TMI Blog2020 (1) TMI 808X X X X Extracts X X X X X X X X Extracts X X X X ..... Smt. Suchitra Kanuparthi, Judicial Member And V. Nallasenapathy, Technical Member Rajnees Agarwal, Adv. for the Petitioner. Zal Andhyanjina, Chirag Kamdar and Abinash Pradhan, Advs. for the Respondent. ORDER Smt. Suchitra Kanuparthi, Shalini Rajesh Baheti and Anr. (hereinafter called 'Petitioners') has sought the Corporate Insolvency Resolution Process against L T Parel Project LLP (hereinafter called the 'Corporate Debtor') on the ground that the Corporate Debtor committed default to the extent of ₹ 11,19,09,171/- (principal amount paid is ₹ 8,59,06,306/- plus interest of ₹ 2,59,02,865/-) as provided under Section 7 of Insolvency and Bankruptcy Code, 2016 (hereafter called the 'Code') read with Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. 2. The Petitioners agreed to purchase and acquired a flat No. T06/1802 admeasuring 1854.51 sq. ft. carpet area along with ancillary areas admeasuring 869.87 on the 18th floor and 1 plus 1 tandem car parking spaces for a lumpsum consideration of ₹ 9,35,56,150/- from the Corporate Debtor. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontrol of the developer and/or omkar; (viii) any restrain and/or injunction and/or prohibition order of Court and/or any other judicial or quasi-judicial authority and/or statutory authority. 5. The Petitioners submit that the Corporate Debtor failed to hand over possession of the said premises on or before 31.01.2019. On 01.02.2019, the Petitioners addressed an E-mail to the Corporate Debtor seeking refund of the amounts paid by them to the Corporate Debtor along with interest and liquidated damages. On 01.03.2019, the Corporate Debtor sent an E-mail to the Petitioners and offered possession for fit out. On 27.03.2019, the Petitioners sent a reminder claiming the refund as per their earlier letter dated 01.02.2019. On 29.03.2019, the Corporate Debtor sent an E-mail to the Petitioners fixing a meeting on 02.04.2019. At the meeting on 02.04.2019, the Corporate Debtor requested the Petitioners to reconsider the cancellation and also offer to change some of the terms of the said agreements, it was also agreed that if the Petitioners did not accept such offer the Corporate Debtor would abide by option exercised by the Petitioner and would refund all the amounts claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrounding the said tower is common. From the date of passing of stay order till execution of consent terms for a period of 6 months, the construction of tower T3 was completely stalled. This unforeseen delay had cascading effect on all the remaining towers specifically the construction and completing of fire fighting Ramp which pass through plot A, was considerably delayed. 8. The completion of Fire fighting ramp around the subject building is the sine qua non for obtaining inter alia:- 1. Completion Certification from license 2. Completion Certificate of Chief Fire Officer, MCGM. 3. Completion Certificate of PMC. 4. Completion Certificate of site supervisor. 5. Completion certificate of PPQA. 6. Completion certificate of architect. 7. Completion certificate of mechanical and electrical works. 8. Structural stability certificate, for the subject building. 9. On 09.08.2017, the Corporate Debtor registered subject building with Maha RERA, the proposed date of completion as shown on the website of the Maha RERA was revised from 31.01.2019 to 30.09.2019 in order to accommodate the delay caused due to operation of stay order. The aforesaid factors affected the construc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtificates for T 1, T4 and T5 was received in March, 2018 itself. The Petitioners further submitted that in view of the failure of the Corporate Debtor to deliver possession, they exercised their right to seek return of money paid together with interest and predefined liquidated damages. 14. The Corporate Debtor also filed sur-rejoinder and denied the allegations made in the rejoinder. They also stated that the list of amenities shall be made available to the Petitioners in accordance with the subject agreement and the Petitioners are not entitled to claim anything de hors the subject agreement. In any case they reiterated that the question as to whether any breach of promises/assurances cannot be decided by the Hon'ble Tribunal. 15. Heard the Counsel for the Petitioners and the Corporate Debtor. The Counsel for the Petitioner reiterated his stand that the delivery of subject flat ought to have been given on or before 31.01.2019, which is after the lapse of 6 months period over and above plus stipulated hand over date which was 31.07.2018. The Corporate Debtor have not offered possession of the said flat on or before 31.01.2019 and as such the Petitioners on 0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the completion of the said unit is delayed on account of any event of force majeure as captured therein. There has been an order of stay granted by City Civil Court Mumbai in May 2017 and the said order was vacated in November 2017. This caused a delay in construction of the said tower 3, which in effect caused delay in construction of Fire fighting Ramp and podium common to all the towers. The flat was offered for possession for fit out on 01.03.2019, the part OC was issued on 09.05.2019. The Corporate Debtor vide Email dated 11.05.2019 intimated the grant of occupation certificate to the Petitioners and on 07.06.2019 the Corporate Debtor informed the Petitioners that the construction of the above building is completed, and the flat is ready for possession subject to following payments before the due date. 19. Therefore, it can be said that there was a deemed automatic extension of time of handing over a subject flat as per the agreed terms and conditions as envisaged under clause 15 (i) of the agreement for sale. The Petitioners are bound by such terms and conditions of the contract, are not entitled to trigger clause 15 (iii) and claim refund of monies paid to the dev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... just as information utilities provide the kind of information as to default that banks and financial institutions are provided under Sections 214 to 216 of the Code read with Regulations 25 and 27 of the Insolvency and Bankruptcy Board of India (Information Utilities) Regulations, 2017, allottees of real estate projects can come armed with the same kind of information, this time provided by the promoter or real estate developer itself, on the basis of which, prima facie at least, a default relating to amounts due and payable to the allottee is made out in an application under Section 7 of the Code. We may mention here that once this prima facie case is made out, the burden shifts on the promoter/real estate developer to point out in their reply and in the hearing before the NCLT, that the allottee is himself a defaulter and would, therefore, on a reading of the agreement and the applicable RERA Rules and Regulations, not be entitled to any relief including payment of compensation and/or refund, entailing a dismissal of the said application. At this stage also, it is important to point out, in answer to the arguments made by the Petitioners, that under Section 65 of the Code, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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