TMI Blog2020 (8) TMI 577X X X X Extracts X X X X X X X X Extracts X X X X ..... jected - Appellant is directed to adhere to the Terms of Settlement . The Interim Resolution Professional is entitled for fees and costs, as it is not determined in the Agreement - the Corporate Debtor (company) is released from all the rigours of Moratorium and is allowed to function through its Board of Directors from immediate effect - Appeal allowed. - Company Appeal (AT) (Insolvency) No. 1065 of 2019 - - - Dated:- 30-1-2020 - ( Justice S. J. Mukhopadhaya ) Chairperson And ( Justice Bansi Lal Bhat ) Member ( Judicial ) For the Appellant : Mr. Himanshu Tyagi, Advocate For the Respondents : Mr. Vaibhav Sharma, Advocate for 1st Respondent. Mr. G. Murali, Advocate for IRP. Mr. Kunal Anand, Advocate for Intervenor JUDGMENT SUDHANSU JYOTI MUKHOPADHAYA, J. Mr. Aamir Jamal, an allottee ( Financial Creditor ), moved an application under Section 7 of the Insolvency and Bankruptcy Code, 2016 ( I B Code for short) against Futec Shelters Private Limited - ( Corporate Debtor ), an Infrastructure Company of which he is an allottee. The Adjudicating Authority (National Company Law Tribunal), Bench-III, New Delhi, by impugned order dated 9th October, 2019 ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t No.10, Eco City, Sector-75, Noida, UP. As per the Agreement, the agreed project price of the above said unit/ flat is ₹ 54,16,250/-, individual break-up of which has been given by way of a tabulation and out of total consideration payable amount paid has also been given in a sum of ₹ 44,10,784/-. In terms of clause 27 of the above said Agreement dated 3.8.2012, the Corporate Debtor was required to deliver the possession of the flat after obtaining completion certificate from the Competent Authority in December, 2014. However, even after a delay of more than three and half years, no possession has been given by the Corporate Debtor to the 1st Respondent and instead the Corporate Debtor invoking clause 19 of the Agreement had been insisting upon the 1st Respondent to pay an interest @ 18% per annum for one month and at 24% per annum for next months in case of any default or delay in timely remittance of instalments. Even though substantial amounts have been paid, possession has not been given by the Corporate Debtor to the 1st Respondent by way of discharge of its obligations which compelled the 1st Respondent to approach on 20.2.2018 the RERA UP seeking for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pletion process due to possession issues and restrictions imposed by the National Green Tribunal. The project was affected by force majeure situation due to the state policy failure as National Green Tribunal imposed ban on construction and on transfer of title and completion process itself. The Corporate Debtor is the victim of Government apathy leading to cost escalation of high proportion. This ban imposed by the National Green Tribunal could have been averted if the State Government had formulated policy as part of national process commenced in 2002. 6. It was further submitted that the abovementioned stay directed by the National Green Tribunal was vacated vide order dated 18th August, 2015 when the Original Application was finally disposed off and that the construction at the project of the Corporate Debtor came to a standstill during the period when stay was directed by the National Green Tribunal. 7. It was also submitted that to claim the benefit of zero period which all the developers working on the same plot including the Corporate Debtor had suffered due to several judicial orders passed by the National Green Tribunal and other respective Courts, the main ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within the four corners of the project as no steps were taken by the Noida Authority to resolve the controversy and due to which the Corporate Debtor project suffered road block. On 20th July, 2017, based upon the settlement, Writ Petition No. 61567 of 2015 titled as Omveer Singh Anr. v. State of U.P. Ors. was withdrawn by the Petitioners therein in the light of the abovementioned sale deeds and the status quo order was then vacated by the Hon ble High Court. 11. It was stated that the 1st Respondent on 20th February, 2018 had preferred a complaint before the RERA, U.P. which was decided vide order dated 12th April, 2019 by way of which RERA was pleased to direct the Corporate Debtor to provide possession along with occupancy certificate on or before September, 2019 and further it was directed to provide delay possession charges to the 1st Respondent i.e. 31st December, 2014 upto 30th April, 2016 computing from ₹ 5 per sq. feet and thereafter from 1st May, 2016 till the date of occupancy certificate the delay possession charges shall be payable to 1st Respondent computed with MCLR plus 1%. 12. Thereafter, the 1st Respondent moved an amendment application befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that the Corporate Debtor also suffered, due to such interim order passed by the Hon ble High Court. 19. In Pioneer Urban Land and Infrastructure Limited Anr. (Supra), the Hon ble Supreme Court noticed the relevant provisions of the RERA including rights and duties of allottees as mentioned in Section 19 and quoted therein, as follows:- 19. Rights and duties of allottees.─ (1) The allottee shall be entitled to obtain the information relating to sanctioned plans, layout plans along with the specifications, approved by the competent authority and such other information as provided in this Act or the rules and regulations made thereunder or the agreement for sale signed with the promoter. (2) The allottee shall be entitled to know stage-wise time schedule of completion of the project, including the provisions for water, sanitation, electricity and other amenities and services as agreed to between the promoter and the allottee in accordance with the terms and conditions of the agreement for sale. (3) The allottee shall be entitled to claim the possession of apartment, plot or building, as the case may be, and the association of allottees shall be en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case may be, as provided under sub-section (1) of section 17 of this Act. 20. As per Section 19(4) of the RERA, the allottee is entitled to claim the refund of amount paid along with interest at such rate as may be prescribed and compensation in the manner as provided under the Act, from the promoter, if the promoter fails to comply or is unable to give possession of the apartment, plot or building, as the case may be, in accordance with the terms of agreement for sale or due to discontinuance of his business as a developer on account of suspension or revocation of his registration under the provisions of the Act. 21. As per sub-section (6) of Section 19 of the RERA, every allottee, who has entered into an agreement or sale to take an apartment, plot or building, as the case may be, under Section 13, is responsible to make necessary payments in the manner and within the time as specified in the said agreement for sale and is also required to pay at the proper time and place, the share of the registration charges, municipal taxes, water and electricity charges, maintenance charges, ground rent, and other charges, if any. 22. In terms of sub-section (7) of Section 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of insolvency. This the real estate developer may do by pointing out, for example, that the allottee who has knocked at the doors of the NCLT is a speculative investor and not a person who is genuinely interested in purchasing a flat/apartment. They can also point out that in a real estate market which is falling, the allottee does not, in fact, want to go ahead with its obligation to take possession of the flat/apartment under RERA, but wants to jump ship and really get back, by way of this coercive measure, monies already paid by it. Given the above, it is clear that it is very difficult to accede to the Petitioners contention that a wholly one-sided and futile hearing will take place before the NCLT by trigger-happy allottees who would be able to ignite the process of removal of the management of the real estate project and/or lead the corporate debtor to its death. 25. Apart from the fact that there are force majeure due to which the Corporate Debtor could not complete the project, we find that the 1st Respondent knocked the doors of the RERA and instead of waiting there, moved application under Section 7 not for Insolvency Resolution to get the Flat/ Apartment o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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