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TMI Blog2022 (7) TMI 658X X X X Extracts X X X X X X X X Extracts X X X X ..... onsideration to be paid by the applicants who booked their flats. With a view to give life to the dead claims of the applicants, most of whom were known to or related to the said Director, this application has been filed at the behest of the said Director Mr. Prabhash Chandra in collusion with all these applicants for mutual vested interest. The Corporate Debtor has placed before us the detailed facts and submitted that a petition C.P No. 92/2021 under section 241-242 of the Companies Act is also pending before this bench between the parties. If we exclude the time barred claims of the applicants, this petition is even otherwise not maintainable being below the threshold limit. The basic principle of law under the Indian Contract Act, 1872 is that, the parties to the agreement are equally bound to perform their respective parts and if a party does not perform its part, it cannot ask the other party to play its corresponding duty or part. The applicants in this matter have deposited the 10% amount or even loss with the Corporate Debtor pursuant to the agreement between them and except for the letter dated 28th May, 2018 which is disputed by the Corporate Debtor as having been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded to the owner s personal use and the rest 35 flats will belong to the developer which will further be sold to individuals for residential purpose. Further, the developer promised to complete the said Multi Storied residential property within 30 months with further extension of 6 months from the registration of the development agreement i.e.11.04.2015. Copy of the Development Agreement executed between Respondent No.1 and the land owners i.e. Lalmati Devi and Sheo Balak Prasad is annexed as Annexure-FC-3. 5. It is submitted that the Corporate Debtor made numerous representations through Newspaper advertisements publishing brochures, site maps: and also through property agents for sale of units for the said housing project. The Corporate Debtor made extensive promises of developing a township with the High Class Facilities with respect to quality of construction and provisions of various utility services to be part of said project. 6. It is submitted that on believing the said assurances, the Corporate Debtor through its director entered into Agreement for purchase of residential flat with numerous allottees /applicants on different dates. Clause 16 of the said Agreement for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and therefore, in these adverse condition of the company, no further development in the construction of the multi storied apartment project can be carried out, so as to safeguard the buyer s investment. 12. It is submitted that as per the Agreement for purchase of flat with the builder, possession was to be delivered to the allottees/applicant within 36 months from start of the construction at site i.e. in the year January, 2016. That the said period of 36 months got over on January, 2019 but the Corporate Debtor nevertheless failed to deliver the possession of the said units in the housing project leading to severe financial crisis as well as mental harassment to the Financial Creditor. 13. It is submitted that after the receipt of the aforesaid letter dated 01.02.2017 from Respondent No.1, the land owners along with other buyers /allottees wrote various letters to the Board of Director of the Corporate Debtor to enquire about the status of the construction of the multi-storied housing project and how long will the construction work take due to the internal dispute of management. The buyers/allottees further stated that if the possession of the Sarthak Park would not be hand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate Debtor various times to enquire about the handing over of the possession of the flats or to return their money back but the Corporate Debtor did not pay any heed to the request of the Buyers/allottees. The Corporate Debtor did not function well due to their internal disputes and stopped the construction of the said project abruptly. 18. It is submitted that the recent photographs of the project show that no work activity is going on at the project site since for last more than 2 years. The Corporate Debtor has abandoned the Housing project and no one is there at the project site to respond. The Financial Creditor suffered huge loss of interest and mental agony as neither they are able to utilize their hard earned money nor the property in question was timely handed over to them. There is no probability that the flats would be handed over to the Financial Creditor in the near future. 