TMI Blog2021 (4) TMI 945X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 2020 with retrospective effect from 28/12/2019. In terms of the amendment, [Second proviso to sub-section (1) of section 7] an application u/s. 7(1) of Insolvency and Bankruptcy Code can be maintained only if an application for initiating corporate insolvency resolution process against the corporate debtor has been filed jointly by not less than one hundred of such allottees under the same real estate project or not less than ten per cent of the total number of such allottees, whichever is less. Thus, Financial Creditor being an individual allottee, does not satisfy the requirements of the second proviso to section 7(1) of the Insolvency and Bankruptcy Code, 2016. Thus, the petition is not maintainable and, therefore, is dismissed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the flat shall be given by the end of second quarter of 2013. A copy of General Terms Conditions ( GT C ) as signed by the Financial Creditor along with receipt issued by the Corporate Debtor for the booking amount are annexed with the petition and marked with the letter A (Colly). Letter of Provisional Allotment of the flat was also issued vide a letter having reference No. 00052/18C dated 15/10/2010, a copy whereof is annexed with the petition and marked with the letter B . 3. The Financial Creditor further submits that they continued to draw cheques in the name of the Corporate Debtor when it became due along with service tax @ 2.575% till 3rd installment and had paid in aggregate an amount of ₹ 1,13,55,054/-. Thereaf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ipts issued by the Corporate Debtor against all payments made by the Financial Creditor are annexed with the petition and marked with the letter E (colly). 4. The Financial Creditor also submits that due to poor quality of marbles used in the flat Wing C, 18th floor, the Corporate Debtor allotted to the Financial Creditor a flat in Wing A in 22nd floor vide an e-mail dated 07/06/2018. The Corporate Debtor have not only made an enormous delay in completion of the project but also made false representations to the Financial Creditor to make unjust gain to itself. The Financial Creditor had made repeated demands for repayment of the entire amount paid along with interest @ 18% p.a. from the date of payment of respective instalments but th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to failure of the settlement arrived at between the parties, vide order dated 20/01/2020 the matter was restored to its original stage directing issuance of notice upon the Corporate Debtor fixing next date of hearing on 20/02/2020. On 20/02/2020, Ld. Counsel for the Corporate Debtor appeared and sought time to file supplementary affidavit, which was duly granted, fixing next date of hearing on 25/03/2020. However, due to lockdown on account of COVID-19 pandemic, the matter was coming up for consideration on 21/10/2020 and upon hearing directions were given for filing supplementary affidavit as well as to complete e-filing process, fixing next date on 21/12/2020. Finally, the matter was heard on 18/01/2021 and 15/02/2021 respectively. 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /2018, which was duly received by the Financial Creditor's Solicitors on 15/11/2018, a copy whereof is annexed with the reply as Annexure B . The Financial Creditor after more than two months through their Advocates issued a reply to the said letter dated 13/11/2018 vide letter dated 18/01/2019 issued by the Advocate of the Corporate Debtor, a copy whereof is annexed with the reply as Annexure C . Allegations made in the reply dated 18/01/2019 are untrue, incorrect and are denied and disputed. It is also denied and disputed that the Corporate Debtor is liable to make payment of interest or compensation or that no reliance can be placed on the GT C as alleged. 9. It is further stated that the petition filed by the Financial Credit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... instant application, i.e., 14/11/2018. 10. Ld. Counsel for the Corporate Debtor also submits that the instant Company Petition is not maintainable as there is no omission on its part within the meaning of default as defined by s. 3(12) of IBC as on the date of filing of the instant Company Petition which disentitled the Financial Creditor from filing/affirming the same under section 7(1) of the IBC. 11. The Financial Creditor in the rejoinder to the reply denied all averments save and except what are matters of records and also opposed the submissions that the petition is not maintainable and is liable to be dismissed. 12. The Financial Creditor has filed a supplementary affidavit bringing on records settlement agreement dated 18 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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