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TMI Blog2018 (11) TMI 1664X X X X Extracts X X X X X X X X Extracts X X X X ..... imited (CIN No. U 45400 DL 2010 PTC 209159) against whom initiation of Corporate Insolvency Resolution Process has been prayed for, was incorporated on 06.10.2010 having its registered office at D-53, Okhla, Phase-I, New Delhi-110020. Since the registered office of the respondent corporate debtor is in New Delhi, this Tribunal having territorial jurisdiction over the NCT of Delhi 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. 3. It is appropriate to mention that the applicant Indiabulls Housing Finance Ltd (hereinafter referred as IHFL), is a company incorporated under the Companies Act, 1956 and has its Registered Office at M-62 & 63, First Floor, Cannaught Place, New Delhi-110001. 4. The applicant company has filed certified copy of its Board Resolution passed on 7th July, 2017, wherein Mr. Devbrat Mitra, Legal Manager was authorized on behalf of the Company to appear for the applicant company in respect of the cases pertaining to the Insolvency and Bankruptcy Code, 2016. 5. Accordingly Mr. Devbrat Mitra, Legal Manager an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... commencement of the Equated Monthly Instalment (EMI) on the loan amount. It is stated in the application that the Corporate Debtor has made payment of Rs. 1,26,940/- (Rupees One Lakh Twenty Six Thousand and Nine Hundred Forty Only) vide Cheques No. 8323933, 88120 on 29.03.2018 and also payment of Rs. 63,470/- vide Cheque No. 15126159 on 31.05.2018. 9. The applicant has alleged that the borrower and the Corporate Debtor has failed to maintain the financial discipline and have defaulted in the payment of the Pre- EMI interest/EMI in terms of Loan Agreement and Tripartite Agreement. 10. Consequently the applicant financial Creditor has issued notice to the Corporate Debtor for recall of the loan facility, canceling the allotment of the Mortgaged Property and refund of the outstanding amount to the applicant Financial Creditor. 11. In order to appreciate the matter in its proper perspective the demand notice issued by the applicant is reproduced below: To ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... funded by the builder directly to IHFL for appropriation and adjustment by IHFL, against all monies due to it from the Borrower. In view of the above stated facts and circumstances, IHFL, hereby calls upon you to act and make good the agreed terms and conditions of the tripartite agreement/permission to mortgage by way of initiating cancel the allotment and refund the total balance outstanding amount of Rs. 7,522,77651/- (Rupees Seventy Five Lakhs Twenty Two Thousand Seven Hundred Seventy Six and Fifty Five Paisa Only) by way of outstanding principal, arrears (including accrued late charges) and interest till March 5, 2018 along with future interest w.e.f March 6, 2018, under intimation to the borrowers within a period of 15 days from dated of receipt of this notice. The Foreclosure Statement of Account, as on March 5, 2018 is attached herewith as Annexure 'A' for our ready reference and necessary action. In the event of failure to cancel the allotment in favour of Said Allottee(S) and refund the above referred loan amount within the specified time frame, this will be treated as breach of provision of the tripartite agreement. Your early action in the matter will be highly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be refunded back to it by the Corporate Debtor. However, it is submitted that in the present case an apartment No. 1601 at 16th Floor, Block A-1 was allotted to the borrower, wherein 90% construction have already been carried out in the said project and the Corporate Debtor is completely determined to give the delivery very shortly in future. 15. Accordingly in view of the advance stage of construction, it is argued that there is no question of cancellation of the allotment made in favour of the borrower in the real estate project in question. The respondent has referred to Clause 17 of the Tripartite Agreement dated 6th April, 2015 which envisages that in case of any dispute the competent court at New Delhi will have an exclusive jurisdiction to adjudicate upon the disputes. 16. It is also the case of the respondent that the real estate sector in India is under severe financial pressure due to the market conditions. The endeavor of the Corporate Debtor is to complete the project and handover the possession to the buyers, including the present flat buyers. Once the Corporate Debtor hands over the possession of the said Flat to the buyer, the financial creditor, in any case, will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t leave of the borrower/allottee. 23. Before coming to the issue some of the relevant undisputed factors are placed below. 24. Admittedly the borrower/allottee has not been made a party in the present proceedings, nor are the contentions of the borrower on record. 25. Secondly as per clause 10.5 (a) and (b) of the Loan Agreement dated 6th April, 2015 the Flat is insured in favour of applicant IHFL. The said clauses are reproduced below for ready reference: a. To keep alive the Insurance Policy/Policies assigned in favour of IHFL by paying on time the premium as they fall due and produce the receipt to IHFL whenever required; b. IHFL shall have the right to receive and adjust any payment that it may receive in connection with any insurance policy/policies against the loan and alter the amortization schedule in any manner as it may deem fit notwithstanding any thing to the contrary contended in this Agreement or any other document or paper. 26. Thirdly there is no dispute that the flat has been mortgaged with the applicant IHFL. The relevant terms agreed upon in this respect runs as follows: "Whereas the Borrower has agreed to secure with IHFL the said residential apartment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice dated 5th March, 2018, as reproduced at Para 11 above, it is alleged that failure to cancel the allotment has led to breach of the provisions of the Tripartite Agreement. 28. It is appropriate to mention that Clause 4 of the Tripartite Agreement dated 6th April, 2015 envisages as follows: "The Borrower has informed IHFL about the scheme of arrangement between the Borrower and the Builder in terms whereof the Builder hereby assumes the liability on account of interest payable by the Borrower to IHFL during the period to be referred to as the "Liability Period" in terms of 24 months i.e. till 30th April, 2017 and/or any other period as agreed by and between the borrower and the Builder (the Liability period is referred to as "Assumed Liability for the Builder"). It is however agreed that during the liability period the payment of assumed liability is joint and several by and between the Borrower and the Builder. The assumption of liability by the Builder. In no manner whatsoever releases, relinquishes and/or reduces the liability of the Borrower and that same shall not be affected in any manner on account of any difference and/or dispute between the Borrower and the Builder ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ower or in the event of cancellation of the residential apartment for any reason whatsoever, the Builder shall be entitled to deduct/forfeit the earnest money to the extent of 10% of the total cost of the unit and the balance amount shall be refunded by the Builder directly to IHFL forthwith. The Borrower hereby all his rights for refund with respect to the said residential apartment in favour of IHFL." (emphasis given). 33. The aforementioned clauses stipulates refund by builder directly to the applicant lender only in the event of aforesaid three contingencies. None of the three contingencies have since occurred. Therefore, before cancellation (including other eventualities) refund by respondent builder directly to the applicant IHFL does not arise. 34. It is also appropriate to note Clause 13 of Tripartite Agreement dated 6th April, 2015 which reads as under: "That the Borrower agrees that it unconditionally and irrevocable subrogates its right to receive any amount payable by the Builder to the Borrower in the event of cancellation in favour of IHFL and that the act of payment by the Builder to IHFL under this clause shall amount to a valid discharge to builder's obligation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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