TMI Blog2020 (7) TMI 144X X X X Extracts X X X X X X X X Extracts X X X X ..... rove that any debt was due and payable by the Corporate Debtor. 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 - 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 construc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ine Thousand and Sixteen only) to the Respondent and despite receiving timely payments failed to deliver the possession of the allotted unit. Thus the Appellant/Financial Creditor terminated the Agreement vide e-mail dated 08th December 2018 and sought a refund of the total amount already paid, along with interest, which she was legally entitled to as per the Agreement. The Appellant contends that the Respondent corporate debtor owes ₹ 2,07,57,385/- (Rupees Two Crores Seven Lacs Fifty Seven Thousand Three Hundred and Eighty-Five only) as financial debt. Therefore, Applicant/Financial Creditor filed an Application under section 7 of the I B Code for initiation of the Corporate Insolvency Resolution Process (in short 'CIRP'), which was rejected by the Impugned Order. The Appeal has been filed mainly on the ground as under: (a) The Adjudicating Authority, while rejecting the Application has ignored the fact that the default occurred on 10th July 2017 and the project, i.e. being developed by the Respondent, is still incomplete. (b) The Adjudicating Authority, while rejecting the Application has completely overlooked the well-settled Principle of Law as laid down ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e frame. 6. The Respondent - Corporate Debtor further contends that the letter was sent to the Appellant/financial creditor, stating that Apartment No. CD-A6-02-203, Type 3 BHK, Floor-2, Tower A-6, The Corridors, Sector - 67A, Dhumaspur, Gurgaon is ready for possession. In the circumstances, the Adjudicating Authority has held that the Corporate Debtor has not committed any default. Therefore the Application for Initiation of CIRP has been rejected by the Impugned Order. 7. The Respondent further contends that the Petition, filed under section 7 of the I B Code, is only to harass the corporate debtor and to extract a huge amount of money. As per clause 13.3 of the Apartment Buyers Agreement (from now on referred to as the Agreement ). The Respondent had fulfilled its obligation in applying for the Occupational Certificate within the time frame and had even offered possession to the Appellant within the stipulated time. It is further contended that the Respondent had completed construction of 1356 Apartments (approximately out of which 700 Apartments in Tower A6 to A10, B1 to B4, C3 to C7, EWS, convenient shopping, two-level basement are ready to move in, and Occupational C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulated under Agreement. 10. The Adjudicating Authority accepted the contention of the Respondent and held that there was no default on the part of the Corporate Debtor and further observed that the financial Creditor has also failed to prove that any debt was due and payable by the Corporate Debtor. 11. The Learned Counsel for the Appellant placed reliance on the order passed by the Hon'ble Supreme Court in the case of Ireo Grace Realtech (P.) Ltd. v. Subodh Power Etc. [Diary No. 48148 of 2018, order dated 28-1-2019], wherein the date of handing over the possession has already been determined as 27th May, 2018. It is further noted in the said order that; Mr. Mukul Rohatgi, Learned Senior Counsel upon instructions from Mr. Manjeet Singh, the authorised representative of the Appellant, states that the money which is due and payable under the Impugned Order of the National Consumer Disputes Redressal Commission to the three purchasers namely, Subodh Pawar, Ritu Bansal and Geeta Bansal shall be refunded within four weeks from today together with interest @ 10% per annum w.e.f. 27th May 2018 until the date of payment. 12. The Appellant also placed reliance on the la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for financial creditors who are allottees under a real estate project, an application for initiating corporate insolvency resolution process against the corporate debtor shall be filed jointly by not less than one hundred of such allottees under the same real estate project or not less than ten per cent. of the total number of such allottees under the same real estate project, whichever is less: Provided also that where an application for initiating the corporate insolvency resolution process against a corporate debtor has been filed by a financial creditor referred to in the first or second provisos and has not been admitted by the Adjudicating Authority before the commencement of the Insolvency and Bankruptcy Code (Amendment) Ordinance, 2019, such application shall be modified to comply with the requirements of the first or second provisos as the case may be within thirty days of the commencement of the said Ordinance, failing which the application shall be deemed to be withdrawn before its admission. 52. The provisos above inserted in sub-section (1) of Section 7 came into force since 28th December 2019 though not applicable in this appeal, the Adjudicating Authority is r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondent and commencement of construction. Accordingly, the date of handover of possession is to be computed from the date of grant of Fire Safety Approval, i.e. dated 27th November 2014. Before that, the letter for handing over possession was already issued to the Appellant. It is also clear that the Coordinate Bench of this Hon'ble Tribunal has also held that the proviso inserted in sub-section (1) section 7 of the I B Code, which comes to be force since 28th December 2019, though not applicable in this Appeal, but the Adjudication Authority is required to take notice of the said provision and this Tribunal also holds that it will be desirable to find out whether the allottees has come to claim the money or to get their apartment by way of resolution. If the intention of the allottees is only for recovery of the money and not for resolution for possession by apartment, then the Corporate Debtor may bring to the notice of the Adjudicating Authority, as held by the Hon'ble Supreme Court in the case of Pioneer Urban Land and Infrastructure Ltd. (supra). Thus, in the circumstances as aforesaid, we do not find any justification for the interference with the Impugned Order a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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