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TMI Blog2020 (3) TMI 1054X X X X Extracts X X X X X X X X Extracts X X X X ..... te debtor"). 2. The corporate debtor, namely, M/s. Golden Peacock Residence P. Ltd. (CIN U70109DL2012PTC230637) was incorporated on November 22, 2011 under the provisions of the Companies Act, 1956. The registered office of the corporate debtor is situated at Unit No. 502, Building D-Mall, Netaji Subhash Place, Pitampura, New Delhi-110 034. Its authorized share capital is Rs. 10,00,00,000 and the paid-up share capital is Rs. 10,00,00,000 as per the master data reflected on official website of the Registrar of Companies. Since the registered office of the corporate debtor is situated in New Delhi, this Tribunal has territorial jurisdiction to entertain and try this application as per the provisions of sub-section (1) of section 60 of the Code. 3. It is the case of the applicant that the corporate debtor launched its residential project by the name of "Micheal Schumacher World Tower". The applicant placed booking for a flat in the said project on August 16, 2012 and was allotted a unit bearing No. 1801, located on 18th floor (admeasuring 4,127 sq.ft.) on payment of booking amount of Rs. 30,00,000 (rupees thirty lakhs only) that was paid by cheques bearing No. 009042 for Rs. 5,00,00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orate debtor issued NOC in favour of PNB Housing Finance Ltd., to enable the applicant to avail housing loan and in pursuance of the same a tripartite agreement dated October 3, 2013 was executed between the applicant, PNB Housing Finance Ltd., and the corporate debtor. 8. It is further submitted by the applicant that even after receiving all payments as demanded, the corporate debtor has miserably failed to honour the terms and conditions as stipulated under the flat buyer's agreement dated February 26, 2013 and has failed to deliver the possession of the flat to the applicant till date despite receiving the consideration amount of Rs. 2,93,66,813 (rupees two crores ninety three lakhs sixty six thousand eight hundred and thirteen only). 9. As per the said flat buyer's agreement, the corporate debtor was to hand over the possession of the said unit to the applicants within 36 months of booking date, i. e., on or before February 25, 2016 with further grace period of six months, i. e., latest by July 26, 2016 which has also expired. The relevant clauses of the abovementioned agreement are reproduced as follows : "12. Time of handing over the possession.-The company shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and six hundred and thirty three only) and a further amount of Rs. 1,23,810 per month. Date of default is 26-07-2016, i. e., the date by which the possession of the unit allotted as per the allotment letter was to be handed over in terms of the flat buyer's agreement. 12. The corporate debtor has opposed the admission of the application and has advanced the following arguments : (i) As per the flat buyer agreement dated February 26, 2013 the corporate debtor was entitled to reasonable extension of time if the delay caused was due to force majeure factors. Clause 28 of the said agreement which talks about "Force Majeure factors" is reproduced below : "The company shall not be liable or responsible for damages or in any manner whatsoever to the allottee(s) for failure or delay to per form or fulfil 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rporate debtor has miserably failed to complete the project on time. There is an inordinate delay, leading to a default on the part of corporate debtor and thus debt is due from the corporate debtor. 14. Before embarking upon the legal issues, we deem it appropriate to first refer to the material clauses of the allotment agreement. According to clause 12 of the agreement, the corporate debtor undertook to hand over the possession of the said unit to the applicants within 36 months of booking date with a grace period of six months, subject to Force Majeure factors. Hence, as per the terms of agreement, the period for delivery of possession of the said unit came to an end in the July, 2016. A reasonable period of delay of six months to one year even if it is to be considered, corporate debtor has not 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 determi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the present application the financial creditor is seeking initiation of corporate insolvency resolution process by making prayer that all the financial creditors, operational creditors and other stakeholders may raise their claims and if corporate financial restructuring is possible then within the stipulated period it may be explored failing which the due process of law is to take its course. Therefore, by initiation of corporate insolvency resolution process the financial creditor is only highlighting the default committed by the corporate debtor with respect to its inability to pay. The same is required to be remedied. Therefore, it cannot be concluded that the filing of the present application would amount to recovery of the debts by the financial creditor. 19. As a sequel to 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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