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TMI Blog2019 (2) TMI 1849X X X X Extracts X X X X X X X X Extracts X X X X ..... area of 1726.91 sq. ft., in the Real Estate project, being developed by the Respondent under the name of "The Corridors" situated at Sector 67A, Gurgaon, Haryana. The Respondent after collecting Rs. 17,00,000/- (Rupees Seventeen Lacs Only) from the Appellant issued an Allotment Letter dated 07th August 2013 and subsequently after a delay of almost a year executed an 'Apartment Buyer's Agreement' on 03rd June 2014. As per the clause 13.3 of the terms of Agreement, the Respondent was to deliver the possession of the unit by July 2017 (i.e. 42 months from the date of approval of building plans), which the Respondent had grossly failed to deliver. Despite assurances to deliver possession by July 2017 the Respondent, failed to fulfil its obligation within the stipulated time. Thus the Appellant claimed refund of the amount as paid by them along with interest, till the date of refund. The Appellant, as per terms of the agreement, made prompt payment of all the instalments, as and when demanded by the Respondent. The Appellant adhered to the payment schedule and paid a total sum of Rs. 1,59,29,016/- (Rupees One Crore Fifty Nine Lacs Twenty Nine Thousand and Sixteen only) to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heard the arguments of the Learned Counsel for the parties and perused the record. 4. The Adjudicating Authority has rejected the Application mainly on the ground that the building approval is of Dt. 23rd July 2013, which was subject to several preconditions required to be satisfied. The last precondition was regarding Fire Safety Scheme approval, which was granted only on 27th November 2014. Therefore, the proposed time for handing over the possession, i.e. five years from 27th November 2014, was to expire on 27th November, 2019. 5. The Respondent/Corporate Debtor submitted that the question of delay in delivery of possession could not arise, before the time for the proposed delivery of possession starts. The Respondent further contends that it had applied for the Occupational Certificate on 05th July 2018, but it was received on 31st May 2019, and the E-mail for the termination of the Agreement is of 08th December 2018, which is just five months after the Occupational Certificate was obtained by the Corporate Debtor. The Corporate Debtor had fulfilled its obligation by applying for the Occupational Certificate within the time frame. 6. The Respondent - Corporate Debtor further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence construction despite approval of the building plan dated 23rd July 2013, as the said approved imposed certain pre-conditions including but not limited to (a) obtaining grant of approval by Ministry of Environment and Forest, (ii) Fire Safety Approval before the commencement of construction. The Respondent obtained environmental approval on 12th December 2013, and the said approval reiterated the requirement for approval of the Fire Department. Therefore, the Respondent applied for Fire Safety Approval on 23rd October 2013, before starting any construction. It is further elucidated that the approval of the Fire Department in terms of section 15 of the Haryana Fire Safety Act, 2009 was material for the fulfilment of the obligations of the Respondent and commencement of construction. Accordingly, the date of handing over of the possession is to be computed from the date of Fire Safety Approval, i.e. 27th November 2014, which expired on 27th November 2019. In the circumstances, Respondent emphasised that there was no default on their part and letter for the handover of the possession was sent within the timeline as stipulated under Agreement. 10. The Adjudicating Authority accept ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal in Navin Raheja v. Shilpa Jain [2020] 113 taxmann.com 459 (NCL - AT), has held that: '50. Taking into consideration the fact that many of the allottees are filing applications under section 7 fraudulently or with malicious intent for any purpose other than for the resolution of insolvency, or liquidation, the Hon'ble President of India has recently promulgated an Ordinance further amending the 'Insolvency and Bankruptcy Code, 2016' by published in the Gazette of India Extraordinary Part II- Section 1 dated 28th December 2019. 51. In section 7 of the principal Act, in sub-section (1), before the Explanation, the following provisos have been inserted:─ "Provided that for the financial creditors, referred to in clauses (a) and (b) of sub-section (6A) of section 21, an application for initiating corporate insolvency resolution process against the corporate debtor shall be filed jointly by not less than one hundred of such creditors in the same class or not less than ten per cent of the total number of such creditors in the same class, whichever is less: Provided further that for financial creditors who are allottees under a real estate project, an appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In this case, it is on record that the Corporate Debtor/Respondent was to handover the possession of the apartment within 60 months, i.e. 42 months (commitment period) + 6 months grace period + 12 months extended period from the date of approval of building plan and on fulfilment of the pre-conditions imposed thereunder as per clause 13.3 to 13.5 of the Agreement. 17. It is noticed that the despite the approval of building plan on 23rd July 2013 project could not be started due to the certain pre imposed conditions, including but not limited to obtaining the grant of approval by Ministry of Environment and Fire Safety approval, before the commencement of construction. The Respondent obtained the environmental approval on 12th December 2013 and the said approval reiterated the requirement of approval by the Fire Department. Therefore, the Respondent applied for the Fire safety Approval on 23rd October 2013, and before starting any construction, approval from the Fire Department, in terms of Section 15 of the Haryana Fire Safety Act, 2009 was material for the fulfilment of the obligations of the Respondent and commencement of construction. Accordingly, the date of handover of poss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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