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TMI Blog2021 (5) TMI 136X X X X Extracts X X X X X X X X Extracts X X X X ..... entered into an 'Agreement to Sell' dated 19.12.2012 wherein the Petitioner paid a sum of Rs. 32,00,000/- to the Corporate Debtor for buying the flat which was proposed to be delivered within 48 months plus 12 months grace period from the date of execution of this Agreement, subject to the force majeure conditions. Pursuant to the said agreement, the Corporate Debtor failed to provide the peaceful possession of the said flat to the Petitioner. There are more than 200 such Petitioners who have not been handed over the possession of the said flats till date. Through this Petition, 25 of such Petitioners have decided to initiate CIRP against the Corporate Debtor under Section 7 of the Code. 3. The Counsel for the Petitioners further submits that previously an application dated 17.05.2018, bearing Complaint Case No. 67/2018, before the Consumer Disputes Redressal Commission, Rajasthan, was preferred by some of the Co-Petitioners herein in which the Hon'ble court declared that "Sale deed be also executed in favor of the complainant on payment of rest of the sale price. The complainant is also entitled for interest at the rate of 24% p.a. on the paid amount from 12.12.2015 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... However, due to the many reasons beyond the control of the Corporate Debtor like the registration of the case by CBI; COVID situation in 2020; pendency of matter before the Hon'ble High Court of Rajasthan, the project could not get completed though the Corporate Debtor had arranged for the acquisition of land, obtained permission to construct and got the loans sanctioned for the said project. 9. The Counsel for the Corporate Debtor further submits that as per Clause 25 of the Agreement to Sell, it was mutually agreed between the Petitioners and the Corporate Debtor that the Corporate Debtor shall be entitled for reasonable extension of time for delivery of possession of the flats if the said project is delayed due to any matters, issues relating to approvals, permissions, notices, notifications by the competent authority became subject matter of any suit/writ. It is further submitted that due to force majeure and the construction of the said project became the subject matter of the suit, therefore, the Corporate Debtor was entitled for reasonable extension of time for handing over the possession of the flats. Since the Corporate Debtor is entitled to extension of time for comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acknowledged the debts of the home buyers. The Petitioners are hopeful of getting their flats/homes after successful completion of construction and registry of final sale deeds. The Counsel for the Petitioners thus prays for the admission of the Petition. Findings: 15. The Bench notes that the Petitioners entered into an 'Agreement to Sell' dated 19.12.2012 with the Corporate Debtor wherein the Petitioners paid a sum of Rs. 32,00,000/- each to the Corporate Debtor for purchasing the flats which were to be delivered within 48 months plus 12 months grace period from the date of execution of this Agreement, subject to the force majeure conditions. However, the Corporate Debtor not only failed to hand over the possession of the flats till date but also failed to return the monies invested by the Petitioners to the tune of Rs. 34,76,19,780/-. 16. The relevant clauses of the said Agreement are extracted below: 24. That the SELLER shall, under normal conditions, complete the Complex, as per the plans designs and specifications seen and accepted by the ALLOTTEE(S) with such additions, alterations, deletions and modifications in the layout and building plans including the numb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any suit/writ before a competent court or due to force majeure conditions such as slow down, strike or due to a dispute with the construction agency employed by the SELLER, lock out or civil commotion or by reason of war or enemy action or terrorist action or earthquake or any act of God or any other reason beyond the control of the SELLER, the SELLER shall be entitled to reasonable extension of time for delivery of possession of the Demised Premises. The SELLER as a result of such a contingency arising, reserves the right to alter or vary the terms and conditions of this Agreement or if the circumstances beyond the control of the SELLER so warrant, the SELLER may suspend the project for such period as it might consider expedient. In case the SELLER is unable to complete the project on account of any law passed by the legislature or any other government agency, in that event the SELLER if so advised, shall be entitled to challenge the validity, applicability and/or efficacy of such legislation, rule, order and/or bylaw by instituting appropriate proceedings before court(s), tribunal(s) or authorities. In such situation, the amounts paid by the ALLOTTEE(S) shall continue to remain w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; (b) transferring, encumbering, alienating or disposing of by the Corporate Debtor any of its assets or any legal right or beneficial interest therein; (c) any action to foreclose, recover or enforce any security interest created by the Corporate Debtor in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act); (d) the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the Corporate Debtor. (II) That the supply of essential goods or services to the Corporate Debtor, if continuing, shall not be terminated or suspended or interrupted during moratorium period. (III) That the provisions of sub-section (1) of Section 14 shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator. (IV) That the order of moratorium shall have effect from the date of pronouncement of this order till the completion of the corporate insolvency resolution p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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