TMI Blog2021 (7) TMI 580X X X X Extracts X X X X X X X X Extracts X X X X ..... ertification on 21st March, 2016. The application under Section 7 of IBC (Page 39 of the Appeal) is dated 21st November, 2019. Record shows that the Financial Creditors also moved the National Consumer Disputes Redressal Commission in July, 2016 in which orders were passed and even written submissions were filed by the Developer and that the Financial Creditors were pursuing their remedies. The Balance Sheets of the Corporate Debtor have also been filed - The Respondent No. 1 Company of Flat Purchasers has been trying to get back the money deposited by Flat Buyers themselves. They have also pursued rights in Consumer Forum - there is no substance in the claim made by the Appellant that the debt is time barred. Admittedly, the amounts were collected by the Developer and kept with its subsidiary, the Corporate Debtor, for the purpose of maintenance till the Association/ Society or Holding Organization (i.e. Respondent No. 1) gets established to hand over the amounts to the body of the flat owners. Section 5(8)(f) Explanation makes it clear that any amount raised from an allottee under a real estate project shall be deemed to be an amount having the commercial effect of a borrow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Company. 4. Appellant claims that earlier against the Developer - M/s Avaani Projects and Infrastructure Ltd. there was separate CIRP initiated under Section 7 of IBC and that Respondent No. 1 Financial Creditor had filed statement of claim in that CIRP which was brought against the Developer Company. While such CIRP was pending, the Respondent No. 1 filed proceedings under Section 7 of IBC for the amounts deposited in terms of the agreement to sell, with the Developer. Appellant claims that the Corporate Debtor had appeared before the Adjudicating Authority and challenged the maintainability of the Section 7 IBC Proceedings filed and that the claim, if any, can be against the Developer Company and claim had been filed before the Resolution Professional of the Developer Company and that the debt was not a financial Debt. It is stated that still the Adjudicating Authority summarily concluded the matter and admitted the application. 5. The Appellant claims that the Developer - M/s Avaani Projects and Infrastructure Ltd. proposed to construct Avani Oxford a residential complex at Kolkata. Proposed buyers, who later became flat owners, had entered into agreement with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellant submitted that the Appellant was ready to transfer the money which was deposited by the flat buyers but the Appellant was not ready to pay interest and that the Appellant wanted to deduct amount spent on maintenance. 7. It is also argued that in the application under Section 7 of IBC date of default was not mentioned and only in the Reply which is filed in the Appeal by Respondent No. 1 in Para 20 it is stated that the second phase of Avani Oxford was completed on 21st March, 2016 and that the date of default is 21st March, 2016. The Learned Counsel for the Appellant submitted that Respondent No. 1 should have pursued its claim in the CIRP against the Developer and the present application filed under Section 7 was not maintainable. 8. Counsel for Respondent No. 1 submitted that when the matter had come up before the Adjudicating Authority, the Corporate Debtor did not dispute that it is a Financial Debt and issue of limitation was also not raised. It is admitted that Respondent No. 1 earlier filed claim in the CIRP which was filed against the Developer but when present application was filed under Section 7, the Respondent No. 1 had informed the Adjudicating Aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued that although the Corporate Debtor was to handover the amounts collected in terms of the Agreement and Conveyance, the same were not done and there was debt due and default and that the Adjudicating Authority rightly admitted the claim. 11. Having heard Learned Counsel for both the sides and having gone through the record, it is clear that the Sale Agreement executed between the Developer M/s Avaani Projects and Infrastructure Ltd. and the main land owner M/s Electrical Manufacturing Company Ltd. and the Corporate Debtor as Maintenance Company were to render common service and upkeep till the Association/Society of the flat owners was formed. The Corporate Debtor was to look after the maintenance till three years of the Deed of Conveyance by the respective purchasers with the Developer and Maintenance Company or so soon after completion of construction of Phase II of Avani Oxford whichever was later. The Appeal has also put on record that Avani Oxford Project received Completion Certification on 21st March, 2016. Section 7 application shows Respondent No. 1 was incorporated on 18th June, 2015 and Respondent No. 3 Corporate Debtor was incorporated on 4th May, 2010. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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