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TMI Blog2021 (12) TMI 288X X X X Extracts X X X X X X X X Extracts X X X X ..... fault has been established. Hence, the Corporate Insolvency Resolution Process of Corporate Debtor is initiated from the date of this order and the captioned application filed by Financial Creditor is admitted. Application admitted - moratorium declared. - IB-936/ND/2020 - - - Dated:- 30-11-2021 - Bachu Venkat Balaram Das, Member (J) And Narender Kumar Bhola, Member (T) For Appearing Parties : Gaurav Mitra, Sr. Advocate, Piyush Singh, Aditi Sinha, Akhil Sachar and Sunanda Tulsyan, Advocates ORDER Bachu Venkat Balaram Das, Member (J) 1. The present application under Section 7 of the IBC Code, 2016 has been filed by M/s. The Vilas Condominium Association consisting of homebuyers having 327 units allotted in the name of members of the Association, the Financial Creditor seeking to initiate CIRP against MGF Developments Limited, the Corporate Debtor. According to the Financial Creditor, the default amount under various heads are as follows: (a) The amount of Interest-Bearing Maintenance Security (IBMS) collected from the home buyers is not refunded to the Association of Home Buyers as per law, despite repeated request. Principal Amount in default ₹ 11, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the residence/owners and the same stands adjusted on the expenses incurred towards the project complex and providing additional facilities for the Residents. Relying upon the clause 11 of the agreement, the Corporate Debtor has submitted that the IBMS charges can be utilized for payment towards upgradation of DG Sets, electric sub-station and other capital plants/equipments, further the said amount has been used for construction of a state-of-the-art clubhouse with specialty Restaurant, swimming pool and 62-seater mini theatre for the allottees of the occupants of the complex. He has further submitted that an additional some of ₹ 10 lakhs has been incurred towards air-conditioning of the lobby of various towers A, B, C, D, E, F, G, H, a sum of ₹ 20 Lakh has been incurred towards providing temporary toilets and waiting rooms for Chauffeurs/staff of the resident. The Corporate Debtor has further submitted that he has incurred for installation of LED lights, creation of electrical infrastructure of 4,500 KDA etc. 4. The Financial Creditor as well as the Corporate Debtor have filed various documents in support of their case. We have gone through the pleadings and documen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... FLAT ALLOTTEE(S) fails to pay such increase in the IBMS or to make good the shortfall as aforesaid on or before its due date, then the FLAT ALLOTTEE(S) authorizes the DEVELOPER to treat this Agreement as cancelled without any notice to the FLAT ALLOTTEE(S) and to recover the shortfall from the sale proceeds of the Flat and the parking space and to refund to the FLAT ALLOTTEE(S) the balance of money realized from such sale after deducting therefrom the entire earnest money, interest on delayed payments, any interest paid, due or payable and all other dues as set out in this Agreement. It is made specifically clear and it is so agreed by and between the Parties hereto that this part of this Agreement relating to IBMS, as stipulated in this clause, shall survive the conveyance of title in favour of the FLAT ALLOTTEE(S) and the DEVELOPER shall have first charge/lien on the Flat in respect of any such non-payment of shortfall/increases, as the case may be. b) The DEVELOPER shall, at its sole discretion, have the right to refund/offer to refund, at its sole option, to the FLAT ALLOTTEE(S), in full and final settlement of the IBMS, if already paid by the intending allottee to the DE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the IBMS charges cannot be utilised for any other purposes other than that has been mentioned in the said clause. The Corporate Debtor has himself admitted that the amount has been utilized for the purpose of construction of a club, restaurant, swimming pool and 62-seatermini theatre. 7. The Hon'ble Supreme Court in Innoventive Industries Ltd. V. ICICI Bank { (2018) 1 SCC 407} Pioneer Urban Land and Infrastructure Ltd. V. Union of India { (2019) 8 SCC 416} and reiterated in Manish Kumar Sinha V. Union of India 85 Anr. {Writ Petition No. 26 of 2020} in a Section 7 application, the Adjudicating Authority only has to determine. a. Whether the Financial Creditors in a class have filed the application jointly having 10% mandate as per the first proviso to Section 7 of the Code? b. Whether the default has occurred as per the agreement executed between the parties, which in the present case is the BBA executed at Annexure P-2 of the Section 7 application? c. Whether the application is complete and there are no disciplinary proceedings against the proposed Insolvency Resolution Professional? 8. As far as first condition is concerned, the association members ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. He is also directed to cause public announcement under section 15 of the IBC, 2016, within three days from date of receiving the copy of this order and call for submissions of claim in the manner as prescribed. 10. The moratorium is declared which shall have effect from the date of this order till the completion of CIRP, for the purposes referred to in section 14 of the IBC, 2016. It is ordered to prohibit all of the following, namely: a. The institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; b. Transferring, encumbering, alienating or disposing of by the Corporate Debtor's assets or any legal right or beneficial interest therein; c. Any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (54 of 2002); d. The recovery of any property by an owner or lessor where such property is occupied by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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