TMI Blog2019 (10) TMI 1440X X X X Extracts X X X X X X X X Extracts X X X X ..... cants were executed in the year 2013. Accordingly, as per the Recital 'C' of the Agreement, the CD was required to deliver possession of the respective units latest by the year 2016 inclusive of grace period. Thus, the period of default has commenced latest by June 2016 for the applicants and is still subsisting whereas the present application was filed in January 2019. The contention of the CD is that it has been granted time till 2021 to complete the said project. It is found that the argument is completely fallacious, in as much as the same would not absolve the CD of its liability to honor the commitment made to the applicants herein as per the builder buyer agreement for the purposes of the Code. Merely because the builder has been provided a different time-line for completion of the project to the RERA would not cut any ice because IBC override RERA and secondly the financial creditor is not a party to any such transaction. Moreover, there is contravention of Recital 'C' of the Agreement. It is settled principle of law that wherever time is the essence of a contract in such types of construction contracts, the builder is required to adhere to the date of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 1500 sq.ft. e) The FCS and the CD executed an additional Agreement titled as Apartment Buyer Agreement Additional Agreement dated 18.4.2014 wherein the CD had promised to deliver the possession by the end of December, 2015 with best efforts, with an additional grace period of 180 days i.e. by June, 2016. It is pertinent to mention here that the CD has grossly failed to deliver the possession within the stipulated time and the same has frustrated the purpose of purchasing the unit by the FCS. f) The FCS adhered to the payment plan and made the payments as and when demanded by the CD. The FCS have also taken a loan of ₹ 35 lacs from the State Bank of India and the same has been duly repaid by the FCS. The FCS till date have paid a total amount of ₹ 47,33,149/- to the CD. g) In view of the considerable delay being caused by the CD in completion of the project and being faced with uncertainty of the Project ever attaining completion, the FCS terminated the Agreement vide e-mail dated 6.12.2018, thereby demanding the CD to refund the entire amount paid by the FCS along with the interest. h) The total amount due as on 6.12.2018 is ₹ 72,19,848/-, which incl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it issued a notice dated 23.9.2014 upon the Society for seizing construction activities on the said plot after which the society filed another contempt case against the NOIDA Authority before the Ld. Civil Judge, Gautam Budh Nagar for disobeying with the judicial orders which is pending adjudication. f) The Society also challenged the said Notice of Noida Authority before the Hon ble Allahabad Court in Writ Petition 36329 of 2015, wherein the Court was pleased to grant an injunction in favor of the Society and against Noida Authority vide its Order dated 03.07.2015. The proceedings in the said writ petition are presently pending adjudication. The court also directed the CD to raise further constructions at their own risk and peril but restrained them from making any allotment of the flats or pre- possession top the prospective purchasers during the pendency of the writ petition. g) The CD despite all these roadblocks continued with the construction of the project and has till date completed about more than 60% of the total construction work. h) The CD further contends that the instances leading to a delay in the completion of the Project were beyond his control and constit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... However, in case of the abandonment of the project on this account, the Allottee shall have the option to seek refund of consideration plus simple interest thereon @ 6% per annum from the date of force majeure conditions. 6. The CD has miserably failed to deliver possession of the said residential units, even though as per the builder buyer agreement the possession was to be delivered within a time of span of 36 months from the date of agreement with a further grace period of 180 days. Thereby admitting the existence of a 'financial debt' and a 'default'. 7. Upon a further perusal of the Project Basic Information available with Uttar Pradesh Real Estate Regulatory Authority it can be seen that the original start date of 8.08.2013 was modified and changed to 01.01.2018 and the proposed end date of the said project is 31.12.2021. Section 88 of RERA provides that RERA shall be in addition to, and not in derogation of, the provisions of any other law for the time being in force. Further, Section 89 of RERA provides that the provisions of RERA shall have effect, notwithstanding anything inconsistent contained in any other law for the time being in force. Likewise b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Moreover, there is contravention of Recital 'C' of the Agreement. 11. 1t is settled principle of law that wherever time is the essence of a contract in such types of construction contracts, the builder is required to adhere to the date of delivery mentioned in the builder-buyer agreement despite the presence of similar reservations in the contract. We are supported by the observations of Hon ble National Consumer Disputes Redressal Commission in the case of Pradeep Narula v. Granite Gate Properties Pvt. Ltd., 2016 SCC Online NCDRC 1050. The learned commission has negatived a similar contention and held as under: 5. Despite use of the words the company shall endeavor to complete the construction , I am of the view that unless prevented by reasons beyond its control, the opposite party was under a contractual obligation to complete the construction and hand over possession of the apartments to the complainants within 39 months from the date of allotment .. 12.1t is submitted that RERA and IBC work in two different fields, while the former has been enacted with a view to regulate and promote the real estate sector while ensuring the protection of consumer int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pta, having Registration number: IBB1/IPA-001/1P-P01131/2018-2019/11826 is appointed as the IRP and he shall strictly act in accordance with the provisions of IBC and the attendant Rules enjoined upon him; b. In terms of Section 14, as reproduced hereunder, the CD shall be under moratorium on the following terms: (a) the institution of suits or continuation of pending suits or proceedings against the CD including execution 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 CD 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 CD in respect of its property including any action under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; (d) the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the CD. c. However during the pendency of the moratorium period in terms of Section 14(2) and 14(3) as extracted hereunder: (2) The supply of essential ..... 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