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TMI Blog2019 (9) TMI 1616X X X X Extracts X X X X X X X X Extracts X X X X ..... uld intervene at admission stage to oppose admission. Secondly if some homebuyers are satisfied with the breach of obligation then it cannot be a lawful ground to resist those who have vested right to invoke the provisions of Section 7 of the Code. Such a course is wholly unwarranted and would not be sustainable in the eye of law. Petition admitted - moratorium declared. - C.P. NO. IB-710(PB)/2019 - - - Dated:- 19-9-2019 - CHIEF JUSTICE (RTD.) M.M. KUMAR HON'BLE PRESIDENT AND SHRI S.K. MOHAPATRA HON'BLE MEMBER (T) For the Petitioner: Mr. Piyush Singh, Mr. Kumar Pradyuman And Ms. Aditi Sinha, Advocates For the Respondent: Mr. Vivek Kohli, Mr. Sandeep Buraria, Mr. Aman Anand, Mr. Mudit Gupta, Advocates For the Applicants: Mr. Vivek Sibbal, Mr. Pankaj Agarwal, Advocates JUDGMENT M.M. KUMAR, PRESIDENT Ms. Babita Gupta including two others claiming themselves to be a 'financial creditors' have filed this application under Section 7 of the Insolvency and Bankruptcy Code, 2016 (for brevity 'the Code') read with rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (for brevity 'the Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - 16B, Greater Noida which was being developed by and promoted by 'the Corporate Debtor'. The petitioners have paid a total amount of ₹ 43,32,151/- (by petitioner Nos. 1 2) ₹ 43,32,270/- (by petitioner No.3) on various dates to the Respondent/ Corporate Debtor as per ledger (Annexures P-3 P-8. The said Residential Apartments were purchased by the Petitioners under the 'Assured Return/ Monthly Rent'. Apartment Buyer's Agreement (Annexure P-2 P-7) were executed between the parties on 17.10.2012 04.11.2012. 6. According to clause 11 (a) of the Apartment Buyer's Agreement (Annexure P-2 P-7), the Respondent Company undertook to complete the construction of Towers A, F M and hand over the possession of the said Residential Apartments to the petitioners by 31.03.2016 with grace period of three (3) months i.e. by 30.06.2016. At this stage it would be profitable to read clause 11 (a) of the said Agreement which is as under: 11(a) Schedule for possession of the Said Apartment Subject to the other terms of this Agreement and the Company's present plans and estimates and to all just exceptions, timely payment of the Total Sale Price ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gard our attention has been invited to a Full Bench judgment of the Hon ble Allahabad High Court rendered in the case of Gajraj and Ors. v. State of U.P. ors., 2011 (11) ADJ 1. Specific reliance has been placed on paras 17, 36, 155 (4) (14), 230, 271, 274 to argue that the NOIDA Authority could not have carried out development, utilise the land acquired as per its Master Plan 2021 without approval/ clearance by National Capital Regional Planning Board. However, on queries raised by the Bench, Mr. Kohli was unable to rebut that once the Master Plan of 2001 was in vogue when the lease deed was executed on 03.11.2010 then where is the question of any impediment created by the Master Plan of 2021. We also asked that as per the direction issued by the Hon ble Full Bench in para 482 sub para 3 how the judgment has delayed the project which was to follow the Master Plan of 2001. At one stage an attempt was made to argue that on account of an interim order of stay in land acquisition proceeding, the delay has occurred. There was no judgment placed on record nor any order of interim stay shown to us. Moreover, the Apartment Buyer's Agreement in many cases is dated 04.11.2012 (Ann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e RERA. Remedies that are given to allottees of flats/ apartments are therefore concurrent remedies, such allottees of flats/ apartments being in a position to avail of remedies under the Consumer Protection Act, 1986, RERA as well as the triggering of the Code. iii. Section 5(8)(f) as it originally appeared in the Code being a residuary provision, always subsumed within it allottees of flats/ apartments. The explanation together with the deeming fiction added by the Amendment Act is only clarificatory of this position in law. A perusal of conclusion (i) shows that the explanation added to Section 5 (8) (f) by the Insolvency and Bankruptcy Code (Second Amendment) Act, 2018 w.e.f. 06.06.2018 has been upheld and it does not infringe Articles 14, 19(1)(g) read with Article 19(6), or 300-A of the Constitution of India. Conclusion (iii) further shows that Section 5 (8) (f) as originally incorporated in the Code was a residuary provision and always subsumed within it allottees of flats/ apartments and the Amendment Act is only clarificatory of the position of law. Therefore, we find no force in the argument of Mr. Kohli. 3. The last argument raised is based on para 50 of the ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by June, 2016. By giving reasonable time it could have been extended by one year. By adopting reasonable construction on clause 11 (a) of the Apartment Buyer's Agreement we find that the noncompletion of the project even today is wholly unreasonable and cannot be continence. The argument is absolutely unacceptable and the petition cannot be thrown out on the ground that time was not essence of the contract and the Corporate Debtor could have completed the construction any time. 11. It is surprising that the settlement in another matter namely IB- 1309(PB)/2019, Ms. Sangeeta Rustagi Another v. M/S. Rajesh Projects (India) Pvt. Ltd. (Corporate Debtor) has taken place vide Settlement Deed dated 09.02.2018 and the Corporate Debtor has failed to comply with the terms of the settlement. It is a classical illustration of lack of liquidity and lack of funds. Therefore, the default in delivery of possession stand established. 12. It is pertinent to mention that on account of stay order passed by Hon'ble the Supreme Court in Pioneer Urban Land and Infrastructure Limited's case on 11.03.2019, hearing in this matter was deferred on various occasions. 13. Now we deal with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Hon'ble NCLAT rendered in the case of IDBI Bank Ltd. v. Odisha Slurry Pipeline Infrastructure Ltd., Company Appeal (AT) (Insolvency) No. 51 of 2019 decided on 15.01.2019 no third party could intervene at admission stage to oppose admission. Secondly if some homebuyers are satisfied with the breach of obligation then it cannot be a lawful ground to resist those who have vested right to invoke the provisions of Section 7 of the Code. Such a course is wholly unwarranted and would not be sustainable in the eye of law. For these reasons we dismiss the application. 18. As a sequel to the above discussion, this petition is admitted and Mr. Gaurav Katiyar is appointed as an Interim Resolution Professional. 19. In pursuance of Section 13 (2) of the Code, we direct that Interim Insolvency Resolution Professional to make public announcement immediately with regard to admission of this application under Section 7 of the Code. The expression 'immediately' means within three days as clarified by Explanation to Regulation 6 (1) of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. 20. We also declare moratorium in terms of Section 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e required by him in managing the affairs of the Corporate Debtor. In case there is any violation committed by the ex-management or any tainted/ illegal transaction by ex-directors or anyone else the Interim Resolution Professional/ Resolution Professional would be at liberty to make appropriate application to this Tribunal with a prayer for passing an appropriate order. The Interim Resolution Professional/ Resolution Professional shall be under a duty to protect and preserve the value of the property of the 'Corporate Debtor' as a part of its obligation imposed by Section 20 of the Code and perform all his functions strictly in accordance with the provisions of the Code. 23. Directions are also issued to the Ex-Management/Auditors etc. to provide all the documents in their possession and furnish every information in their knowledge as required under Section 19 of the Code to the Interim Resolution Professional within a period of one week from today otherwise coercive steps to follow. 24. We direct the Financial Creditors to deposit a sum of ₹ 2 lacs with the Interim Resolution Professional to meet out the expenses to perform the functions assigned to him in acc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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