Barkha Agarwal vs Kunal Structural Developers & Industries Private Limited

PER SHRI L. N. GUPTA, MEMBER (T)

Ms. Barkha Agarwal (for brevity, the ‘Financial Creditor’) has filed the present Petition under the Section 7 of the Insolvency and Bankruptcy Code, 2016 (for brevity, the ‘IBC, 2016’) read with Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 with a prayer to initiate the Corporate Insolvency process against Kunal Structural Developers & Industries Private Limited (for brevity, the ‘Corporate Debtor’).

The Corporate Debtor namely, Kunal Structural Developers & Industries Private Limited is a Company incorporated on 26.06.2007 under the provisions of the erstwhile Companies Act, 1956 with CIN U45400DL2007PTC165199, having its registered office at 108-109, 1^st Floor, 5 Pusa Road, Near Karol Bagh Metro Station, New Delhi-110005, which is within the jurisdiction of this Tribunal.

The Authorized Share Capital of the Corporate Debtor Company is Rs. 1,00,00,000/- and Paid-up Share Capital of the Company is Rs. 25,00,000/- as per the master data annexed with the Application.

It is stated by the Applicant that she has been allotted with 06 flats/units in the ‘Nikhil Woodland Apartment’ project, Kakretha, Agra, details of which are given overleaf :

That the Applicant has added that the details of the payments made towards the aforesaid flats are given below:

It is further stated by the Applicant that the time period for possession of flats was not specified in the allotment letters dated 09.07.2013. It has been added that during the year 2017, the Applicant came to know that the Corporate Debtor had given possession to 29 flat owners and executed the Sale Deed in favour of their owners. On coming to know about this, the Applicant immediately wrote a letter dated 28.07.2017 to the Corporate Debtor for handing over possession of the Applicant's 6 flats.

That the detailed particulars of the financial debt including the total amount of default and the date of default as averred in the Part IV of the application are reproduced below :

From the perusal of the pleadings, it is evident that the total unpaid financial debt claimed by the Applicant amounts to Rs. 28,496,954/- and the date of default relied by the Applicant is 01.08.2017.

That in order to establish that the Applicant is an allottee, the Financial Creditor has annexed the letters of allotment of the units with the application. That one such letter of allotment is reproduced overleaf :

That the Applicant has also annexed with its application, the Builder-Buyer Agreement for each of the units allotted.

In addition to this, the following Tripartite Agreements have been placed by the Applicant, whereby loans have been taken by the Applicant from M/s. Tata Capital Housing Finance Limited and M/s. Indiabulls Housing Finance Limited by mortgaging the aforesaid units.

That in order to establish default, the Applicant has placed emphasis on the letter dated 01.08.2017 issued by the Corporate Debtor to the Applicant, whereby the Corporate Debtor has sought time to either register the sale deed in favour of the Applicant or to refund the money with 18% interest. The scanned copy of the aforesaid letter is reproduced overleaf :

That as regards to the maintainability of the present application, it is stated by Applicant that she has been allotted with 06 units out of the total 48 units in the project namely ‘Nikhil Woodland Apartment’, which is more than 10% of the total number of allotees in the aforesaid project. That in order to support its submission regarding 48 units being in the aforesaid project, the Applicant has annexed a copy of RTI reply received from the Agra Development Authority, which has clearly confirmed this fact. The copy of RTI reply annexed with the application is reproduced below :

After hearing submissions of Applicant and perusing the documents placed on the record, this Bench is of the view that Applicant has been able to establish that the application filed under Section 7 of IBC is by an ‘allotee’ in terms of the proviso to Section 7(1) of IBC, 2016, as it has been filed by an allottee having allotment of more than 10% of the units in the project.

That despite opportunities, the Corporate Debtor failed to appear or file reply and therefore, its right to file reply was closed on 16.12.2021 and the case was posted for the final arguments. During the hearing on 19.04.2022 also, none appeared for the respondent. Hence, the Corporate Debtor/respondent has failed to give any cogent reason that as why the CIR process shall not be initiated against it.

In the given facts and circumstances, the present Petition being complete and the Financial Creditor/Applicant having established the default in payment of the Financial Debt for the default amount being above the threshold limit, the present Petition is admitted in terms of Section 7(5) of the IBC, 2016 and accordingly, moratorium is declared in terms of Section 14 of the IBC, 2016. As a necessary consequence of the moratorium in terms of Section 14(1) (a), (b), (c) & (d), the following prohibitions are imposed, which must be followed by all and sundry:

As proposed by the Financial Creditor, this Bench appoints Mr. Pramod Kumar Sharma as IRP having IBBI/IPA-002/IP-N00110/2017-18/10258 (Email: [email protected]), subject to the condition that no disciplinary proceedings are pending against the IRP so named and disclosures as required under IBBI Regulations, 2016 are made by him within a period of one week from this Order. This Adjudicating Authority orders that :

The Financial Creditor is directed to deposit Rs. 2,00,000/- (Two Lakhs) only with the IRP to meet the immediate expenses. The amount, however, will be subject to adjustment by the Committee of Creditors as accounted for by Interim Resolution Professional and shall be paid back to the Financial Creditor.

A copy of this Order shall be communicated to the Applicant/Financial Creditor, the Corporate Debtor and the IRP mentioned above by the Registry/Court Officer of this Tribunal.

In addition, a copy of the Order shall also be forwarded by the Registry/Court Officer to the IBBI for their records.