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TMI Blog2018 (11) TMI 1411X X X X Extracts X X X X X X X X Extracts X X X X ..... structions Private Limited (CIN U45201DL1999PTC101672) the Corporate Debtor-Respondent was incorporated on 23.09.1999 under the provisions of the Companies Act, 1956. Mr. Sudhir Khurana is a Director of respondent company. The registered office of the respondent corporate debtor is at 413, 4th Floor Naurang House Building, Kasturba Gandhi Marg, New Delhi-110001. 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 sub-section (1) of Section 60 of the Code. 4. The 'Financial Creditor'-Petitioner has proposed the name of Resolution Professional, Shri Alok Kaushik, Flat No. G-105, Sai Baba Apartments, Rohini, Sector-9, Delhi-110085, email id - [email protected]. He has registration No. IBBI/IPA-002/IP-N00253/2017-18/10767. A written communication dated 07.04.2018 sent by him in terms of Rule 9(1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 has also been placed on record (Exhibit-13). There is a decla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purchase thereof by the Allottee (s)." 8. Subsequently memorandum of settlement/understanding dated 28.03.2012 (Exhibit-6) was executed between the Respondent Company and the Petitioner with respect to return of amount as per settlement as a final settlement of all investments made by the Petitioner in the aforesaid project of the Respondent Company in light of the initial Unit Buyer Agreement and Addendum to Unit Buyer Agreement executed in September, 2006. The modified terms mentioned in the memorandum of settlement/understanding dated 28.03.2012 (Exhibit-6), reads as under:- (i) That, M/s. Praveer Constructions Pvt. Ltd. shall pay Rs. 60,00,000/- (Rs. Sixty Lacs only) to Mrs. Usha Devi & Shri Anar Singh as full and final settlement as per schedule. (ii) That M/s. Praveer Constructions Pvt. Ltd. shall allot & handover Physical Possession at first and second Floor admeasuring area 10,000 sq.ft at sub-judice plot no. C-1, Jagatpura, Jaipur, Rajasthan when ever the clear title will be handed our to us by Jaipur Development Authority. (iii) That Mrs. Usha Devi & Shri Anar Singh hereby agrees that all issues/agreements between him and M/s Praveer Constructions P. Ltd. have bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d further interest thereon @ 12% per annum from April 18, 2018 till the date of realization of the amount. 12. The petitioner made various attempts to serve the Respondent firstly by dasti mode and secondly by e-mail address reflected in the master data available at the website of MCA. An affidavit of service to aforesaid effect was also filed by the petitioner which was considered vide order dated 14.06.2018 but inspite of service Respondent have not chosen to appear. Therefore, vide order dated 14.06.2018 we proceeded ex-parte. The aforesaid order is set out below in ex-tenso:- "An affidavit of service filed by the petitioner show that the email has been duly received by the corporate debtor and a copy of the email sent has been placed on record as Annexure-A. The email address is the same which is given in the master data. Despite service no one put in appearance on behalf of the corporate debtor-respondent. Hence, respondents are proceeded ex-parte. List for arguments on 23rd July, 2018." 13. Vide diary No. 6594 dated 12.09.2018 the Petitioner has filed an additional affidavit enclosing various documents (Exhibit A to D) highlighting the acknowledgement of debt of the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary to deal with the issue as to whether the claim of the Petitioner is within the limitation or not. In that regard we may read the provisions of Section 18 of the Limitation Act, 1963 which reads as under:- "Section 18. Effect of acknowledgement in writing.- (1) Where, before the expiration of the prescribed period for a suit or application in respect of any property or right, an acknowledgement of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he derives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgement was so signed. (2) .......................... Explanation.-For the purposes of this section,- (a) an acknowledgement may be sufficient though it omits to specify the exact nature of the property or right, or avers that the time for payment, delivery, performance or enjoyment has not yet come or is accompanied by a refusal to pay, deliver, perform or permit to enjoy, or is coupled with a claim to set-off, or is addressed to a person other than a person entitled to the property or right; (b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of Section 7 (2) and Section 7 (5) of IBC which read as under:- "Initiation of corporate insolvency resolution process by financial creditor. 7(1)........................... 