admitting the existenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicants and is still subsisting whereas the present application was filed in January 2019. 10. The contention of the CD is that it has been granted time till 2021 to complete the said project. We find that the argument is completely fallacious, in as much as the same would not absolve the CD of its liability to honor the commitment made to the applicants herein as per the builder buyer agreement for the purposes of the Code. Merely because the builder has been provided a different time-line for completion of the project to the RERA would not cut any ice because IBC override RERA and secondly the financial creditor is not a party to any such transaction. Moreover, there is contravention of Recital 'C' of the Agreement. 11. 1t is settled principle of law that wherever time is the essence of a contract in such types of construction contracts, the builder is required to adhere to the date of delivery mentioned in the builder-buyer agreement despite the presence of similar reservations in the contract. We are supported by the observations of Hon'ble National Consumer Disputes Redressal Commission in the case of Pradeep Narula v. Granite Gate Properties Pvt. Ltd., 2016 SCC O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n is admitted. Further, it is also evident from the said Form 2 as filed by the IRP signed under his hand that he is not a related party to the CD and that he is eligible to be appointed as an independent director on the Board of the CD. Certificate of registration of the IRP as issued by the Insolvency and Bankruptcy Board of India (IBBI) and self-attested has also been enclosed along with the Application by the proposed IRP and taking into consideration all the above, this Tribunal finds that this is a fit case to be admitted in terms of Section 7 of IBC and thereby initiate CIRP as against the CD with the following consequences: a. Mr Manish Gupta, having Registration number: IBB1/IPA-001/1P-P01131/2018-2019/11826 is appointed as the IRP and he shall strictly act in accordance with the provisions of IBC and the attendant Rules enjoined upon him; b. In terms of Section 14, as reproduced hereunder, the CD shall be under moratorium on the following terms: (a) the institution of suits or continuation of pending suits or proceedings against the CD including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; (b)trans ..... X X X X Extracts X X X X X X X X Extracts X X X X
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