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TMI Blog2019 (9) TMI 1609X X X X Extracts X X X X X X X X Extracts X X X X ..... ion under IBC,2016 as a Home Buyer in case of default on the part of the Corporate Debtor named as the promoter therein. In terms of clause 5(i) of the agreement the promoter was required to complete the building within 12 months from the date of signing the agreement and also providing under clause 5(ii) a grace period of 180 days. The price of the flat namely K-708, under clause 3(a) is fixed as ₹ 49,59,375/- - the wordings in clause 5(ii) clearly evidences that the parties have virtually agreed to appropriate the loan amount granted earlier as the consideration for the flat purchase as otherwise the wordings as extracted above is an anomaly. It is pertinent to note that the execution of the agreement dated 1 October 2016 is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been filed by the Applicant under the provisions of Insolvency and Bankruptcy Code, 2016 who claim to be the Financial Creditor against the Respondent Company which has been termed as the Corporate Debtor. The transaction leading to filing of the present Application as reflected in the application jg stated to be as under: a. On 30.05.2013 a Memorandum of Understanding (MOU) was executed between the parties for the grant of loan of ₹ 50,00,000/- by Financial Creditor to the Corporate Debtor at 2% interest per month along with the mortgage of two flats by the Corporate Debtor to the Financial Creditor wherein the charge in relation to which was never created in favor of the Financial Creditor. b. On 01.06.2013 after the approva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ein the charge was never created in favor of the financial creditor. g. On July 2016, all the cheques of interest payments were honored except three cheques, which were dishonored, Since, then no other cheques were deposited in the bank. h. On 02.05.2017, Financial Creditor issued a letter seeking repayment of dues but this letter was returned unserved, i. On 05.06.2017 another letter demanding for the repayment of the entire dues was issued by the Financial Creditor but was never replied by the Corporate Debtor. j. On 27.10.2017 a demand notice was issued by the Financial Creditor which was never replied. k. From December 2017, neither of the letters were replied nor any payment was made by the Corporate debtor. 2. Conseq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent, vide diary no. 9042 dated 19.11.2018 which are as follows: - a. Despite signing the memorandum of understanding, no security was created by the Corporate Debtor in favour of Financial Creditor and now the Corporate Debtor is challenging the existence of Memorandum of Understanding itself. b. It is submitted that Builder Buyer Agreement was only entered for the security as the said charge was never created in compliance of the provisions of Companies Act 2013. The Builder Buyer Agreement was signed by the Financial Creditor as a part of document required for the purpose of creation of charge in favour of Financial Creditor, the Corporate Debtor did not complete other document such as filing of CRC- 1 in compliance with the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rest on the loan was admittedly paid by the Corporate Debtor till June 2016 but after that the interest was also not paid by the Corporate Debtor. 5. The reply as filed by the Corporate Debtor and documents annexed therewith shows that an agreement dated 1 October 2016 has been entered into between Corporate Debtor and Financial Creditor from which the following facts have been recited And whereas the promoter is allowed to construct residents flats etc and the same are allowed to be sold or transferred to any person by the Promoter under the terms and conditions of the sale of the said plot by the CIPL and the Allottee/ Buyer has examined the relevant papers. And whereas the promoter to construct on the aforesaid plot a multi storey ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llows- However, all the payments/ demands have been received by the builder within the scheduled time 8. The above wordings in clause 5(ii) clearly evidences that the parties have virtually agreed to appropriate the loan amount granted earlier as the consideration for the flat purchase as otherwise the wordings as extracted above is an anomaly. It is pertinent to note that the execution of the agreement dated 1 October 2016 is not denied by the parties. Hence, considering the said agreement to be the fresh bargain as entered into between the parties thereby giving a go by to the earlier MOUs as well as the loan transaction of ₹ 50 Lakhs, 9. Still, the Financial Creditor will be entitled to maintain a petition under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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