Homebuyers with Recovery Certificates remain Financial Creditors under the IBC, allowing them to initiate CIRP despite prior claims for refunds.

ORDER

1. This Application has been filed on 19.01.2024 by 22 Allottees (Home Buyers) as the Applicant Financial Creditors as mentioned in Memo of Parties above, under Section 7 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred as “IBC/I&B Code/ the Code”) read with Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules 2016 against M/s NHA Infrabuild Private Limited (hereinafter referred as “Respondent Corporate Debtor”) in Form 1 containing all the information as required in Part I, II, III, IV and V of the Form showing a default in respect of the total financial debt pertaining to 22 allottees/Financial Creditors to whom 34 units of flats have been allotted amounting to Rs. 14,57,41,930.00 (Rupees Fourteen Crores Fifty Seven Lakhs Forty One Thousand Nine Hundred Thirty Only) which includes a sum of Rs. 5,71,35,420.00 (Rupees Five Crores Seventy One Lakhs Thirty Five Thousand Four Hundred Twenty Only) towards interest at rate 8% payable by the Respondent Corporate Debtor to the Applicant Financial Creditors as on 31.03.2023.

2. The Respondent Corporate Debtor i.e M/s INFRABUILD PRIVATE LIMITED with CIN No. U45201UP2022PTC168820 is having registered office at KH No. 210 Mauja Chamrauli Taj Nagri Phase-II Shamshabad, Fatehabad Road, Agra-U.P. 282001 and therefore, this tribunal has jurisdiction to decide this application.

3. The Respondent Corporate Debtor was incorporated by conversion of Firm M/s Nikhil Associates to M/s NHA Infrabuild Private Limited vide resolution dated 10.5.2022 and executed on 06.8.2022. The Respondent Corporate Debtor is engaged in development of Real Estate Projects and was developing a Project of Group-Housing- Residential Scheme by acquiring land in village Chamrauli, District Agra.

4. The Applicant Financial Creditors state that the Respondent Corporate Debtor has acquired the rights in said entire land through tripartite agreement executed amongst the NIKHIL HOME ASSOCIATES AGRA, MAA MANSA DEVI SHAHKARI AWAS SAMITI LTD Agra, a cooperative Society having registration No 3154 dated 20.08.2003 being the Legal owner of land measuring 2.0741 Hec Vd AGRI a/c no 07 Khasra No 210 situated at village & Mauja Chamrauli, Near TV Tower Shamshabad Road Agra is constructing a multistoried building complex consisting of residential flats of various sizes on different floors as per the Plan approved by the Agra Development Authority on 28.07.2012.

5. Applicant Financial Creditors also state that the Respondent Corporate Debtor has acquired marketing, construction, and development rights from the landowners of the land on which the impugned project is being constructed. The Respondent Corporate Debtor was assigned to collect the sale price from the allottees including Applicant Financial Creditors as per the terms of the agreement to sell. Accordingly, all the 22 Applicant Financial Creditors for allotment of units in the impugned project, filed application forms and then subsequently made payments to the Respondent Corporate Debtor. Thereafter, allotment letters were issued by the Respondent Corporate Debtor to each one of the Applicant Financial Creditors for the allotment of various units on a later date with a Flat Sale Agreement.

6. As further stated that as per the Flat Sale Agreement, the Respondent Corporate Debtor committed to handover the possession of the units within 3 years from the date of commencement of construction of the individual block with a grace period of 6 months. However, the Respondent Corporate Debtor failed to deliver the possession of the flats within the stipulated time period despite making full payments by the Applicant Financial Creditors. It is also alleged that till date the Project is not completed and is nowhere near completion as per the information available with the Applicant Financial Creditors and also, the Respondent Corporate Debtor has so far not given any information regarding the date of completion of the Project or of handing o