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TMI Blog2022 (8) TMI 503X X X X Extracts X X X X X X X X Extracts X X X X ..... y Petition, which are relevant to the issue in question, are as follows:- a) The Petitioners submit that the Corporate Debtor M/s. Som Resorts Private Limited was incorporated under the Companies Act 1956, and launched a commercial cum residential project in December, 2012 under the name and style of 'Casa Italia' at the land admeasuring 1243.3 sq. mtrs. allotted by UP Housing Development Board bearing Plot No. ML-9/1, Vasundhara, Ghaziabad, UP. b) The petitioners submit that the Corporate Debtor vide agreement dated 10.10.2013 appointed M/s. Cosmic Structures Limited ('CSL') as its marketing agency for the marketing and advertising of the project 'Casa Italia'. c) The petitioners submit that during the period 2012 to 2015, the Financial Creditors/Petitioner No. 1 to 26 had booked space in 'Casa Italia' project of the corporate debtor namely M/s. Som Resorts Private Limited and had made payments to the Corporate Debtor and its agent Cosmic Structures Ltd. for the booked space in the Project 'Casa Italia' with assured possession of the unit within the stipulated time. The petitioners further submit that Petitioners and Corporate Debtors ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or promised to be responsible and accountable for the payments which were otherwise received by M/s. Cosmic Structure Limited from the petitioners towards the booked units in 'Casa Italia' and shall be deemed to have been made in the name of the M/s. Som Resorts Private Limited i.e., the corporate debtor. i) The petitioner petitioners submit that pursuant to the Memorandum of Settlement dated 14.09.2018 and other considerations, the Hon'ble High Court while disposing CA 631/2017 was pleased to de-seal the property of project 'Casa Italia' bearing No. ML-9/1, Vasundhara, Ghaziabad. The Petitioner further submits that subsequently based on the aforesaid Memorandum of Settlement, Corporate Debtor was able to obtain the order from the Court of Ld. ACMM, Patiala House Court wherein de-freezing of A/c No. 3311367206 was allowed. j) The petitioners submit that despite the repeated requests to the Corporate Debtor through various correspondences to revert the transaction amount respectively, but the efforts went in vain as no appropriate reverts were received from the Corporate Debtor. The petitioners further submit that the acts of the Corporate Debtor clearly repr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation, which includes the amount paid by several buyers other than the petitioners herein. d) The respondents submits that M/s. Cosmic Structures Limited went into winding up proceedings and it is an admitted position that M/s. Cosmic Structures Limited did not release the entire amount to the respondent, it had collected for the project 'Casa Italia' except to the tune of Rs. 1,45,03,185/-.The respondent further submits that all these supervening events were not only beyond the control of the respondent but also outside the knowledge of the respondent which led to difficulties in the implementation of the project 'Casa Italia'. e) The respondent submits that the respondent and the petitioners being fully aware of the illegalities carried out by M/s. Cosmic Structures Limited entered into a settlement agreement/memorandum of settlement dated 14.09.2018. The respondent submits that in terms of the memorandum of settlement dated 14.09.2018, following material acts were required to be performed by the petitioners and respondent in seriatim i.e., Since in the present case, the allotment and agreements were entered into between the petitioners and Cosmic directly wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erms of Section 3(12) of the Code, 2016. b) The Petitioners submit that the petitioners being aggrieved by the fraudulent acts of the corporate debtor and lapse of considerable amount of time, the petitioners filed a complaint and lodged FIR No. 108/2017 before Economic Offence Wing. The petitioners further submit that the corporate debtor wrote a letter dated 14.;11.2017 to the EoW, admitting that the petitioners have booked a unit in the Project 'Casa Italia' either directly or through its agent M/s. Cosmic Structures Limited and there are total of 69 homebuyers. c) The Petitioners further submit that consequently on the request of the corporate debtor, the petitioners entered into a tripartite full and final settlement agreement/memorandum of settlement dated 14.09.2018, wherein the corporate debtor sought a time period of 18 months from the date of de-sealing of the project by the project by the Hon'ble High Court, Delhi and the said project was de-sealed by the Hon'ble High Court, Delhi vide its order dated 30.01.2019, however, due to lapse on the part of the corporate debtor, the project was actually de-sealed on 23.05.2019. d) The Petitioners submit tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Petition (Civil) No. 413 of 2019). c) Karon Goel vs. M/s. Pashupati Jewellers & Anr. (Company Appeal (AT)(Ins) No. 1021 of 2019), Vinayaka Ex[ports & Anr. vs. M/s. Colorhome Developers Pvt. Ltd. (Company Appeal (AT)(Ins) No. 06 of 2019) wherein the Hon'ble NCLAT held that pendency of dispute or any civil-criminal proceedings is not a bar to admit the petition under Section 7 of the Code, 2016. 