Kanthi Narahari JUDGMENT
Sudhansu Jyoti Mukhopadhay, J. (Chairperson)
1. Pursuant to an application filed by Ms. Shilpa Jain and Mr. Akash Jain (allottees) (1st and 2nd Respondents) under Section 7 of the Insolvency and Bankruptcy Code, 2016 ("I&B Code" for short), the Adjudicating Authority (National Company Law Tribunal), Special Bench, New Delhi, by impugned order dated 20th August, 2019 initiated 'Corporate Insolvency Resolution Process' against 'Raheja Developers Ltd.'- ('Corporate Debtor').
2. The Appellant, Shareholder/Promoter has challenged the order alleging fraudulent and malicious initiation of proceedings with an intent for any purpose other than for the resolution of insolvency or liquidation. It was also alleged that the application under Section 7 was barred by limitation and was otherwise not maintainable on different grounds.
Brief facts of the case:-
3. The 1st and 2nd Respondents-allottees had booked an apartment in the Residential Project- 'Raheja's Sampada' being developed by the 'Corporate Debtor'. In pursuance of the same, the 'Corporate Debtor' issued a joint allotment letter dated 3rd August, 2012 and executed a Flat Buyer's Agreement dated 3rd August, 2012. They disbursed total Rs. 86,62,691/- to the 'Corporate Debtor' on different dates as mentioned in Part-IV of Form-1 (application under Section 7). In support of the claim, receipts issued by the 'Corporate Debtor' and ledger account of the 'Corporate Debtor' were enclosed.
4. It was alleged that as per Clause 4.2 of the Buyer's Agreement, possession of the Apartment was to be provided within 36 months commencing from 3rd August, 2012 which came to an end on 3rd August, 2015 but the construction was not completed.
5. As per Clause 4.2, in case the construction is not complete within time the 'Corporate Debtor' is under obligation to pay the allottee(s) compensation @ Rs. 7/- per sq. ft. of the super area per month for the entire period of such delay. The said Clause 4.2 also postulates that the aforesaid compensation @ Rs. 7/- per sq. ft. of the super area per month for the entire period of such delay was to be adjusted at the time of conveying the apartment and not earlier and it will be treated as distinct charge.
6. On filing of the application under Section 7, the 'Corporate Debtor' took specific plea that the notice of possession was issued as back as on 15th November, 2016 and in spite of repeated request to take possession, the allottees have refused to take possession.
7. It was also brought to the notice of the Adjudicating Authority (National Company Law Tribunal) that the 'Corporate Debtor' had filed a Writ Petition before the Hon'ble Supreme Court of India challenging the constitutional validity of explanation to Section 5(8)(f), Section 7, Section 21(6A)(b) and Section 25A of the 'I&B ........