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2019 (9) TMI 1609 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors/home buyers - time limitation - petition filed within the time period fixed under the agreement or not - HELD THAT:- It is evident that the Financial Creditor has chosen to enter into an agreement, for whatever reasons best known to it, in the project, “Kumar Golf Vistas” for a flat. Thereby virtually, making the Financial Creditor as a Home Buyer taking into consideration Sec 5(8) (f) IBC,20 16 read with explanation provided thereunder and enabling it to maintain petition under IBC,2016 as a Home Buyer in case of default on the part of the Corporate Debtor named as the promoter therein. In terms of clause 5(i) of the agreement the promoter was required to complete the building within 12 months from the date of signing the agreement and also providing under clause 5(ii) a grace period of 180 days. The price of the flat namely K-708, under clause 3(a) is fixed as ₹ 49,59,375/- - the wordings in clause 5(ii) clearly evidences that the parties have virtually agreed to appropriate the loan amount granted earlier as the consideration for the flat purchase as otherwise the wordings as extracted above is an anomaly. It is pertinent to note that the execution of the agreement dated 1 October 2016 is not denied by the parties. Hence, considering the said agreement to be the fresh bargain as entered into between the parties thereby giving a go by to the earlier MOUs as well as the loan transaction of ₹ 50 Lakhs. From the records, it is seen that the letter of offer of possession is enclosed dated 7 March 2018 by the Corporate Debtor in its reply. From the terms of the agreement and as given in paragraph supra in relation to time limit for possession to be given, taking into consideration the grace period of 6 months and well as contracted period of 12 months, the possession of flat booked should be given on 1.4.18.(as the agreement dated 1/10/16 stipulated that the possession will be given within 18 months i.e. 12 months plus grace period of 6 months) it is also required to note that the petition was filed on 4.1.2018 well before the period fixed under the agreement dated 1.10.2016. On the date of filing of petition as a (Home Buyer) no default stands established, more so, when the possession also seems to be offered before the completion of the date of possession as given in the agreement - Petition dismissed.
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