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2021 (5) TMI 112 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - Applicants are ‘decree holders’ and not as allottees in a real estate project - project is a joint venture by the Corporate Debtor and M/s. Cherupushpam Films (P) Ltd - Time limitation - HELD THAT:- In the decision of Hon’ble NCLAT in the matter of Innoventive Industries V. ICICI Bank &another [2017 (9) TMI 58 - SUPREME COURT], it is held that for initiation of CIRP under Sub Section 4 of Section 7 of the Code,2016, the adjudicating authority’ on receipt of application under Sub Section (2) is required to ascertain existence of default from the records of Information Utility or on the basis of other evidence furnished by Financial Creditor under Sub Section 3. Whether the Application was filed under Section 7 of I&B Code,2016 by the Applicants in the capacity of Allottees of Apartments or on the basis of Arbitral Award as Decree Holders? - HELD THAT:- If the builder fails to deliver the possession of the real estate project, they agreed to pay penalty of ₹ 25/- per square feet to the Applicants. Here, the debt was disbursed against the consideration for the time value of money which includes an amount raised from an allottees under a real estate project, and this transaction has the commercial effect of a borrowing. Whether the Application is barred by limitation? - HELD THAT:- The Applicants have entered into an Agreement of Sale and subsequently sale deed was also executed, which has occurred over three years prior to the date of filing of this Application. In the present case, the Corporate Debtor has not delivered the possession of the real estate property. The default has committed only when possession was scheduled to be delivered. Since the default had occurred over three years before the date of filing of Section 7 Application, the Application is a time barred Application. Whether the Application is maintainable against the Corporate Debtor/builder alone since the project is a joint venture by the Corporate Debtor and M/s. Cherupushpam Films (P) Ltd? - HELD THAT:- Both the parties would be jointly responsible for and participate in the construction or development. The terms and conditions with respect to institutional areas and common areas also reflect that the cost would be shared between both the parties at the rate of 60 and 40 substantiates that it is a ‘Joint Venture’ Agreement. Thus the Agreement entered between the Corporate Debtor and M/s. Cherupushpam Films Pvt Ltd dated 08.12.2003 reflects a commercial transaction in the nature of a ‘Joint Venture’ wherein there is division of profits - this Tribunal observe that in such kind of a Joint Venture Project, both the parties, if they are a Corporate should be jointly treated to be one for the purpose of initiation of CIRP. The Applicants have failed to succeed in this Application - Application dismissed.
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