19. It is submitted that due to the delay in handing over the project, all the residential members of Sarthak Park Project consented to form a society in the name of Sarthak Park Consumer Welfare Society with the primary objective to develop the land of the society and complete the pending ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7.2011 and 20.02.2012 and the project of development of a multi storyed building complex thereon in the name and style of Sarthak Park after sanction of the map vide file no. BD 139/ 2020 on 16.01.2013. 25. It is submitted that initially, after the business had started and the residential project gained its pace, from time to time, Corporate Debtor invested a sum of Rs.2,12,30,000/- from the year 2011 to 2016 on several occasions and as per the demand and request of the other Director namely Mr. Prabhash Chandra, upon his persuasion. During the course of business an amount of Rs. 65,00,000/- was returned to him thereby, an amount of Rs. 1,47,30,000/- is stated to be still outstanding and payable by the other director namely Mr. Prabhash Chandra to me. The development project continued only with such loan and/or investment which was agreed between them to be refunded to with interest from the income of the project. 26. It is submitted that upon mutual discussion and arrangements between the two directors, the Corporate Debtor was incorporated under the provisions of the Companies Act, 1956, having its registered office at HE-6, City Centre Sector-4,Bokaro Steel City, Jharkha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2016 has forwarded the bank statements for the period 07.09.2011 till 10.10.2016, whereas the bank statements shows that an amount of Rs. 30,20,000/- was transferred by the other director to his own proprietorship firm namely Gigat Co. and another sum of Rs.4,93,000/- was transferred by him in to his own personal account as well as his wife s account. 30. It is submitted that by that time disputes and differences cropped in between the Directors as Mr. Srivastava was not getting any proper accounts and audit reports and could easily sense the malfunctioning and/or mismanagement by the other Director namely Mr. Prabhash Chandra, and upon confrontation, it was mutually decided that the project would be handed over to another development company namely Yuvi Heights Infrastructure. 31. It is submitted that to hide the mismanagement and malfunctioning of the affairs of the company and to distract the position the other Director Mr. Prabhash Chandra, by letter 14.11.2016 and 15.11.2016 wrongly and/or fraudulently made allegations against him of not showing the interest in day to day affairs of the operation of the Corporate Debtor and unilaterally scheduled meeting of Board of Di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chandra and made it clear that the Board meeting will remain suspended till the records and documents are provided to him as per his requisition in several earlier representation. 37. During the course of arguments, Ld. Counsel for the Financial Creditor submitted that this petition has been preferred jointly by more than 10% of the total number of such 37 residential allottees, who have been allotted residential flats vide agreement for purchase of flat with builder under the same real estate project Sarthak Park as all the Members have given consent for initiation of Corporate Insolvency Resolution Process against the Corporate Debtor. It is submitted that this application is maintainable and valid even if the Corporate Debtor Corporate Debtor has been struck off, in terms of landmark judgment passed by Hon ble NCLAT in the matter titled as Hemang Phophalia vs. The Greater Bombay Cooperative Bank Limited and Anr. And Elektrans Shipping Pvt. Ltd. Vs. Pierre D Silva Anr. wherein it was held that in view of the provisions of Section 250(3) read with Section 248(7) (8), an application under section 7 and 9 will be maintainable against the Corporate Debtor even if the na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which is uncertain and an absurd ground. The Corporate Debtor has twisted the material facts with mala fide intention. It is submitted that the Corporate Debtor has intentions to cheat the applicants from the very beginning due to which the applicants have suffered losses, damage etc. 40. Ld. Counsel for the Corporate Debtor, however submitted that one of the Directors of the Company. Mr. Prabhash Chandra had approached the other director namely Rakesh Ranjan Srivastav to invest funds into real estate business and ultimately M/s Shayma Bhagwati Infrastructure Private Limited was incorporated on 8th July,2011 before the Registrar of Companies, Bihar and Jharkhand. 41. It is submitted that Mr. Prabhash Chandra with a planful misrepresentation and false assurance persuaded the other director Mr. Srivastava to form company with him as the other co-director. It is submitted that Mr. Srivastava has his other business and residence at Nagpur, Maharashtra and was not in a position to look after day to day affairs of the Corporate Debtor and it was mutually decided that Mr. Prabhash Chandra would look after the day to day affairs of the business, maintain the accounts and look after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30,20,000/- to his personal proprietorship firm namely Gigat Co. and a sum of Rs. 4,93,000/- to his wife s account. 