TMI Blog2020 (3) TMI 1054X X X X Extracts X X X X X X X X Extracts X X X X ..... applicant-financial creditor had disbursed the money to the corporate debtor as consideration for purchase of a residential unit. Though a considerable long period has lapsed and the said possession of unit is not handed over, it is accordingly held that corporate debtor has committed default. The outstanding financial debt exceeds the statutory limit of rupees one lakh, thus, the application warrant admission as it is complete in all respects. Accordingly, in terms of section 7(5)(a) of the Code, the present application is admitted. Application admitted - moratorium declared. - Company Petition (IB) No. 1591/(PB)/2018. - - - Dated:- 6-11-2019 - M. M. Kumar C.J. (RETD.) And Dr. Deepti Mukesh (Judicial Member) For the Applicant : Vipul Srivastav , Rajendra Vats and Siddharth Masson For the Respondent : Anand Chibber , Senior Advocate with Vaibhav Sahni and Shikhar Sarin JUDGMENT DR. DEEPTI MUKESH (JUDICIAL MEMBER). - 1. The present application is filed by a home buyer Shri Manjinder Singh Sandhu, R/o D-1602, Tower D, La Lagune, Golf course Road, Sector-54, Gurugram-122 001 as a financial creditor (for brevity applicant ) under section 7 of the Ins ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present application. On February 26, 2013 flat buyer's agreement was duly executed between the applicant and the corporate debtor. 6. The applicant further states that payments were made as and when demands were raised by the corporate debtor, the details of which are as follows : Date of payment Amount paid (Rs.) Mode of payment Receipt issued by CD 16-08-2012 25,00,000 Cheque No. 507039 Bearing No. 000052, dated 23-08-2012 16-08-2012 5,00,000 Cheque No. 009042 Bearing No. 000053, dated 23-08-2012 23-10-2012 37,50,000 Cheque No. 507048 Bearing No. 000101, dated 23-10-2012 30-09-2013 7,895 Cash Not issued 30-09-2013 61,93,129 Cash Bearing No. 1800000010, dated 11-10-2013 30-09-2013 5,00,000 (to wards insurance) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant clauses of the abovementioned agreement are reproduced as follows : 12. Time of handing over the possession.-The company shall offer possession of the unit within 36 months from the date of execution of this agreement. In case of any delay in such approvals from the competent authority beyond the above expected period, the allot tee(s) hereby agrees for proportionate extension in the said period. The allottee(s) agrees and understands that the company shall be entitled to a grace period of 6 (six) months. 10. The applicant further states that the date of handing over the possession has already lapsed in July, 2016 and there is an inordinate delay in delivering the possession of the said unit for about more than 3 years. Further as per clause 14, if the handing over of possession of the allotted unit is after the expiry of the grace period, the corporate debtor was also liable to compensate the applicant as per the terms described therein. Thus, the applicant in present scenario is entitled to refund of an amount of ₹ 2,93,66,813 along with an amount of ₹ 27,23,820. The applicant is further entitled to an amount of ₹ 1,23,810 for delay of each month on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulfil any provisions of this agreement when such failure or delay is due to reasons beyond the power and control of the company which, inter alia, includes unforeseen circumstances by reason of fire, war, civil commotions, acts of God, acts of Government, terrorism, natural calamities, acts of public authorities, strike, lockout, non-availability of cement, steel or other construction material due to strikes of manufacturers, suppliers, transporters or obligation in any of the approvals from any Authority, including delay in issuance of any certificate/authorizations/approvals, occupation certificate, completion certificate and/or any other certificate as may be required or for any other actions or causes whatsoever, similar or dissimilar, which cannot reasonably be forecast or provided against, and which cannot be overcome by due diligence which shall be informed to the allottee(s) within thirty days of its occurrence. In such event the time for performance shall be extended for the period of the continuance of such inability. In the event any of such cause or causes shall continue for a period of 180 days, the parties hereto shall mutually dis cuss the matter and decide one or th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... established a single reason of Force Majeure to explain delay. However, the facts in the present case shows that the project is not complete till date. There is an inordinate delay of more than 3 years in delivering the possession and the financial creditor-allottee cannot be put to receiving end for the failure of corporate debtor by strict construction that the contract is not determined. In fact, there is a fundamental breach of the terms of the contract by not delivering the possession within the reasonable period. Therefore, we are of the view that by no terms or clauses of the builder buyer's agreement the obligation to deliver possession of the unit within reasonable period could be excluded and the argument advanced on behalf of the corporate debtor is hereby rejected. The possession should have been offered by February, 2016 or maximum by July 2016, failing which, the principal amount along with compensation agreed and penalty for delay per month, has to be refunded by corporate debtor to the applicant. The obligation assumed under the allotment agreement required that the construction was to be completed by February 25, 2016. There was grace period of six months which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the aforesaid discussion and the material placed on record it is confirmed that the applicant-financial creditor had disbursed the money to the corporate debtor as consideration for purchase of a residential unit. Though a considerable long period has lapsed and the said possession of unit is not handed over, it is accordingly held that corporate debtor has committed default. The outstanding financial debt exceeds the statutory limit of rupees one lakh, thus, the application warrant admission as it is complete in all respects. Accordingly, in terms of section 7(5)(a) of the Code, the present application is admitted. 20. The financial creditor has proposed the name of resolution professional, Mr. Jitesh Gupta, e-mail id : jitesh@jkgupta.com and registration No. IBBI/ IPA-002/IPN00144/2017-18/10380, is appointed as an interim resolution professional. A written communication of insolvency resolution professional in Form 2 is annexed. 21. In pursuance of section 13(2) of the Code, we direct that interim insolvency resolution professional to make public announcement immediately with regard to admission of this application under section 7 of the Code. The expression immediately ..... 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