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2019 (11) TMI 1591 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - time limitation - existence of default or not - efficacious remedies are available to the financial creditors or not. Time limitation of application - HELD THAT:- It is noted that various communications have been sent by the corporate debtor to the financial creditors by which the rights and the claims of the financial creditors are confirmed. In this connection, a reference may be made to the communication dated December 20, 2016 sent by the corporate debtor to the financial creditors for deposit of the amount of VAT of ₹ 3,00,615. Further, on December 22, 2016 an e-mail was sent by the corporate debtor to the financial creditors attaching the statement of account for the unit allotted to the financial creditors. There is another communication sent by the corporate debtor to the financial creditors on March 5, 2019 with the request to collect the refund cheque for an amount of ₹ 1,51,34,908. In view of these communications, the application is not barred by limitation - issue decided in favour of the financial creditors and against the corporate debtor. Whether the financial creditors have defaulted in making the payments? - HELD THAT:- On perusal of the record placed on file, the financial creditors have paid an amount of ₹ 2,75,55,186 against the total sale consideration of ₹ 3,80,10,000 against the subject property, which is a substantial payment. However, due to non-performance of the corporate debtor the balance payments were not made by the financial creditors, as the corporate debtor failed to honour the commitment in terms of the agreement, which provides that the possession of the subject property was to be handover to the financial creditors by first week of February 2016. In view of it, the financial creditors cannot be said to be defaulters - the issue stands decided in favour of the financial creditors and against the corporate debtor. Whether other efficacious remedies are available to the financial creditors? - HELD THAT:- Learned counsel for the financial creditors has referred to the judgment of the hon'ble apex court given in Pioneer Urban Land and Infrastructure Ltd. v. Union of India [2019 (8) TMI 532 - SUPREME COURT], wherein it was observed that the remedies available under the Code, Consumer Protection Act, and RERA are concurrent remedies. Therefore, the financial creditors are not legally barred to invoke the provisions of the IBC, 2016 in the case on hand - the issue is decided in favour of the financial creditors and against the corporate debtor. Thus, the corporate debtor has not handed over the possession of the subject property to the financial creditors, as the construction work could not be completed within the stipulated time and there is no proof for extension of time by the concerned authority. Therefore, there is debt, due and payable, which the corporate debtor failed to pay. Thus, the default on the part of the corporate debtor is ascertained based on the documentary evidenced placed on record by the financial creditors - the application of the financial creditors is complete in all respect. Application admitted - moratorium declared.
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