TMI Blog2018 (6) TMI 1701X X X X Extracts X X X X X X X X Extracts X X X X ..... corporate debtor in its reply dated March 21, 2018 is a mere afterthought and as such, none of the claims so made in the reply were ever made prior to the same - The operational creditor has fulfilled all the requirements of law for admission of the application. This authority is satisfied that the corporate debtor has committed default in making payment of the outstanding debt claimed by the operational creditor. Application is admitted and the commencement of the corporate insolvency resolution process is ordered which ordinarily shall get completed within 180 days, reckoning from the day this order is passed - moratorium declared. - C. P. No. 340/(IB)/CB/2018. - - - Dated:- 14-6-2018 - Ch. Mohd Sharief Tariq Judicial Member For the Operational Creditor : P. H. Arvindh Pandian Senior Counsel for Ms. Harishankar Mani and Avinash Krishnan Ravi For the Corporate Debtor : S. Namasivayam and Ms. R. Balambigai Gowri ORDER CH. MOHD SHARIEF TARIQ (JUDICIAL MEMBER).- 1. Under adjudication is C. P. No. 340/(IB)/CB/2018 that has been filed by the operational creditor under section 9 of the Insolvency and Bankruptcy Code, 2016 (in short, I and B Code, 2016 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance 3,20,677 sq.ft. from and out of sale of plots specified under annexure III or at the end of this JDA term whichever is earlier. Taxes like VAT, service tax, etc., shall be charged extra at actuals. (c) In case the development of layout is not carried out by the developer as per the terms and specifications agreed in this JDA and morefully mentioned in annexure 'VI' on or before March 31, 2017 the owners are entitled to reduce the reimbursement development cost proportionately to the extent works carried out by the deve loper. 4. In the light of the above conditions the developer (operational creditor) has made an advance payment of a sum of ₹ 6,41,00,000 as per clause 3.1.11 of the JDA which was to be adjusted for the amounts payable to the owners. The relevant clause is reproduced as under : 3.1.12 The payment made as per clause 3.1.11, the sum of ₹ 6,41,00,000 (rupees six crores forty-one lakhs only) shall be adjusted on amounts payable to the owners in the following manner : (a) ₹ 1,60,25,000 will be paid to developer upon full receipt of sale consideration value equivalent to 1,60,338 sq. ft. out of the annexure III area : (b) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n this account. The parties hereto agree that this agreement and the power of attorney, to be executed in terms of this agreement shall be in full force until March 31, 2017 in case the development and/or sale of plots as detailed in annexure III are pending as on March 31, 2017 all pending plots on that day of March 31, 2017 shall be the property of the land owners and the land owners shall pay the development cost as agreed above in clause 3.1.4 to the developer for such plots. Any amount owed by the owners to the developers that remains unpaid at close of March 31, 2017 shall be paid within 15 days, without requir ing any notice. Any amount outstanding beyond the said 15 days shall be entitled to a compound interest of 18 per cent. per annum. 7. It has been submitted by the learned senior counsel for the operational creditor that as per the terms and conditions of the JDA dated November 9, 2015 and letter of extension dated February 6, 2017 the project has been completed by the operational creditor, but the corporate debtor has not made the due payments to the operational creditor. Learned senior counsel for the operational creditor has further submitted that assuming but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the corporate debtor has also referred to the arbitration clause contained under paragraph 19 of the joint development agreement and has submitted that the operational creditor could have resorted to the option available under the JDA instead of filing the present application under section 9 of the I and B Code, 2016, as there requires a detailed enquiry in the matter in order to determine as to whether or not any amount is outstanding against the corporate debtor. 10. Learned senior counsel for the operational creditor has submitted that the arbitration clause contained in the agreement is not a bar to invoke the provisions of section 9 of the I and B Code, 2016 against the corporate debtor. He has further submitted that soon after completion of the project by the operational creditor, the corporate debtor has issued advertisement in The Hindu, Saturday, February 10, 2018 inviting the customers for sale of plots which the operational creditor has completed. The advertisements are placed at pages 149 to 151 of the typed set filed with the application. Therefore, there appears force in the submissions of learned senior counsel for the operational creditor and hence, the defence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and the commencement of the corporate insolvency resolution process is ordered which ordinarily shall get completed within 180 days, reckoning from the day this order is passed. 15. The moratorium is declared which shall have effect from the date of this order till the completion of corporate insolvency resolution process, for the purposes referred to in section 14 of the I and B Code, 2016. It is ordered to prohibit all of the following, namely : (a) The institution of suits or continuation of pending suits or pro ceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, Tribunal, arbitration panel or other authority ; (b) Transferring, encumbering, alienating or disposing of by the cor porate debtor any of its assets or any legal right or beneficial interest therein ; (c) Any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (54 of 2002) ; (d) The recovery of any property by an owner or lessor where such proper ..... X X X X Extracts X X X X X X X X Extracts X X X X
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