7 (2) The financial creditor shall make an application under sub-section (1) in such form and manner and accompanied with such fee as may be prescribed. 7(3).......................... 7(4) ......................... 7 (5) Where the Adjudicating Authority is satisfied that- (a) a default has occurred and the application under sub-section (2) is complete, and there is no disciplinary proceedings pending against the proposed resolution professional, it may, by order, admit such application; or (b)......................." 18. A conjoint reading of the aforesaid provision would show that form and manner of the application has to be the one as prescribed. It is evident from the record that the application has been filed on the proforma prescribed under Rule 4 (2) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 read with Section 7 of the Code. We are satisfied that a default amounting to lacs of rupees has occurred within the meaning of Section 4 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sal of the aforesaid paragraph of the judgment would show that even without any element of assured return an allottee in the real estate project has to be regarded as a 'Financial Creditor'. The petitioner eminently fulfils the aforesaid condition. 21. In the present case Petitioner had booked a unit on payment of Rs. 60,00,000/- to the respondent corporate debtor. The date of disbursement of the said principal amount including the detail of a unit have been furnished in the application. Respective Unit Buyer Agreement, Addendum to Unit Buyer Agreement and Memorandum of Understanding/settlement executed in respect of a unit have been placed on record, which reveals that the principal amount has been paid by the petitioner and has been received by the respondent corporate debtor. 22. Since the amount has been raised from the petitioner/allottee under a real estate project, not only the debt has a commercial effect of borrowings and come within the scope of 'financial debt' but also the petitioner comes within the definition of 'financial creditor'. 23. Therefore, petitioner being a financial creditor can invoke Corporate Insolvency Resolution Process under Section 7 of the code a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall then communicate the order passed to the financial creditor and corporate debtor within 7 days of admission or rejection of such application, as the case may be." 25. As a sequel to the aforesaid discussion it is seen that the applicant being a home buyer comes within the definition of Financial Creditor. The material placed on record further confirms that applicant financial creditor had disbursed the money to the respondent corporate debtor as consideration for purchase of a unit. Though considerable long period has since lapsed even the principal amount disbursed has not been repaid by the respondent corporate debtor. It is accordingly reiterated that respondent corporate debtor has committed default in repayment of the outstanding financial debt which exceeds the statutory limit of rupees one Lakh. Thus, the application warrant admission as it is complete in all respects. 26. Accordingly, in terms of Section 7(5)(a) of the Code, the present application is admitted. 27. Mr. Alok Kaushik, having registration number IBBI/IPA-002/IP-N00253/2017-18/110767 resident of Flat No. G-105, Sai Baba Apartments, Rohini, Sector-9, Delhi-110085 with e-mail id [email protected] is ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apply at various stages of Corporate Insolvency Resolution Process. His conduct should be above board & independent; and he should work with utmost integrity and honesty. It is further made clear that all the personnel connected with the Corporate Debtor, erstwhile directors, promoters or any other person associated with the Management of the Corporate Debtor are under legal obligation under Section 19 of the Code to extend every assistance and cooperation to the Interim Resolution Professional as may be required by him in managing the affairs of the Corporate Debtor. In case there is any violation committed by the ex-management or any tainted/illegal transaction by ex-directors or anyone else the Interim Resolution Professional/Resolution Professional would be at liberty to make appropriate application to this Tribunal with a prayer for passing an appropriate order. The Interim Resolution Professional/Resolution Professional shall be under a duty to protect and preserve the value of the property of the 'Corporate Debtor' as a part of its obligation imposed by Section 20 of the Code and perform all his functions strictly in accordance with the provisions of the Code. 32. The offi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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