TMI Blog2020 (10) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... the same and as such now he cannot choose to claim the money back as Financial Creditor - further, the right to claim money by the allottee of a Residential Apartment eminates is maintained only in the event of non-delivery of the apartment to the allottee. The application of the Petitioner for initiating CIRP against the Corporate Debtor, LLP stands dismissed. - IBA/945/2019 - - - Dated:- 5-5-2020 - R. Varadharajan, Member (J) And Anil Kumar B., Member (T) For the Appellant : K. G. Vasudevan, Naresh Vassudhev For the Respondent : Praveen Sethia and D.R. Raghunath, Advocates ORDER Anil Kumar B., Member (T) 1. It is an application filed before this Tribunal under Section 7 of Insolvency and Bankruptcy Code, 2016 read with Rule 4 of the Application to Adjudicating Authority Rules, 2016. As per Part I of the application, the Applicant/Financial Creditor is one K. Sivasubramanian (hereinafter called as Financial Creditor ) residing at Plot No. 8, Sriram Nagar, Sembakkam, Chennai 600 073. As per Part II of the application, the Corporate Debtor/Respondent is Quince Liveras Properties LLP (hereinafter called as Corporate Debtor ) with Corporate Identificati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Respondent has stated that they had not committed default in view of the Memorandum of Understanding dated 11.07.2016, Agreement for Sale dated 20.06.2016 and Agreement for Construction dated 20.06.2016, c) It is alleged that the Petitioner had not advanced any amount to the Respondent and stated that one Mr. S. Ponnuswamy and Mr. G. Jayajothi have jointly borrowed a sum of ₹ 60,00,000 from the Petitioner, who are land owners who had agreed to repay to the Petitioner as per the mutual and oral understanding between the Respondent, Mr. S. Ponnuswamy and Mr. G. Jayajothi, or in the alternative, the Respondent had agreed to convey the residential apartment admeasuring 1425 sq.ft., bearing Flat No. C in the first floor of the building known as 'CORAL' in the Residential Apartment stated to be developed by the Respondent together with covered car park, bearing Plot No. 18, Bhuvaneswari Nagar, Muthukrishnan Road, Velachery, Chennai in favour of the Petitioner for a sum of ₹ 1,00,00,000 on condition that the Petitioner pays the balance sale consideration to the Respondent. d) It has been stated that the said Petitioner and the Respondent had entered into a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... condition that the Petitioner pay the balance sale consideration of ₹ 70,00,000 and a sum of ₹ 5,00,000 being the cost incurred for interior work and wooden cupboards. h) It is stated that since the Petitioner had failed and neglected to pay the balance sale consideration amount, the Respondent had therefore requested the Petitioner to cancel the said Agreement for Sale dated 20.06.2016 and Agreement for Construction dated 20.06.2016, so that the Respondent can sell the said property to any third party and pay the balance outstanding amount of ₹ 30,00,000 to the Petitioner. However, it is stated that the Petitioner neither paid the balance sale consideration nor cancelled the said Agreement for Sale and Construction, both dated 20.06.2016. 7. This Tribunal has perused various statements and averments as contained in the application by the Financial Creditor, Counter Affidavit filed by the Respondent and other submissions and additional documents filed by the parties. We find that the Petitioner has approached this Tribunal in the clothe of Financial Creditor, within the meaning of Section 5(8) in respect of Financial Debt in respect of which he has submitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Flat bearing No. C in the First Floor in Project CORAL at the aforesaid property measuring an extent of 1425 sq.ft. (including common space) and covered Car park in the Ground Floor and put the PARTY OF FIRST PART in possession of the above mentioned property with full title, rights, interest and claim without any further demand, delay, deviation and defect. 4. THE PARTY OF FIRST PART on failure to settle the full amount within the period accepted i.e. three months from 11.07.2016 has to pay an interest of 24% per annum for the amount due till repayment of entire amount for next 9 months to the PARTY OF SECOND PARTY, even after the PARTY OF FIRST PARTY not settled then the PARTY OF FIRST PART should handover the said flat bearing No. C in the First Floor in Project CORAL to the PARTY OF SECOND PART in regular time 12 months from this date or Prior to handing over of the third flat in this project Building, for the total value of ₹ 1,00,00,000/- (Rs. One Crore only) all inclusive car parking, Registration cost, service tax, Electricity connection, sewage drainage connections etc. The PARTY OF SECOND PART shall give the balance amount to the PARTY OF FIRST PART after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, 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. 9. The Respondent has completed the construction and carried out the interior work in the apartment as demanded by the Petitioner, which was ready for delivery and handed over to him and the petitioner has accepted the same and as such now he cannot choose to claim the money back as Financial Creditor. We further maintain that right to claim money by the allottee of a Residential Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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