47. It is submitted that by a letter dated 28th December, 2016 Mr. Srivastava called upon Mr. Prabhash Chandra to render true accounts of the Corporate Debtor with all books of accounts containing cash books, bank books journals, invoices, bills, vouchers etc., the forms submitted to the Registrar of Companies, income tax returns, and audited reports since its inception with copies forwarded to Registrar of Companies and various other authorities. 48. It is submitted that seeing no other alternative to stop the other Director Prabhash Chandra from siphoning off the funds of the project, Mr. Srivastava vide a mail dated 29th December, 2016 requested the IDBI bank to block the current account of the corporate debtor and on the basis of his request, the bank authorities freezed the account. 49. It is submitted that as the affairs of the Corporate Debtor are in disputed state and no functions are being carried on vide a mail dated 1st January, 2017 a notice was sent to the Registrar of Companies and other authorities with a copy marked with the other Director Pra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led for registration of the flat only after the payment of 10% of the sale consideration of the flat which would itself show that the agreements are all sham documents prepared at the instance of the other Director namely Prabhash Chandra in connivance with the applicants and the said clause itself is opposed to public policy and contradiction to the statute and laws of the land. 56. It is submitted that purported letter dated 1st February, 2017 was never issued to any of the applicants and even if for the sake of arguments, it is admitted that such purported notice was issued, it was issued unilaterally and arbitrarily by the other Director Prabhash Chandra behind the back of Mr. Srivastava, in a most illegal and unlawful manner and it palpably shows the nexus and connivance between the Director Prabhash Chandra and the applicants in the present case. 57. It is submitted that no legal notice (Annexure FC/13) was ever received by Mr. Srivastava at any point of time and all the notices were issued with common object and intention to take over the project work from the Corporate Debtor and to proceed with the construction work by the other Director Prabhash Chandra. It is submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esult no fingers or questions will be raised on conspirator Prabhash Chandra for handling funds and manipulating accounts of the company arbitrarily and there will be no question of returning of Rs.1,47,30,000/-, the investment of the answering director. When Company s Bank Account was Operative from 07.09.2011 to 28.12.2016, then Prabhash Chandra has collected cash of approx. 76 Lakhs from the customers no amount either in cash or by cheque has been paid by any customer after 28.12.2016. Construction at site was stopped from April, 2016, even then Prabhash Chandra went on collecting cash from the customers and never discussed/informed about the cash collection to the answering director. 61. In the light of the recent judgment passed by the Hon ble Supreme Court on 14th August, 2020 in Babulal Vardharji Gurjar Vs Veer Gurjar Aluminium Industries Pvt. Ltd., the individual claims of the applicant in the instant application are well barred by the law of limitation and cannot be extended in view of the reference to the principal of acknowledgement as purportedly claimed in the instant application. 62. It is submitted that the Hon ble Apex Court on various occasions has held, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on amount of flat sale excluding the initial payment amount and booking amount in the following manner:- (i) 10 percent at the time of foundation. (ii) 10 percent at the time of tie beam. (iii) 10 percent at the time of First roof casting (iv) 10 percent at the time of Second roof casting (v) 10 percent at the time of Third roof casting (vi) 10 percent at the time of Fourth roof casting (vii) 10 percent at the time of Fifth roof casting (viii) 10 percent at the time of brick work . 66. It is surprising to note that none of these applicants have made the payment adhering to this term of the agreement. The total consideration for the said flat was between 17 lakh to 20 lakhs, some of them have not even paid 10% of the price. After paying the booking amount, all of them had gone into deep slumber and did not deposit the remaining amount of purchase price as agreed in the agreement. Nor did they claim refund of the said amount. And finally it is clear from the record that due to the disturbance between the Directors, the Project had been deserted for quite a long time. With a view to give life to the dead claims of the applicants, m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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