Ina Malhotra, Member - (1.) The present petition has been filed under Section 7 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as the "Code") . The petitioner has claimed to be a Financial Creditor and prays for initiation of Corporate Insolvency Resolution Process against the Corporate Debtor for its inability to pay its debt.
(2.) Brief facts of the case as averred in the petition are that the Corporate Debtor is engaged in the business of real estate and had floated a scheme for development of a Group Housing Residential Complex under the name "Shilpayaa K7" at Ansal API, Sushant Acquapolis, NH-24, Ghaziabad.
(3.) The Financial Creditor booked two flats on the 16th Floor, being flat nos. 1601 and 1605 having an area of approx. 1344 sq. ft. and 1250 sq. ft. for a total consideration of Rs. 79,29,858/-. A memorandum of understanding was also executed between the parties wherein the Corporate Debtor acknowledged the receipt of Rs. 40 lakhs, making it obligatory on the petitioner to pay the balance at the time of possession along with payment for any EDC and IDC. As per the said agreement, an option to seek refund of the aforesaid amount along with interest @ 27% per annum was also given to the Financial Creditor to be exercised on expiry of one year of the agreement, provided however, this option was conveyed to the Corporate Debtor one month prior to the expiry of the 12 months. The said agreement is reproduced as under:- "AND WHEREAS the Second Party is desirous of booking/ holding 02 No. of flats in the said Project under flexi payment plan of the First Party for a lock in period of one year with an option to either to exit from the Project with assured return of 27% after the expiry of the lock in period from the date of execution of this MOU or to sell the said flats prior to expiry of the one year period (directly) in the market or to continue and retain the same till completion of the project after making the balance payment under the flexi plan. AND WHEREAS the Parties agree that in the event the Second Party chooses the option of assured return, then in that even the second party has to inform one month in advance to the first party in writing of its decision to continue or not to continue with the hooking/ holding of the said flats and thereafter the first party would retun the deposit within next one month along with an assured return amount calculated @ 2.25% monthly till the date of actual return.";