TMI Blog2019 (9) TMI 1456X X X X Extracts X X X X X X X X Extracts X X X X ..... d. It is required to be kept in mind by this Tribunal the recent pronouncement made by the Hon'ble Supreme Court of India in the matter of Pioneer Land Infrastructure Ltd. another Vs. Union of India and others [ 2019 (8) TMI 532 - SUPREME COURT ], wherein the Hon'ble Supreme Court after considering several objections raised by the Real Estate Developers as to whether a Home Buyer can be considered as an FC, has categorically come to the conclusion that Home Buyers can be considered as FCs, both prior to as well as subsequent to the amendment of Sec. 5(8) (f) of IBC 2016 by Amendment Act of 2018 incorporating the explanation to the said provisions as the Home Buyers finance the project significantly as developed by the Real Es ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /Financial Creditors the dates of disbursal in relation to each of the Petitioners as evident from Part-IV of the petition, in relation to the flats booked by the Petitioners has come before this Tribunal as Home Buyers/Financial Creditors (FCs) falling under Sec. 5(8) (f) of IBC 2016. In relation to each of the Financial Creditor (FC), the Principal amount due as well as outstanding compensation claims for delays (Rs.) are as under :- Financial Creditor Total Due Principal Outstanding Compensation FC-1 1,3693,603 80,10,570 56,83,033 FC-2 1,70, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... over by the CD, Taking into consideration even the extended period of 47 months by another 6 months, the possession of the property was required to be handed over by June, 2017 in relation to FC-1 and in relation to FC-2 and FC-3 in the month of July, 2017. In view of the default in handing over possession, the Petitioner (FC-1), it is stated had issued an e-mail dated 24.4.2019 intimating about the termination of the Agreement in terms of Clause 4,2 of the apartment buyers agreement as well as in terms of Clause 6.4 and demanded the refund of the entire principal amount along with interest @15%, failing which will initiate legal action. Pursuant to the same, the petition has been filed before this Tribunal on the plea that a 'default&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d out that even though in the Possession letter it is stated that the occupation certificate in relation to tower in which the unit of the PC were situated when actual possession was sought and despite repeated requests made by the FC was not given which prompted the FC to issue notice of termination in the year 2019. 8. On the part of CD, the Counsel for the CD submits and brings to the notice of this Tribunal and referred to in Clause 2.6, 6.2 and 6.4 of the Buyer's Agreement and contended that the termination letter which has been issued by the FC cannot be sustained legally. In the circumstances, the possession of the flats having already been offered in the year 2017 itself, there is no question of any default on the part of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the property as agreed to between the respective parties is to be considered as a 'default' as envisaged under Section 3(12) of IBC 2016. Thus the FC in case of violation of the Agreement not handing over possession of the respective units has right to seek for the termination of the Agreement and also the refund of the principal amount and compensation as provided under the agreement in case of its breach. 11. Thus we are not in a position to appreciate the technical objection taken by the CD in stating that a different clause has been invoked which should not have been invoked in the first place by the FC. The issue is not in relation to invocation of a clause, whether it is right or wrong what is material is that either a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the Petitioner also points out to the necessary consent as given by the IRP proposed by the Petitioner as enclosed on page No.387 and 388 from which it is seen that necessary disclosures of his independence viz-a-viz CD has also been enclosed. The Registration Certificate of the IRP proposed has also been enclosed. 14. The moratorium as envisaged under Section 14 of IBC 2016 will follow on admission of the petition from the date of this order. IRP to strictly adhere to the provisions as well as the attendant Rules Regulations governing his conduct while acting as IRP in relation to CIRP of the CD. A copy of this order shall be duly despatched to the FC and CD as well as a copy be also communicated to the IRP named as above by the R ..... X X X X Extracts X X X X X X X X Extracts X X X X
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