TMI Blog2019 (7) TMI 1646X X X X Extracts X X X X X X X X Extracts X X X X ..... satisfy this tribunal about the requirements of the section 7 of IBC, 2016 to claim any relief - this tribunal is of the opinion that it is not a fit case to initiate Insolvency process as prayed for by the petitioner/applicant - application dismissed. - IB-342/(ND)/2019 - - - Dated:- 17-7-2019 - R. Varadharajan, Member (J) And Deepa Krishan, Member (T) For the Appellant : Dushyant Tiwari, Advocate For the Respondent : N.P.S. Chawla, Mohot Das and Sujoy Datta, Advocates ORDER 1. The present petition has been filed under the provisions of Section 7 of Insolvency and Bankruptcy Code, 2016 (for brevity IBC, 2016) by Mr. Amit Singhal and Mr. Sumit Singhal (for brevity Financial Creditors/Applicants ), against Experion Developers Private Limited (for brevity Corporate Debtor ) having CIN no: U70109DL2006FTC151343. 2. The financial creditors/applicants are private individuals who agreed to invest an amount of ₹ 2,10,95,531/- only, including all taxes with the corporate debtor for the purchase of an apartment No. 0301 in tower No. Waving Teak WT 07 on 3rd floor and proportionate rights in common area and facilities of the complex in the said project call ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the said project is having a smooth access from Dwarka Expressway. The petitioner has submitted that as per the judgment of the Supreme Court in Laxmi Engineering Works v/s. P.S.G. Industrial Institute (1995) 3 SCC 583, where it is held that the person can claim benefit of section 14 of the Limitation Act, 1963 to exclude the period spent in prosecuting proceedings under Consumer Protection Act. 4. The documents attached to the application in order to prove the existence of financial debt are as following: a. Copy of the cancellation notice dated 29.11.2013 b. Copy of certificate of chartered accountant dated 09.01.2019 along with details of assured income payable to financial creditor's applicants. c. Copy of calculation schedule detailing the calculation of the total amount due according to which the total amount and interest payable by corporate debtor to financial creditors as on 31.12.2018 is ₹ 72,77,002/-. d. Copy of apartment buyer agreement dated 26.12.2012 executed between the parties. 5. The respondent have filed a detailed reply on 22.02.19 and submits that the agreement was terminated by the respondent on 29.11.2013 on account of the mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as made and have not challenged the cancellation notice. That after making the application the petitioner made various delays and default on making payments, both before and after execution of the apartment buyer agreement dated 26.12.2012 leading to the cancellation of the agreement. The respondent represent that the petitioner has made the required initial deposit of ₹ 11,00,000/-through cheque of ₹ 4,00,000/- and a separate cheque for ₹ 7,00,000/- but the cheque for ₹ 4,00,000/- was dishonoured by the drawee bank that further the petitioners provided a substitute cheque drawn on DCB bank with a delay of 30 days in making the payment of booking amount itself. In the reply it is further averred that despite delay and default by the petitioner the respondent on 07.08.2012 made provisional allotment of flat number WT 07/0301 in favour of the petitioner. That the petitioners have delayed the payments till October 2012 and then made a amount of ₹ 3,00,000/- and a separate cheque for amount of ₹ 6,60,481/-. However again the cheque for the amount of ₹ 6,60,481/- was dishonoured and a copy of the email dated 31.10.2012 the petitioners admitting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... LY PAYMENTS 4.8 The timely payment of all the amount due and payable by the buyer to the company is an integral part of this agreement. In the event the buyer defaults in payment of any amount(s) due and payable per this agreement or otherwise beyond the period of 60(sixty) days from the due date(s) for each of such payments the company shall have the right to terminate this agreement and cancel the allotment of the apartment as per the terms herein. The Buyer shall be liable to pay simple interest at the rate of 18% (eighteen percent) per annum for such period of sixty days or part thereof for each payment delayed beyond the due date for each of such payment from the due date till the date of receipt or for such further period beyond 60 (sixty) days if the company does not terminate this agreement and cancel the allotment of the Apartment as per the terms herein. The company shall adjust all amounts received from the Buyer first towards any interest on any overdue payment/instalments, thereafter towards any overdue payments/instalments or any other outstanding demand, then towards the current instalment or current dues for which the payment is tendered and finally the balance ..... X X X X Extracts X X X X X X X X Extracts X X X X
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