9911796707
TMI Blog2021 (12) TMI 288X X X X Extracts X X X X X X X X Extracts X X X X ..... en Crores Forty-Eight Lakhs One Thousand Five Hundred Seventy-Seven Only), interest amount in default Rs. 10,34,80,468/- (b) That the common area maintenance and common area Electricity Charges which the Corporate Debtor is supposed to pay for the period from the date of accrual of maintenance charges till the date of allotment to a home buyer, is not paid by the Corporate Debtor despite repeated request. Principal amount in Default Rs. 1,82,02,620/- (Rupees One Crore Eighty-Two Lakhs Two Thousand Six Hundred Twenty Only). (c) That the Corporate Debtor has also defaulted in not making the payment towards the defect/deficiency in service committed by it, despite repeated request from the Financial Creditors. Principal amount in Default Rs. 23,21,13,410/- (Rupees Twenty-Three Crores Twenty-One Lakhs Thirteen Thousand Four Hundred Ten only). 2. It is the case of the Financial Creditor that the Corporate Debtor had collected Interest Bearing Security Deposit Charges (IBMS) from the Members of Financial Creditor which was in the nature of a corpus security deposit in lieu of the maintenance services. This deposit was an interest-bearing deposit and thus attracted the time value of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earing for the Financial Creditor as well as Corporate Debtor. 5. The main contention of the Financial Creditor is that the IBMS charges have not been properly used for the purposes for which they have been charged under clause 11.2 of the agreement. In order to appreciate the issue it is pertinent to refer to clause 11.2 of the agreement which reads as follows: Interest Bearing Maintenance Security "IBMS", a) In order to secure adequate provision of the maintenance services and due performance of the FLAT ALLOTTEE(S) in paying, promptly, the maintenance bills and other charges as raised by the Maintenance Agency, the FLAT ALLOTTEE(S) agrees to deposit, as per the Schedule of Payment and to always keep deposited, with the DEVELOPER/Maintenance Agency, an interest bearing maintenance security (IBMS) calculated at the rate of Rs. 50 (Rupees Fifty only) per square ft. of the Super Area of the Flat carrying a simple yearly interest, as per the applicable rates on fixed deposits (applicable to one year fixed deposit) accepted by State Bank of India at the close of each financial year on 31 March calculated from the date of realisation of the amount by the DEVELOPER. In case of fail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the FLAT ALLOTTEE(S), at any time including upon execution of the Conveyance Deed, and thereupon, the DEVELOPER shall stand completely absolved/discharged of all its obligations and responsibilities concerning the IBMS, including but not limited to issues of repayment, refund and/or claims, if any, of the FLAT ALLOTTEE(S) on account of the same. In the alternative, the DEVELOPER shall have the sole right to transfer and handover the corpus of the IBMS of the FLAT ALLOTTEE(S), after adjusting therefrom any outstanding maintenance bills and/or other outgoings of the FLAT ALLOTTEE(S), to Maintenance Agency and/or to the society/association of flat allottee(s)/owner(s)/occupant(s) and/or any other body, as and when the same is formed, at any time, including upon execution of the conveyance deed and thereupon the DEVELOPER shall stand completely absolved/discharged of all its obligations and responsibilities concerning the IBMS including but not limited to issues of repayment, refund and/or claims, if any, of the FLAT ALLOTTEE(S) on account of the same and all clauses dealing with or concerning the IBMS in this Agreement and in the conveyance deed, as and when executed, as far as they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, for that we have already discussed in detail above in paragraph 5 and 6 of this order that there is breach of clause 11.2 of agreement, hence, the (b) condition also stands satisfied and as far as last condition is concerned, the application is complete and there is no disciplinary proceeding pending against the Interim Resolution Professional proposed by the financial creditor as evident from Form-2. In addition to it, Section 5(8)(f) of IBC, 2016 is also very relevant to produce here, which is as follows: "5. Definition. (8) "Financial Debt" means a debt along with interest, if any, which disbursed against the consideration for the time value of money and includes- .......... (f) any amount raised under any other transaction, including any forward sale or purchase agreement, having the commercial effect of a borrowing; Explanation. - for the purpose of this of this sub-clause,- (i) any amount raised from an allottee under a real estate project shall be deemed to be an amount having the commercial effect of a borrowing; and (ii) the expressions, "allottee" and "real estate project" shall have the meanings respectively assigned to them in clauses (d) and (zn) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or interrupted during moratorium period. The provisions of sub-section (1) of section 14 of IBC, 2016 shall not apply to such transactions, as notified by the Central Government. 12. The IRP shall comply with the provisions of Sections 13(2), 15, 17 and 18 of the code. The Directors of the Corporate Debtor, its promoters or any person associated with the management of the Corporate Debtor shall extend all assistance and cooperation to the IRP as stipulated under section 19 for discharging his function under section 20 of the IBC, 2016. 13. The financial Creditor is directed to send the copy of this order to the IRP with immediate effect, so that he could take charge of the Corporate Debtor's assets etc., and make compliance with this order as per the provisions of IBC, 2016. 14. The financial Creditor is directed to communicate this Order to the IRP and the Corporate Debtor with immediate effect. 15. The Registry is directed to send a copy of this order to the Registrar of Companies concerned for updating the status of Corporate Debtor on the MCA-21 site of Ministry of Corporate Affairs for information of all concerned. 16. The Order is pronounced by this Adjudicating Aut ..... X X X X Extracts X X X X X X X X Extracts X X X X
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