9911796707
TMI Blog2021 (8) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... ointly file petition to initiate CIRP against the Corporate Debtor. There is no iota of doubt that the applicant in this case who is an allottee and who has applied singly for commencement of CIRP against the Corporate Debtor does not meet the bench mark of jointly filling by 100 allottee or not less than 10% of number of allottee. Therefore, this petitioner filed by the single homebuyer does not qualify as a fit Application as per Section 7 of IBC, 2016 as amended from time to time to be considered under CIRP. This bench dismisses the petition of a single allottee to commence the CIRP against the Corporate Debtor - petition dismissed. - C. P. No. 3398/IBC/MB/2019 - - - Dated:- 16-7-2021 - Hon ble Shri H.V. Subba Rao, Member (Judicial) And Hon ble Chandra Bhan Singh, Member (Technical) For the Applicant : Adv. Umang Mehta For the Respondent : Adv. Arvind Giriraj ORDER Per : Shri: Chandra Bhan Singh, Member ( Technical ) 1. This Company petition is filed by Mrs. Rajshree Vora Ms. Prachi Vora (hereinafter called Financial Creditor ) seeking to initiate Corporate Insolvency Resolution Process (CIRP) against Makwana Properties Limited (hereinafter cal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ancial Creditor sought refund of the said payment in pursuance of Clause 10 of the said Agreement. It is agreed that you are an investor and hence in the event if we do not obtain anyone i.e. LOI or IOA or CC in relation to construction on the plot within a Lock in period of 18 months plus 6 months i.e. grace period of 24 months from the date hereof, subject to force majeure, then and in such event, you shall terminate this proposal by claiming refund from us with interest thereon calculated at the rate of 15% p.a. from the date of this writing till the date of termination/cancellation. f. The financial Creditor replied to the same through her husband s email dated 06.05.2019; stating that the Corporate Debtor s email fails to address the concerns raised by the Financial Creditor over the telephonic conversation. The Financial Creditor by this email also expressed their dismay over the unexplained delay caused by the Corporate Debtor in the said project. g. Since no payments were received from the Corporate Debtor the Financial Creditor was constrained to address a legal notice dated 25.07.2019 through her advocate. The legal notice states that because of the Corpora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt and not on account of reasons within the control of the respondent. In that event the principles akin to force majeure will apply. The respondent had made all possible efforts to obtain such documents, but such an event of force majeure beyond the control of the Respondent has occurred and as such I crave leave to refer to and rely upon the events of force majeure as and when necessary. Findings 1. This petition has been filed on 30.08.2019 under Section 7 of the IBC, 2016 by the applicant seeking initiation of CIRP against the Makwana Properties Pvt. Ltd. (Corporate Debtor). The applicant had extended an amount of ₹ 19,03,188/- towards the payment for purchase of Flat No. 1907 in B-wings having Carpet Area of 621 Sq. Ft. in the Real Estate Project. The applicant/Financial Creditor mentions that in terms of agreement signed between the parties he is not a homebuyer but an investor/ Financial Creditor. The buttress his argument, the applicant draws the attention of the Bench on Para No. 10 of the agreement which is reads as follows: It is agreed that you are an investor and hence in the event if we do not obtain anyone i.e. LOI or IOA or CC in relation to cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10% 4. On plinth 10% 5. Slabwise- 1st Podium to Last Slab 40% 6. On Completion of civil Work 5% 7. On fit-Out Possession 5% 3. The bench notes that the applicant is basically an allottee in the Real Estate project. Therefore, the agreement cited by the Financial Creditor is effectively an allotment letter of the flat with the schedule of the payment of the flat. Further, the return of investment as provided in Clause 10, does not provide for any fixed return but is conditional upon completion of the project. It has also provided that the payment will not be due in the event of force majeure issue. 4. The Bench is clear that the petitioner is an allottee and the flat purchaser in a Real Estate Project as the petitioner has been allotted flat no. 1902 in the said project. 5. As per the IBC, 2016 an allottee is covered under the definition of Financial Creditor by section 5(8)(f) of the Act. The definition in this regard is as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. (3) The financial creditor shall, along with the application furnish- (a) record of the default recorded with the information utility or such other record or evidence of default as may be specified; (b) the name of the resolution professional proposed to act as an interim resolution professional; and (c) any other information as may be specified by the Board. (4) The Adjudicating Authority shall, within fourteen days of the receipt of the application under sub-section (2), ascertain the existence of a default from the records of an information utility or on the basis of other evidence furnished by the financial creditor under sub-section (3). (5) Where the Adjudicating Authority is satisfied that- (a) a default has occurred and the application under sub-section (2) is complete, and there is no disciplinary proceedings pending against the proposed resolution professional, it may, by order, admit such application; or (b) default has not occurred or the application under sub-section (2) is incomplete or any disciplinary proceeding is pending against the proposed resolution professional, it may, by order, reject such application: Provided that the Adjudicating Authori ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
