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TMI Blog2019 (10) TMI 1294X X X X Extracts X X X X X X X X Extracts X X X X ..... cted in the Master Data as filed by the Applicant annexed at Annexure-P1. The Applicant in Part-III of the Application proposes the name of the Interim Resolution Professional (IRP) being one Mr.Sunil Prakash Sharma having the registration No. IBBI/IPA-002/IP-N00551/2017-2018/11726. Part-IV of the Application discloses the amount of debt granted by the Applicant to the Respondent which is stated to be in a sum of Rs. 44,10,784/- and the details of the financial debt have also been given by way of a tabulation from which it is seen that the payment commenced from 9.7.2011 and ending on 5.8.2016. Along with the said amount of Rs. 44,10,784/- claimed to be in default it is stated that a sum of Rs. 1,00,85,842/- which includes interest payable computed till 10.8.2018. The date of default initially stated to have occurred on 31.12.2014 and in view of the claim being recognized of the Applicant by the Respondent by demanding payments from the Applicant under protest on 5.8.2016, the same is reckoned as the date of default by the Applicant. Part-V of the prescribed Application, lists out the documents in support of the claim as made by the Applicant against the CD. In view of the claim be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ects and every endeavour is being made to deliver the possession of the flat by June, 2019 to the Applicant and that the finishing work is also in the advance stage. 7. Placing reliance upon the decision of Hon'ble NCLAT in Nikhil Mehta vs. AMR Infrastructure as well as in Kamal Dutta vs. Anubhuti Aggarwal & Anr. judgements rendered by Hon'ble NCLAT, the Respondent contends that the amounts which had been paid by the Applicant cannot be considered as consideration paid against the time value for money and also based on the said judgements contends that there is no financial debt and that the Applicant cannot be considered as a FC. 8. It is also contended that there is existence of dispute in as much as there had been delay on the part of the Applicant in remitting the instalment amounts as it was required to pay on due dates as per the Payment Schedule given in the Agreement and the actual date of payment evidences a default on the part of the Applicant which has been given by way of a tabulation. It is also brought to the notice of this Tribunal that delay in the development had occurred due to the proceedings initiated by Hon'ble National Green Tribunal and in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RoC is on 31.3.2016. No document has been produced to establish the solvency in any case to support the contention of the CD in this regard. 12. In relation to the delivery as stated by the CD in the reply itself that the possession will be given at the end of June, 2019. However, nothing has come forward on the part of CD. On the contrary, it is seen that in relation to the proceedings initiated by the Applicant before UP RERA, order had been given that the CD is required to hand over the possession after obtaining completion certificate by September, 2019 and that it had also ordered to pay a compensation on account of delay from 31.12.2014 to 30.04.2016 along with interest as specified in the order dated 12,04.2019 which clearly evidences that there has been delay on the part of the CD to deliver the possession of the flat booked by the Applicant. In relation to the judgement relied on as rendered by Hon'ble NCLAT and as listed in the reply namely, Nikhil Mehta vs. AMR Infrastructure as well as in Kamal Dutta vs. Anubhuti Aggarwal &.Anr., by virtue of the recent judgement as delivered by the Hon'ble Supreme Court in Writ Petition (Civil) No.43 of 2019 in the matter of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Applicant herein and in view of non delivery of the possession of the time prescribed under the Agreement as entered into between the as non- refund of the amount paid, there is an existence of default as defined under Section 3(12) of IBC, 2016, and in the circumstances the Application is admitted and the Corporate Insolvency Resolution Process (CIRP) stands initiated in relation to the CD. Since the Applicant has proposed the name of Mr.Sunil Prakash Sharma having the registration No. IBBI/IPA-002/IP-N00551/2017-2018/11726 as the IRP, he is appointed as the IRP. 14. Mr.Sunil Prakash Sharma having the registration No. IBBI/IPA-002/IP-N00551/2017-2018/11726 proposed by the Financial Creditor is appointed as the interim resolution professional and he shall strictly act in accordance with the provisions of the Code and the attendant Rules enjoined upon him; a. In terms of Section 14, as reproduced hereunder, the Corporate Debtor shall be under moratorium on the following terms: (a) the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration pa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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