TMI Blog2020 (9) TMI 996X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent : Varun Khathuria, Advocate ORDER DR. V.K. SUBBURAJ, MEMBER (T) 1. This is a petition filed by Shri Ranjan Arora and others, the petitioners/financial creditors seeking to initiate CIRP on the respondent/corporate debtor M/s. MMR Saha Infrastructure Pvt. Ltd., under Section 7 of IBC 2016 for the alleged default on the part of the corporate debtor in settling an amount of ₹ 97,56,774/-including the interest component towards the assured returns as promised by the corporate debtor. The details of the transactions leading to the filing of this petition as averred by the petitioner are as follows: i. The financial creditors 1 to 3 purchased a unit bearing No. HS-B-004, admeasuring 2500 sq. ft. vide MOU dt. 01.02.2014 at a price of ₹ 8,400/- per square foot amounting to a total sale consideration of ₹ 2,10,00,000/- (Rupees two crores ten lakhs only). The applicants/financial creditors have paid an amount of ₹ 2,17,00,000/-(Rupees two crores seventeen lakhs only) towards the sale consideration of their unit which is in fact more than the agreed sale consideration for the unit. ii. The financial creditor No. 4 to 7, purchased a unit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y paid the assured return to the applicants/financial creditors till the month of December, 2017, which to was paid in October, 2018, for all the applicants/financial creditor except for Mr. Tarun Arora to whom it was paid in December, 2018. Thereafter, no assured returns have been paid to the applicants/financial creditors have visited the office of the corporate debtor on several occasions demanding the payment of their assured returns but the corporate debtor has avoided and delayed the payment of assured returns citing one excuse or the other and has further failed to apprise the applicants regarding the true and correct timelines regarding the completion of the project where their units are locate. The corporate debtor has repeatedly assure the applicants that it will clear the arrears of the assured returns soon and has even discussed the option and possibility of refunding the entire amount paid by the applicants along with compensation for loss of opportunity but has failed to act on either of the two proposals till date. vii. The applicants/financial creditors sent an email to the corporate debtor on 10.05.2019 and 17.05.2019, respectively, demanding the payment of assu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the monthly assured returns to the applicants/financial creditors till their unit is complete and ready in all respects and its possession is offered to the applicants/financial creditors. 2. Consequent to the issuing of notice by this Tribunal as well as service of application copy by the financial creditor, the corporate debtor filed its reply on 16.10.2019 in which the following contentions are raised by the corporate debtor:- i. The present application is not maintainable as there is no default as defined in Section 2(12) of the Code towards the payment of debt as defined in 2(11) of the Code to the applicant on the part of the respondent as alleged in the petition in terms of Memorandum of understanding dated 01.02.2014. It is relevant to mention here that aforesaid memorandum of understanding in the absence of the signing of the Unit-Buyer's Agreement with the respondent after the execution of the memorandum of understanding dated 01.02.2014, would not acquire the status of financial debt is payable to Buyer's under assured return only upon signing of the Unit-Buyer's Agreement of the Unit No. HS-B-004 and in the absence of the singing of the Unit-Buyer' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his Hon'ble Tribunal that real estate market especially in NOIDA/Greater NOIDA is seen as downtrend after acquisition of the land were quashed by the Hon'ble High Court, farmers agitation for the claim of enhanced compensation to their acquired land and intervention of the NGT wherein the development of the real estate projects were stayed within the radius of 10 KM from the Okhla Bird Century. The respondent company considering the above intervening circumstances explained to the respondent and informed that after the payment of assured return for the month of December, 2017, the respondent shall not pay any further payment towards assured return as neither the market condition supports and further it is not advisable to pay assured return for such a long period whereby the u nit sold to applicants shall at zero cost. It is relevant to mention here that withdrawal of the assured return in terms of Clause 10 of the MOUs can be exercised by the respondent company whose decision is final and is binding upon the parties. The clause 10 of the MOU is as under: The Allottee confirms that he/she/it is aware of the assured return scheme being offered by the company and has unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e admitted on this ground alone as it has been held in a catena of judgments that change of market scenario is cannot be a ground, reason or excuse for not fulfilling the contractual obligations. iii. It is submitted that the Corporate-debtor by way of its reply is deliberately and mala fidely attempting to shift the onus of the failure of the project by trying to create a moonshine defence of force majeure events in order to mislead this Hon'ble Tribunal, rather than attributing the failure of the said project to its actions/inactions. It is also pertinent to mention here that in fact the corporate-debtor has for the first time, by way of its present reply brought the above facts and circumstances to the knowledge of the applicants/Financial-creditors which further clarifies that the present stand of the Corporate-debtor is an afterthought. iv. It has further been held in a catena of judgments that arbitrary and one-sided agreements are illegal and cannot have a binding effect and therefore, the Corporate-debtor cannot compel or enforce its illegal terms upon the applicants. 4. We have gone through the details of the documents filed by the parties and heard the argu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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