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2021 (4) TMI 893 - Tri - Insolvency and BankruptcyMaintainability of petition - estoppel from invoking provisions of Code again when they have already invoked provisions of Code by filing Company Petition earlier against Pro forma Respondent - HELD THAT:- By reading of the provisions of Section 60(5) of IBC Code, it is clear that the above provision enables parties to file Misc. Application(s) or proceedings by or against Corporate Debtor or Corporate Persons. It does not entitle a party to file a fresh Company Petition to initiate Group Insolvency as sought for in the instant Petition. Moreover, the Association has already moved against main Corporate Debtor by inter alia contending that it is the responsibility of Holding Company to get constructed promised houses as per Agreements through its alleged Subsidiary namely M/s. Ithaca Estates India Pvt. Ltd. While initiating CIRP, one of the criteria is solvency of CD apart from debt and default in question. It is settled position of law that the provisions of the Code cannot be invoked for recovery of outstanding amount, and it cannot be misused to drop curtain on healthy organisation. The Project Skylark Ithaca is being developed by Ithaca Estates Private Limited (IEPL). Even in CIRP initiated in respect of Skylark Mansions Pvt. Ltd., the Resolution Plan proposed by Resolution Applicant is subject to contribution of ₹ 1250/- per sq. ft. only from each customer in order to complete Skylark Ithaca Project. Therefore, it shows, the Corporate Debtor is in a position to complete the project in question - Corporate Debtor, prima facie appears to be solvent Company, which cannot be subjected to insolvency proceedings and it should be given one more opportunity to fulfill its obligations to various Home Buyers, who have substantially contributed to get their flats. The Petitioner has failed to make out even prima facie case so as to initiate CIRP as prayed for - Petition dismissed.
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