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TMI Blog2021 (10) TMI 1307X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Financial Creditor is complete in all respects as required by law. It clearly shows that the Corporate Debtor is in default of a debt due and payable, and the default is in excess of minimum amount stipulated under section 4(1) of the IBC. Therefore, the debt and default stands established and there is no reason to deny the admission of the Petition. In view of this, this Adjudicating Authority admits this Petition and orders initiation of CIRP against the Corporate Debtor. Application admitted - moratorium declared. - CP (IB) 4149/MB/C-II/2018 - - - Dated:- 29-10-2021 - Hon'ble Member (Judicial) : Mr. Ashok Kumar Borah Hon'ble Member (Technical) : Mr. Shyam Babu Gautam For the Financial Creditor : Mr. Ratnanko Banerji, Senior Counsel a/w Mr. Samik Kanti Advocate. For the Corporate Debtor : Mr. Dinyar Mador, Advocate a/w Mr. Shrivalli Kajaria, Advocate. ORDER Per: Shyam Babu Gautam, Member (Technical) 1. This is a Company Petition filed under section 7 ( the Petition ) of the Insolvency and Bankruptcy Code, 2016 (IBC) by Abhigyan Developers Pvt. Ltd. ( the Financial Creditors ), seeking to initiate Corporate Insolvency Resolution P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the appropriate authorities the entire sum of ₹ 3,50,00,000/- (Three Crore Fifty Lakhs only) shall be repaid along with 12% cumulative interest per annum. A Copy of letter is annexed as Annexure F . 7. By letter dated 8th July 2016, the Respondent confirmed conversion of payment made towards booking of flat to a loan account and assured the Applicant that the amount shall be repaid with a mutually agreed interest/compression before 30.08.2016. A Copy of letter is annexed as Annexure H . However, no payment was received by the Applicant in this regard. On 30th September 2017, the Respondent again admitted the amount due to the Applicant along with the cumulative interest that also remained unpaid, seeking further time to repay the same along with interest. A Copy of letter is annexed as Annexure I . 8. On 31.03.2018, the Respondent informed the Applicant through letter confirming that the sum of ₹ 3,50,00,000/- received during the period of 2009-2010 is due and would be repaid back with 15% cumulative interest, compounded quarterly from the date of investment till the date of Payment. However, no payment was made till date. A Copy of letter is annexe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve Judgement, the Financial creditor claims that the Corporate Debtor has admitted that the sum of ₹ 3,50,00,000/- will be paid along with 15% cumulative interest compounded quarterly, and therefore the argument that the Financial Creditor has not booked any interest under such loan amount has no merit. 13. Relying on the aforesaid grounds, the Applicant all ingredients of Section 7 of the IBC stand satisfied namely: (i) by the admission letters, the Corporate Debtor has admitted that a debt is due and payable to the FC; (ii) specifically, in the letter dated 31st March 2018 the Corporate Debtor has admitted the sums along with interest is unpaid. Submissions on Behalf of the Corporate Debtor: 14. In order to establish that the Corporate Debtor is entitled to file the Petition, the Corporate Debtor relies on the Applicant s submission in Paragraph 5b at Pg. 4 of Applicant s Affidavit in Rejoinder that it is an allottee within the meaning of Section 2(d) of the Real Estate (Regulation and Development) Act, 2016 and therefore is a financial creditor who is owed a financial debt as per provisions of Section 5(7) read with Section 5(8)(f) of the IB Code 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. Therefore, the Corporate Debtor submits that the Applicant is bound by the admission made in his Affidavit in Rejoinder and cannot put forth a contrary case. 17. The Corporate Debtor put reliance on an order date 16th July 2021 in the case of Mrs. Rajshree Vora Anr Versus Makwana Properties Pvt. Ltd., the NCLT Mumbai Bench III dismissed a similar case holding that a Petition filed by a single allottee is not maintainable. In line to this, the Corporate debtor request for Dismissal of the Petition on grounds that the same is deemed to be withdrawn before admission. 18. Coming on the issue of Claim of the Applicant that a Debt is due and owing to him is not correct, the Corporate Debtor relies on first letter dated 31st March 2015 which according to him makes it very clear that the money would be transferred to a loan account only for a temporary basis till the project is approved and starts. The Respondent submitted that the le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lative interest at 15%. The interest component was never expressly crystalised by between the parties. 