TMI Blog2021 (6) TMI 125X X X X Extracts X X X X X X X X Extracts X X X X ..... ers have filed the petition which neither amounts to 10% of the total class of financial creditors or 100 Financial Creditors and therefore this petition cannot be entertained. In the instant case, the Petitioner has already obtained order from the relevant forum under the RERA Act and the same can be executed before relevant forum. A case under the Code, 2016 is not made out as the petition is clearly an attempt to substitute the recovery mechanism and amounts to forum shopping. Further, since the Petitioner does not meet the minimum threshold of 10% of Financial Creditors of the same class, the petition fails and deserves to be dismissed - the Petitioner has made out a case that it is before this Tribunal basically to seek execution of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 4 of Insolvency and Bankruptcy (Petition to Adjudicating Authority) Rules, 2016 for initiating Corporate Insolvency Resolution Process against the Respondent claiming a default of financial debt of ₹ 1,41,44,209/- (Rupees One Crore Forty One Lakh Forty Four Thousand Two Hundred and Nine Only) as on 31.08.2019. 2. Brief facts of the case as stated in the petition are listed below: (1) The Applicant booked an apartment bearing No. H 1405 in Project Mantri Webcity being developed by the Corporate Debtor vide 'agreement of sale' hereinafter referred as BBA dated 12.08.2014 and 'agreement for construction' referred to as AFC dated 12.08.2014 for a total sale consideration value of ₹ 85,72,813/-. Apart from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed for an extension till March 2018 for effecting closure of the Buy-back. The Respondent soon thereafter shared revised calculations vide email dated 28.11.2017 and assured releasing its payments. The Corporate Debtor also defaulted in paying pre-EMI of ₹ 5,84,494/-. On 14.03.2018 the Corporate Debtor vide email again assured the Applicant that the entire due amount will be paid. (5) The Applicant issued Legal Notice dated 26.10.2018 through Legal Counsel calling upon the Respondent to refund the full and final settlement including amount that PNBHFL has disbursed, total settlement amounting to ₹ 1,55,90,914/- within 15 days of receipt of Notice. (6) The Applicant approached Karnataka RERA, Bengaluru under section 31 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esolution Process against a Developer. That the petition is liable to be dismissed on this ground alone. The Respondent submits that the petitioner is a speculative investor and not a financial creditor. (3) The Respondent has produced its financial statements for the year 2018-19 showing that the company is solvent. The Respondent states that the company has direct 370 employees, 1200 employees indirectly employed through contractors. (4) It is further submitted that clause 21 of the Construction Agreement dated 12.08.2014 and clause 10 of the Agreement for sale of undivided interest dated 12.08.2014 provides for settlement of dispute through arbitration by appointing a Sole arbitrator. (5) The Respondent has placed reliance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spective submissions have been examined. 7. At the outset, it is made clear that as per the Insolvency and Bankruptcy Code, (Amendment) Ordinance, 2019 dated 28.12.2019 the financial creditors who are homebuyers of Real Estate Project can file a petition under section 7 of the Code, 2016, jointly only if there are 100 of such homebuyers or if they are 10% of total homebuyers whichever is less. However, in the instant petition, only 2 Homebuyers have filed the petition which neither amounts to 10% of the total class of financial creditors or 100 Financial Creditors and therefore this petition cannot be entertained. 8. We may further clarify that it is a settled position of law that the provisions of Code cannot be invoked for recovery ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d therefore, a decree holder cannot initiate a CIRP against a corporate debtor with an object to execute a decree. It cannot file an application U/s 7 of IBC as the amount claimed under a decree being an adjudicated amount was not a consideration for time value of money, and therefore, does not fall within the realm of Section 5(8) of the IBC. In giving this decision, the Hon'ble NCLAT also considered its earlier decision in its order dated 07.02.2020 in the matter of G. Eswara Rao Vs. Stressed Assets Stabilization Fund Ors where also it had held that a Decree cannot be executed by filing an Application U/s 7 of the IBC. In the instant case the Petitioner is before this Tribunal mainly to execute its decree and hence would not be elig ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
