- (1.) This is an application filed under Section 9 of the Insolvency and Bankruptcy Code, 2016 (for brevity the 'Code') with a prayer for triggering insolvency process against M/s. Ozone Builders & Developers Private Limited. The Applicant has claimed that he is, an operational creditor, within the meaning of Section 9 read with Section 5(20) of the Code. He has named the respondent as Corporate Debtor.
(2.) Brief facts of the case necessary for disposal of the controversy may first be noticed. The Applicant has averred that in pursuance of the representations made by the respondent, he was induced to deposit advance amount for purchase of a plot in the Ozone City which is a residential township belonging to respondent with a promise for its allotment within a period of one year from the date of payment. Accordingly, he deposited a sum of Rs. 50,00,000/- (Rupees Fifty Lakhs only) for booking of plots. A sum of Rs. 30,00,000/- (Rupees Thirty Lakhs only) was paid on 22.02.2013 in cash against the receipt issued by the respondent. After a gap of three months, the balance amount of Rs. 20,00,000/- (Rupees Twenty Lakhs only) was again paid in cash, although no receipt was issued in respect of the balance payment despite the commitment to issue the same. According to the Applicant, the entire amount was to be refunded in case of non-confirmation of booking in the project within a period of one year. On the aforesaid basis, the Applicant has claimed that a sum of Rs. 30,00,000/- (Rupees Thirty Lakhs only) became due for refund after a period of one year on 22.2.2014 alongwith interest @18% per annum. It has been asserted by the Applicant that he made it absolutely clear to the respondent that he was no longer interested in the Project because the respondent had violated the terms and conditions on the basis of which the amount was deposited by the Applicant. The aforesaid facts have been admitted on 01.09.2016 before the Investigating Officer of Economic Offence Wing, Central Zone, Faridabad by the respondent. However, the Applicant has remained unsuccessful to recover the principal amount of Rs. 30,00,000/- (Rupees Thirty Lakhs only) plus interest.
(3.) The Applicant has claimed that a copy of the Demand Notice has already been served as per the requirement of Rule 5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 and has called upon the respondent to make payment of the due amount. According to the Applicant, in the reply sent on 06.02.2017, a motivated and false defence has been raised to dispute the demand raised by the Applicant. It has not been shown by the respondent that any suit or arbitration proceedings in terms of Section 8(2)(a) of the Insolvency and Bankruptcy Code are pending so as to stop initiation of insolvency process. It is pertinent to notice that in their reply dated 06.02.2017, the respondent has taken a stand that a sum of Rs. 30,00,000/- (Rupees Thirty Lakhs only) was deposited by the Applicant for taking allotment of plot/flat in Ozone City, Aligarh and the money was invested in the project. It was further clarified that the refund was not possible but they were committed to allot a unit to the Applicant and has given two options namely allotment of flats or land lying vacant with the respondent.;