6. Ld. Counsel for the respondent relied on the following judgments: a) Pioneer Urban Land and Infrastructure Ltd. & Anr. vs. Union of India & Ors. (Writ Petition (Civil) No. 413 of 2019). b) Anil Kumar Tusiani v. Rakesh Kumar Gupta and Anr. Company Appeal (AT) (Ins) No. 35 of 2019. c) Ankit Goyal v. Sunita Agrawal and Anr. Company Appeal (AT) (Ins) No. 1020 of 2019. d) Flat Buyers Association Winter Hills-77 Gurgaon v. Umand Realtech Pvt. Ltc and Ors. Company Appeal (AT) (Ins) No. 926 of 2019. 7. We have heard Ld. Counsels for both the parties and perused the averments made in this petition, reply and rejoinder filed by the parties. The relevant documents annexed with the respective submissions have been examined in detail. On the basis of the pleadings, the following points ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... account of Couid-19 Virus and resultant difficulties that may be faced by litigants across the Country in filing their Petitions/Applications/Suits/Appeals/all other proceedings within the period of limitation prescribed under the general law of limitation or under Special Laws (both Central and/or State)..... 10. With regard to the issue of the claim of the petitioners being barred by the law of limitation, we observe that the cause of action or default in the case of homebuyers arises only when the agreed/promised date of possession as per the builder buyer agreement has lapsed and till date the possession is not handed over. Given the fact that the default is for the date of possession only, the limitation for the said period does not end because the date of possession does not arrive, until and unless the project is completed and the possession is handed over to the homebuyers/petitioners, thereby, resulting in a continuing/recurring cause of action in the case before us. This settled proposition of law has been reiterated by the Hon'ble Supreme Court in the matter of Samruddhi Co-operative Housing Society Ltd. v. Mumbai Mahalaxmi Construction Private Limited (Civil Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 is purely an agency agreement, wherein M/s. Cosmic Structures Limited was acting as an agent of the Corporate Debtor. 14. In National Textile Cooperation Ltd. vs. Nareshkumar Badrikumar Jagad & Ors.(CIVIL APPEAL NO. 7448 of 2011), Hon'ble Supreme Court held that "the expression 'agency' is used to connote a relation that exists where one person has authority or capacity to create legal relation between the person occupying the position of principal and third party. In fact Section 182 of the Indian Contract Act, 1872, defines an agent as a person employed to do any act for another, or to represent others in dealings with third parties and the person for whom such act was done or who was so represented was so-called "the principal". An agent is merely an extended hand of the principal and cannot claim independent rights. From the above, it can he inferred that an agent can conduct the business of his principal according to the custom and business practices which prevail in the relevant industry." 15. At this juncture, it is advantageous to refer principle laid down in the case of Chairman, Life Insurance Corporation vs. Rajiv Kumar Bhasker reported in (2005) 6 SCC 18 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd payable by the respondent to the petitioner, wc are of the view that the marketing agreement dated 10.10.2013 between the corporate debtor and M/s. Cosmic Structures Limited is a matter of internal affairs of the corporate debtor and the petitioners being outsider are not privy to the internal affairs of the corporate debtor and doctrine of indoor management applies herein, therefore, it is not open to the corporate debtor to take advantage of such irregularity at the cost of the petitioners. 18. In this connection, it would be advantageous to refer the case decided by Hon'ble Calcutta High Court, Charnock Collieries Co. Ltd. v. Bholanath Dhar, where the Hon'ble High Court, held "the lender has the right to presume that the managing agent was authorized or approved by the Board, of Directors. When the lender advanced money to the firm, he was allowed to believe that the managing agent had received the permission of the Board of Directors for the borrowing of certain amounts." 