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TMI Blog2018 (6) TMI 1701X X X X Extracts X X X X X X X X Extracts X X X X ..... reditor and counsel for the corporate debtor and perused the record. 3. The operational creditor has claimed an outstanding debt totalling Rs. 28,40,21,459 being a sum of Rs. 27,69,21,200 payable as principal amount and Rs. 71,00,259 being the interest amount payable on January 16, 2018. The detail of which has been given in Form 5. 3. The brief facts of the case are that a joint development agreement (hereinafter referred to as "JDA") dated, November 9, 2015 was entered into between the owners of the land including the corporate debtor, viz., M/s. Sameeraa Foundations P. Ltd., and the operational creditor, viz., M/s. BBCL Properties P. Ltd. As per the JDA, the land parcels admeasuring to an extent of 52.55 acres situated at Vengambakkam Village, Tambaram Taluk, Kancheepuram District morefully described in annexure I of the JDA referred to as the "schedule property" was given to the operational creditor for development and the parties have agreed that the representations specified in recitals A and B form the fundamental criteria on the basis of which the parties have agreed to proceed with the joint development of the schedule property. The following are the main conditions of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m whichever is earlier." 5. It is interesting to note that the parties to the JDA did agree that in the event of either of the parties hereto committing any breach of the terms contained in the JDA, the other party shall be entitled to have this JDA specifically performed through mode of arbitration and the party committing the breach shall be liable for losses and damages which the other party may suffer on this account. 6. Initially, the term of the JDA was to expire on March 31, 2017. However, the parties have entered into a supplementary agreement for extension of the period of JDA, vide letter of extension dated February 6, 2017, the copy of which is placed at pages 90 to 92 of the typed set filed with the application, the parties have mutually decided that the time limit for sale shall be up to December 31, 2017. It has been recorded in the letter of extension dated February 6, 2017 that in the event if the developer is not able to complete the transaction within the time limit of December 31, 2017 then the said joint development agreement dated November 9, 2015 and supplementary agreement dated February 6, 2017 and other writings related to the project shall stand cancelle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere required to make payments within 15 days without requiring any notice, and for any amount outstanding beyond the said 15 days, the operational creditor shall be entitled to compound interest at 18 per cent. per annum. 8. The operational creditor issued a demand notice dated March 8, 2017 under section 8(1) of the I and B Code, 2016 to the corporate debtor, which provides the details of the outstanding debt claimed and the date on which the default occurred, etc., the copy of which is placed at pages 198 to 203 of the typed set filed with the application, to which the corporate debtor has given reply on March 21, 2018 the copy of which is placed at pages 204 to 213 of the typed set filed with the application. In the reply, the corporate debtor has referred to the terms and conditions of the agreement/letter of extension and has recorded that the operational creditor has not completed the project in accordance with the joint development agreement. However, it has been admitted that the operational creditor has completed only 10 per cent., an insignificant portion of the work, and the claim of the operational creditor was not admitted. 9. It is interesting to note that under par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... btor has not taken any step after completion of the term of the JDA either to make payment or to make any communication till the receiving of the notice under section 8(1) of the I and B Code, 2016, which has been sent to the corporate debtor on March 8, 2018. It appears that the corporate debtor has come up with a frivolous defence after receiving notice under section 8(1) of the I and B Code, 2016 and has not made any payment/communication to the operational creditor as was envisaged as per the terms and conditions of the JDA more particularly, as per second para of clause 8.2 of the JDA referred to hereinabove. 12. In the light of the facts and circumstances recorded above and the sub-missions made by learned senior counsel for the operational creditor and counsel for the corporate debtor, it is safely concluded that the corporate debtor has defaulted in making payments to the operational creditor. 13. The operational creditor has complied with section 9(3)(b) and (c) of the I and B Code, 2016, by filing affidavit, which is placed at pages 12 to 15 of the typed set filed with the application, wherein under paragraph 4, it has been deposed that the stand taken by the corporate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecommended by the IBBI. There is no disciplinary proceedings pending against the IRP and his name is reflected in IBBI website. The IRP is directed to take charge of the corporate debtor's management immediately. The IRP is also directed to cause public announcement as prescribed under section 15 of the I and B Code, 2016, within three days from the date the copy of this order is received, and call for submissions of claim by the creditors in the manner as prescribed. 18. The IRP shall comply with the provisions of sections 13(2), 15, 17 and 18 of the Code. The directors of the corporate debtor, its promoters or any person associated with the management of the corporate debtor are/is directed to extend all assistance and cooperation to the IRP as stipulated under section 19 for the purpose of discharging his functions under section 20 of the I and B Code, 2016. 19. The operational creditor and the registry are directed to send the copy of this order to IRP with immediate effect, so that he could take charge of the corporate debtor's assets, etc., and make compliance with this order as per the provisions of the I and B Code, 2016. 20. The registry is directed to communica ..... X X X X Extracts X X X X X X X X Extracts X X X X
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