23. The Corporate Debtor submits that the reason for delay are not on account of the him and that if any orders are passed in the present Petition, great prejudice will be caused not only to the tenants and free sale purchasers, but also to the MCGM, MHADA and slum dwellers. The Corporate Debtor relies on the Hon ble Supreme Court of India in Pioneer Urban Land and Infrastructure Limited Anr. v. Union of India Ors. [(2019) 8 SCC 416] which held in Paragraph 50 that under S. 65 of the Code, the real estate developer can also point out that the insolvency resolution process under the Code has been invoked fraudulently, with malicious intent, or for any purpose other than the resolution of insolvency. This the real estate developer may do by pointing out, for example, that the allottee who has knocked at the doors of the NCLT is a speculative investor and not a person who is genuinely interested in purchasing a flat / apartment. They can also point out that in a real estate market which is falling, the allottee does not, in fact, want to go ahead with its obligation to take ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion as to the Financial Creditor is false and would appear from the records of the case. 28. Furthermore, reference is made to paragraphs 5(c) to 5(i) (@pg 4-6 of the rejoinder) 6(a) to 6(d) (@pg. 7-8 of rejoinder) of the Rejoinder by the Applicant to demonstrate that the Financial Creditor has consistently maintained that it is the Corporate Debtor s acts that rendered the amount given as advance consideration for a flat as a financial debt under Section 5 (8) of the IBC and the FC is a Financial Creditor under Section 5(7) of the IBC. 29. The Financial creditor submits that the Corporate Debtor has failed to explain the admissions contained in the aforesaid Admission Letters. Further, in the reply filed by the Corporate Debtor, the Corporate Debtor has admitted to the issuance of the Admission Letters. It is respectfully submitted that, upon such admission, there is no plausible defence that the Corporate Debtor can have. 30. During the course of arguments, the CD had relied on Nagindas Ramdas v. DalpatramIchharam [(1974) 1 SCC 242] at paragraph 24 to state that admissions, if true and clear, are by far the best proof of facts admitted. This judgement was ostensibl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority) Rules, 2016 along with a copy of his Certificate of Registration. 36. The application made by the Financial Creditor is complete in all respects as required by law. It clearly shows that the Corporate Debtor is in default of a debt due and payable, and the default is in excess of minimum amount stipulated under section 4(1) of the IBC. Therefore, the debt and default stands established and there is no reason to deny the admission of the Petition. In view of this, this Adjudicating Authority admits this Petition and orders initiation of CIRP against the Corporate Debtor. 37. It is, accordingly, hereby ordered as follows: - (a) The petition bearing CP (IB) 4149/MB/C-II/2018 filed by Abhigyan Developers Private Limited the Financial Creditors, under section 7 of the IBC read with rule 4(1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 for initiating Corporate Insolvency Resolution Process (CIRP) against Shreepati Build Infra Investment Limited [CIN: U70109GA2012PLC007213], the Corporate Debtor, is admitted. (b) There shall be a moratorium under section 14 of the IBC, in regard to the following: (i) The institution of suits ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 of the IBC. (g) During the CIRP Period, the management of the Corporate Debtor shall vest in the IRP or, as the case may be, the RP in terms of section 17 of the IBC. The officers and managers of the Corporate Debtor shall provide all documents in their possession and furnish every information in their knowledge to the IRP within a period of one week from the date of receipt of this Order, in default of which coercive steps will follow. (h) The Financial Creditor shall deposit a sum of ₹ 2,00,000/- (Rupees Three Lakhs only) with the IRP to meet the expenses arising out of issuing public notice and inviting claims. These expenses are subject to approval by the Committee of Creditors (CoC). (i) The Registry is directed to communicate this Order to the Financial Creditor, the Corporate Debtor and the IRP by Speed Post and email immediately, and in any case, not later than two days from the date of this Order. (j) A copy of this Order be sent to the Registrar of Companies, Maharashtra, Mumbai, for updating the Master Data of the Corporate Debtor. The said Registrar of Companies shall send a compliance report in this regard to the Registry of this Court within seven ..... X X X X Extracts X X X X X X X X Extracts X X X X
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