19. We are further of the view that whether M/s. Cosmic Structures Private Limited was sufficiently empowered to allot, sanction the units and receive the payments were all issues which were beyon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Resorts Private Limited) has used another corporate entity M/s. Cosmic Structures Limited to enter into builder buyer agreements and collect the money from the petitioners with an ulterior motive to conceal the real transaction. Moreover, while discerning true nature of the entire transaction, we have not to merely see that payment has been made to M/s. Cosmic Structures Limited, but also the substance that payments for the units booked in project 'Casa Italia' are towards the Builder Buyer Agreements which are duty executed between the homebuyer and corporate debtor as the developer. It would not be fair to the petitioners/homebuyers, if the corporate debtor indirectly achieved its agenda i.e., defrauding homebuyers in the disguise of separate legal entity by concealing the real nature of the transaction, what could not be achieved directly. 24. Consequently, having regard to the Code being a beneficial piece of legislation, we are inclined in favor of the hapless homebuyers and lift the 'Corporate Veil' of M/s. Som Resorts Private Limited to look into the real nature of transactions, so that any such maneuvering by M/s. Som Resorts Private Limited (corporate deb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... projects, money is raised from the allottee, being raised against, consideration for the time value of money. Even the total consideration agreed at a time when the flat/apartment is non-existent or incomplete, is significantly less than the price the buyer would have to pay for a ready/complete flat/apartment, and therefore, he gains the time value of money. Likewise, the developer who benefits from the amounts disbursed also gains from the time value of money. The fact, that the allottee makes such payments in instalments which are co-terminus with phases of completion of the real estate project does not any the less make such payments as payments involving "exchange", i.e. advances paid only in order to obtain a flat/apartment. What is predominant, insofar as the real estate developer is concerned, is the fact that such instalment payments are used as a means of finance qua the real estate project 27. Further, on perusal of the Clause 1 of MOS dated 14.09.2018, we find that the corporate debtor had duly acknowledged the payments made by the petitioners to M/s. Cosmic Structures Limited towards the units booked in project 'Casa Italia'. The relevant extract of Clause 1 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Code, 2016 read with Rule 4(2) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 and is complete. We are satisfied that there is a debt of more than Rs. 1 crore i.e., above the threshold limit as envisaged under Section 4 of the Code, 2016 and the same is in default. 31. In light of the reasons stated above, after giving careful consideration to the entire matter, hearing the arguments of both the parties and upon appreciation of the documents placed on record to substantiate the claim and averments, we hereby admit the instant petition (C.P.(IB)/67(ND)/2022) and accordingly Corporate Insolvency Resolution Process against the M/s. Som Resorts Private Limited ('Corporate Debtor') is initiated. 32. Sub-section (3) (b) of Section 7 mandates the financial creditor to furnish the name of an Interim Resolution Professional. In compliance thereof the applicant has proposed the name of Mr. Sumit Shukla, for appointment as Interim Resolution Professional having registration number IBBI/IPA-003/IP-N00064/2017-2018/10550 having office at C-401, Ithum, Plot No. 40, Sector 52, Noida with email - id. [email protected]. Mr. Sumit Shukla has a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... security interest created by the corporate debtor 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 corporate debtor." (e) The IB Code 2016 also prohibits Suspension or termination of any license, permit, registration, quota, concession, clearances or a similar grant or right given by the Central Government, State Government, local authority, sectoral regulator or any other authority constituted under any other law for the time being in force, on the grounds of insolvency, subject to the condition that there is no default in payment of current dues arising for the use or continuation of the license, permit, registration, quota, concessions, clearances or a similar grant or right during the moratorium period." 37. It is made clear that the provisions of moratorium shall not apply to transactions which might be notified by the Central Government or the supply of the essential goods or services to the Corporate Debtor as may be specified, are not to be t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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