TMI Blog2019 (6) TMI 1566X X X X Extracts X X X X X X X X Extracts X X X X ..... ce. Though a considerable long period has lapsed even the principal amount disbursed has not been repaid by the respondent corporate debtor as per the terms of the Assured Return Agreement. It is accordingly held that respondent corporate debtor has committed default in repayment of the outstanding financial debt which exceeds the statutory limit of rupees one Lakh. Thus, the petition warrant admission as it is complete in all respects. Petition admitted - moratorium declared. - C.P. No. IB-67(PB)/2019 - - - Dated:- 13-6-2019 - M.M. Kumar, C.J. (President) and Santanu Kumar Mohapatra, Member (T) For the Appellant : Nakul Mohta, Misha Rohatgi and Johnson Subba, Advocates For the Respondents : Suhani Dhingra, Advocate JUDGMENT M.M. Kumar, C.J. (President) Mr. Mohit Kumar Arora claiming himself to be a 'financial creditor' has filed this petition under Section 7 of the Insolvency and Bankruptcy Code, 2016 (for brevity the Code') read with rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (for brevity 'the Rules') with a prayer for initiation of Corporate Insolvency Resolution Process in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore the Haryana Real Estate Regulatory Authority but all in vain. 6. It is claimed that the Respondent is liable to pay an amount of ₹ 17,85,600/-, ₹ 89,280/- ₹ 40,00,000/- respectively to the petitioner (in the different heads namely assured return, TDS deducted but not deposited principal amount). 7. On 09.01.2019, during the course of hearing it was brought our notice that in the earlier order dated 26.09.2018 against the Corporate Debtor passed in (IB)-890(PB)/2018, we have noticed that Hon'ble Delhi High Court had already appointed Official Liquidator as Provisional Liquidator on 05.07.2018 and the application for recalling that order before the Delhi High Court was pending. Accordingly, we had granted time to the learned counsel for the petitioner to study the provision as well as that order to make submission thereafter. 8. The issue concerning maintainability of a petition under Section 7 of the Code during the pendency of a winding up petition before the High Court even after admission and appointment of Official Liquidator, is no longer res Integra. Hon'ble the Supreme Court in the case of M/s. Forech India Limited v. Edelweiss Asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er all the queries of the Resolution Professional who is to take over the process. He is subjected to all the directions of the NCLT and Resolution Professional. It is for that reason we had issued notice to the Official Liquidator as well who has preferred not to appear. Therefore, it cannot be said that a petition is not maintainable merely because Official Liquidator has been appointed. 9. After service of notice when the matter came up for consideration on 20.02.2019 learned counsel for the respondent sought time to file reply and vakalatnama. We granted three days' time for filing reply and vakalatnama and the matter was to be heard on 25.03.2019. Despite granting time the Respondent has not chosen to file reply. 10. It is pertinent to mention here that the notice of the petition was also issued to the Official Liquidator which was duly served upon him. However, no one put in appearance on behalf of Official Liquidator and the position obtaining has been recorded by us in the order dated 25.03.2019. On behalf of the ex-director an attempt was made to address arguments on the basis of some material which is not on record. Such a course is not available in law. Accordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Amendment) Ordinance, 2018 No. 6 of 2018 dated 6th June, 2018 followed by the Act, in clause (8), in Sub-clause (f), of Section 5 an explanation has been inserted as per which any amount raised from an allottee under a real estate project shall be deemed to be an amount having the commercial effect of a borrowing. Thereby, after amendment of the Act, the allottees of real estate project have been treated as 'Financial Creditors'. (Emphasis supplied). A bare perusal of the aforesaid paragraph of the judgment would show that even without any element of 'assured return' an allottee in the real estate project has to be regarded as a 'Financial Creditor'. The petitioner eminently fulfills the aforesaid condition. 14. The amount has been raised from the petitioner/allottee under a real estate project. In such a situation not only the debt has a commercial effect of borrowings and come within the scope of 'financial debt' but also the petitioner is covered by the definition of expression 'financial creditor'. 15. Therefore, petitioner being financial creditor can invoke Corporate Insolvency Resolution Process under Section 7 of the code a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted as the Interim Resolution Professional. 21. We also declare moratorium in terms of Section 14 of the Code. It is made clear that the provisions of moratorium are not to apply to transactions which might be notified by the Central Government. Additionally, the supply of essential goods or services to the Corporate Debtor as may be specified is not to be terminated or suspended or interrupted during the moratorium period. These would include supply of water, electricity and similar other supplies of goods or services as provided by Regulation 32 of IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. 22. In pursuance of Section 13 (2) of the Code, we direct that Interim Insolvency Resolution Professional shall immediately (3 days) make public announcement with regard to admission of this petition under Section 7 of the Code. The public announcement is required to be made in all territories/areas where the business have been transacted by the Corporate Debtor so that all stakeholders may have noticed of the fact that Corporate Insolvency Resolution Process has been triggered in respect of the Corporate Debtor. 23. We direct the Financial Creditor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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