9911796707
TMI Blog2019 (9) TMI 1690X X X X Extracts X X X X X X X X Extracts X X X X ..... tructure Limited (CIN U45201 DL2003 PLC120136) against whom initiation of Corporate Insolvency Resolution Process has been prayed for, was incorporated on 01.05.2003 under the provisions of the Companies Act, 1956. The registered office of the respondent corporate debtor is situated at Office No. 208-210, Rectangle - 1, D-4, Saket, New Delhi - 110017.. Since the registered office of the respondent corporate debtor is in Delhi, this Tribunal having territorial jurisdiction over the place is the Adjudicating Authority in relation to the prayer for initiation of Corporate Insolvency Resolution Process in respect of respondent corporate debtor under subsection (1) of Section 60 of the Code. 3. It has been submitted in the application that the applicant financial creditor had invested in the project "ABW Gateway Tower". The return on investments were to occur by way of monthly assured returns and thereafter, lease rent arising out of the proposed office space to be allotted and delivered and transferred in the name of the investor by the corporate debtor. 4. Both the parties signed Memorandum of Understanding dated July 12, 2011 for an investment in the project "ABW Gateway Tower" and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... btor was filed on 04.06.2018 mainly denying the liability and disputing the agreements relied upon by the applicant as manipulated documents. 13. It is relevant to note here that respondent company, M/s. ABW Infrastructure Limited was ordered to be wound up by the Hon'ble High Court of Delhi vide order dated 29.05.2018 passed in C.P. 449/2016 and the Official Liquidator was appointed as the provisional Liquidator of the respondent company (in liquidation). However the order appointing the Official Liquidator was suspended for a period of four weeks, making it clear that in the event the payments as directed in the order were not made within a period of four weeks, the order appointing the Official Liquidator, was to become operational. Thereafter respondent company failed to comply with the directions of the Hon'ble High Court and the order appointing the Official Liquidator as the provisional Liquidator became operational since 29.06.2018. 14. The Official Liquidator of the respondent company (in liquidation) has filed the status report on 02.04.2019. 15. It is thus seen that during pendency of the present Section 7 application filed under the Code, winding up order has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 91,54,819/- disbursed through four RTGS transactions during July 2011. Besides MoU and buyer's agreements were executed between the parties in the year 2011. The applicant was allotted Unit No. 306 & 307 with super area of 3500 sq. ft. at 'Gateway Tower'. The applicant therefore comes within the definition of home buyer. Besides as per the agreement the respondent was liable to pay assured return. The loan was disbursed against the consideration for time value of money with a clear commercial effect of borrowing. Moreover, the debt claimed in the present application includes both the component of outstanding principal and interest. In that view of the matter not only the present claim comes within the purview of 'Financial Debt' but also the applicant bank can clearly be termed as Financial Creditor' so as to prefer the present application under Section 7 of the Code. Respondent has defaulted in paying the assured returns nor has handed over the possession of the units to the applicant. Moreover, the winding up order passed against the respondent company itself, is a record of default by the respondent corporate debtor. As per the Explanation to sub- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igned a communication dated 13.10.2018 in FORM 2 in terms of Rule 9(1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. There is a declaration made by him that no disciplinary proceeding is pending against him in Insolvency and Bankruptcy Board of India or elsewhere. In addition, further necessary disclosures have been made by Mr. Anand Chandra Swain as per the requirement of the IBBI Regulations. Accordingly, he satisfies the requirement of Section 7(3) (b) of the Code. 28. It is reiterated that the Form-1 filed in the present case under Section 7 of the Code read with Rule 4 of the Rules, shows that the Form is complete in all respect and there is no infirmity in the same. 29. In the present case financial debt is outstanding since December 2014. Neither the possession of the flats has been given to the petitioners nor has the Corporate Debtor returned even the amounts collected from the petitioners since the year 2011. There is sufficient material on record to conclude that respondent corporate debtor has committed default in repayment of the financial debt. The amount of default exceeds much more than Rupees 1 lakh. The threshold limit to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterim Resolution Professional namely Mr. Anand Chandra Swain to meet out the expenses to perform the functions assigned to him in accordance with Regulation 6 of Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Person) Regulations, 2016. The needful shall be done within three days from the date of receipt of this order by the Financial Creditor. The said amount however be subject to adjustment towards Resolution Process cost as per rules and shall be paid back to the Financial Creditor. 34. In pursuance of Section 13(2) of the Code, we direct that public announcement shall be made by the Interim Resolution Professional immediately (3 days as prescribed by Explanation to Regulation 6(1) of the IBBI Regulations, 2016) with regard to admission of this application under Section 7 of the Insolvency & Bankruptcy Code, 2016. 35. We also declare moratorium in terms of Section 14 of the Code. The necessary consequences of imposing the moratorium flows from the provisions of Section 14(1) (a), (b), (c) & (d) of the Code. Thus, the following prohibitions are imposed: "(a) the institution of suits or continuation of pending suits or proceedings against ..... X X X X Extracts X X X X X X X X Extracts X X X X
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