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TMI Blog2021 (12) TMI 1271X X X X Extracts X X X X X X X X Extracts X X X X ..... ne Thousand One Hundred And Sixty) towards interest at rate of 2% per month as per the Agreement. The Financial Creditor states that default occurred on 11th January 2019. The amount was provided for period of 3 years on 11th January 2016. 2. The Corporate Debtor is a Public company limited by shares and incorporated on 03.12.2008 under the Companies Act, 1956, with the Registrar of Companies, Maharashtra, Mumbai. Its Corporate Identity Number (CIN) is U70102MH2008PTC188635. Its registered office is at 603, Nandlal CHSL, Riddhi Palace, S.V. Road, Borivali (West), Mumbai - 400092, Maharashtra, India. Therefore, this Bench has jurisdiction to deal with this petition. Submissions made by Financial Creditor by way of Application/Petition: 3. On 11.01.2016, Rs. 90,00,000/- (Rupees Ninety Lakhs) was transferred to Corporate Debtor and its promoter and on 08.03.2016, the Financial Creditor advanced further Rs. 5,00,000/- (Rupees Five lakhs). Hence the total of Rs. 95,00,000/- (Rupees Ninety-Five lakhs) was given to Corporate Debtor. [Exhibit A, Page 22 and page23 of the Petition is proof of loan given]. 4. The amount was provided for period of 3 years at rate of 2 percent. Hence the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s relying on the Letter of Mortgage dated 11th January 2016 but is deliberately concealing the fact that the same was superseded by the Letter of Allotment which was issued later on the same date. B. NO FINANCIAL DEBT IS DUE AND PAYABLE BY CORPORATE DEBTOR COMPANY TO THE FINANCIAL CREDITOR: 11. It was submitted that the Financial Creditor fails to prove that any Financial Debt as contemplated under the provisions of the code is due and payable by the Corporate Debtor Company to the Financial Creditor. 12. The Corporate Debtor states that Financial Creditor fails to disclose/provide/annex any Financial Contract as defined under Rule 3(d) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. The relevant provision is reproduced herein for ready reference: "Financial contract" means a contract between a corporate debtor and a financial creditor setting out the terms of the financial debt, including the tenure of the debt, interest payable and date of repayment; 13. In view of the failure to establish any financial contract wherein the Corporate Debtor Company is liable to repay the alleged amount of Rs. 2,43,89,160/-, the Company Petition deserves ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... class, whichever is less: Provided further that for financial creditors who are allottees under a real estate project, an application for initiating corporate insolvency resolution process against the corporate debtor shall be filed jointly by not less than one hundred of such allottees under the same real eastate project or not less than ten per cent of the total number of such allottees under the same real estate project, whichever is less: Provided also that where an application for initiating the corporate insolvency resolution process against a corporate debtor has been filed by a financial creditor referred to in the first or second provisos and has not been admitted by the Adjudicating Authority before the commencement of the Insolvency and Bankruptcy Code (Amendment) Act, 2020, such application shall be modified to comply with the requirements of the first or second provisos as the case may be within thirty days of the commencement of the said Act, failing which the application shall be deemed to be withdrawn before its admission"... 17. Therefore, the Corporate Debtor submits that this petition cannot be maintained as the Financial Creditor fails to meet the requisit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n that after opting to purchase a flat, Corporate Debtor did not request for alleged security deposit cheque. Hence the contention of Corporate Debtor is false and baseless. ii. Further in order to protect the Financial transaction, letter of mortgate and letter of Allotment were entered on the same day. 19. It is therefore submitted the amounts were advanced as loans for period and interest that was agreed. The mortgage deed and letter of allotment were executed in order to protect the loan amount. In other words the transaction can be called as a secured loan transaction. The reason of of securing the loan amount vide two separate documents is addressed above. It is denied that Financial Creditor has been enquiring for possession of the Flat in capacity of Allotee. In fact, Financial Creditor was interested in capacity of secured creditor so that the security can be invoked and loan amounts can be realised. 20. It is also submitted that the issue of flat purchasers suffering and adjusting the flat purchasers in another project is an attempt to gain sympathy. The Corporate Debtor is trying to misguide the Hon'ble Tribunal. The question of alloting a new flat in another project ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 188635], the Corporate Debtor, is admitted. (b) There shall be a moratorium under section 14 of the IBC, in regard to the following: (i) The institution of suits or continuation of pending suits or proceedings against the Corporate Debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; (ii) Transferring, encumbering, alienating or disposing of by the Corporate Debtor any of its assets or any legal right or beneficial interest therein; (iii) 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 (SARFAESI) Act, 2002; (iv) The recovery of any property by an owner or lessor where such property is occupied by or in possession of the Corporate Debtor. (c) Notwithstanding the above, during the period of moratorium: (i) The supply of essential goods or services to the corporate debtor, if continuing, shall not be terminated or suspended or interrupted during the moratorium period; (ii) That the provisions of sub ..... X X X X Extracts X X X X X X X X Extracts X X X X
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