TMI Blog2019 (10) TMI 1294X X X X Extracts X X X X X X X X Extracts X X X X ..... e buyer in the capacity of a Financial Creditor (FC) has filed this Petition against the Respondent/Corporate Debtor (CD). 2. The particulars and facts in brief as evidenced from the prescribed Application are as follows: 3. The Applicant is an individual, as reflected in Part-I of the Application. Part-II of the Application discloses the details of the CD from which it is seen that the CD was incorporated on 4.7.2006 and the nominal share capital and the paid up share capital is stated to be ₹ 1,20,00,000/- and ₹ 3,75,000/- respectively. The registered office of the CD is stated to be situated at R-19, 3rd Floor, Near Shakarpur, Laxmi Nagar, Vikas Marg, Delhi-110092 which address is also reflected 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 ₹ 44,10,784/- and the details of the financial debt have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d any other forum it is averred in relation to the present cause or claim. 6. Upon notice issued to the CD, the CD had entered its appearance and have also filed its reply. Perusal of the reply shows that a technical objection has been taken by the CD that the amount which had been paid by the Applicant to the CD is in a sum of ₹ 46,56,752/- instead of ₹ 44,10,784 as stated in the Application and the payment in a sum of ₹ 2,45,968 made by the Applicant on 16.1.2016 had not been mentioned and in the circumstances since the actual figures paid had not been mentioned the Petition is defective and deserves to be dismissed on this sole ground. It is also contended by the Respondent that it is a solvent company and having several projects 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the objection of the amount, it is seen that it is only a technical objection which had been taken by the CD which in no way detracts the case of the Applicant as it is required to be noted that the Applicant had erred if at all on the lower side of the claim amount and in the circumstances the said technical objection is over ruled. In relation to the contention of the CD that it is a solvent company, even though it may not be a material criteria as this Tribunal under the Provisions of IBC, 2016 is to see the existence of a default in relation to the financial debt. However, even perusal of the Master Data as filed by the Applicant as Annexure P-1 discloses that the last date of AGM held by the CD is 30.9.2016 and that the date of balance sheet filed with the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f lack of pecuniary jurisdiction and not based on the merits. In any case, as observed-.by Hon'ble Supreme Court in Writ Petition (Civil) No.43 of 2019 in Pioneer Urban Land and Infrastructure Limited Anr. dated 9.8.2019, provisions of the Consumer Protection Act or for that matter RERA may not be deterrent for the home buyers to approach this Tribunal under IBC, 2016 as the remedies given to the allottees of flats/apartments and that such allottees of flats/apartments can avail remedies under the Consumer Protection Act, 1986, RERA as well as triggering of the Code i.e. IBC, 2016. 13. Taking into consideration all the above facts as well as the position of law, we find that there is existence of financial debt as made available by FC namely, the home buyer/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 prop ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
