ORDER

Per: Bachu Venkat Balaram Das, Member (Judicial) Date: 04.05.2023

1. This is an application filed by M/s. The Verandas Apartment Owners Association to initiate corporate insolvency resolution process (“CIRP”)

against M/s.

Saluja Construction Company Ltd. under Section 7 of the Insolvency and Bankruptcy Code 2016 (“the Code”)

for the alleged default on the part of the Respondent in settling an amount of Rs.

12,48,15,750/- (Rupees Twelve Crores Forty Eight Lacs Fifteen Thousand Seven Hundred Fifty only). The details of transactions leading to the filing of this application as averred by the Applicant are as follows:

i.

That sometime in 2010-11, the Corporate Debtor had launched the Project comprising of high rise Apartments on the land ad-measuring approx.

8.972 Acres, forming a part of a Residential Colony, named "Suncity", in Sector-54, Village Haiderpur Viran, District Gurgaon, Haryana.

ii. That as per the Allotment Letters, as well as the Clause 10.1 (d) of the Flat Buyer's Agreements of the Apartment Owners, the Corporate Debtor collected a Maintenance Security Deposit @ Rs. 125/- per Sq. Ft. of the Super Area of each flat of the Project.

iii. That pursuant to the said Clause the Corporate Debtor collected an amount of Rs.

12,48,15,750/- (Rupees Twelve Crores Forty Eight Lacs Fifteen Thousand Seven Hundred Fifty only) from the Apartment Owners. Further, as per the said Clause, the Corpus so collected by the Corporate Debtor was to be handed over to the Society as and when it was formed.

iv. That it was legally determined on 18.05.2015 that the society formed by the Owners/the present Applicant ie. the Financial Creditor is the duly constituted Society to manage the Project (as also to get handed over the Maintenance Deposit). However, despite this, the Corporate Debtor did not transfer the Maintenance Corpus to the Financial Creditor.

v. That the Corporate Debtor on 04.12.2017 had filed a consumer complaint against the Corporate Debtor before the NCDRC, bearing CC No. 3577/2017 inter-alia seeking transfer of the Corpus, whereby, the Corporate Debtor has not filed any reply/participated despite service and were proceeded ex-parte on 11.01.2019. vi. That the statutory period having elapsed, the debt being admitted and due in any case from the date of default.

There is a statutory presumption that the Corporate Debtor is unable to pay its debts and therefore, the corporate insolvency process should be initiated against them.

vii.That due to the fact that the Maintenance Deposit collected by the Corporate Debtor included both "Interest Bearing Maintenance Deposit" or "IBMS" as well as "Interest Free Maintenance Deposit" or "IFMS", the Corporate Debtor is hence, liable to pay the outstanding legal debt amounting to as on date, along with the applicable interest to the members who were the IBMS w.e.f. the date of the payment made to the Corporate Debtor, whereas, interest shall applicable to the members assured IFMS from 18.05.2016 i.e. the date when the rights of the Society got crystallized by the Ld. Registrar of Societies, till the date of payment/refund by the Corporate Debtor.

2. Consequent to the notice issued by this Tribunal, the Respondent filed its reply in which the following contentions were made:

i.

That when there is no amount, which is "in default" of payment by the Respondent to the individual Flat Allottees, there cannot be any financial debt due and payable by the Respondent to the individual Flat Allottees.

As such, the individual Flat Allottees cannot be termed as "Financial Creditors", by whom or on whose behalf the present application is purportedly filed and on this short point the present Application is not maintainable before this Tribunal.

ii. That the Applicant is trying to mislead this Tribunal by reading clause 10.1 (d) of the Flat Buyer's Agreement in isolation. Clause 10.1 (d) necessarily has to be read with the other clauses of the Flat Buyer's Agreement which includes clause

10.3 of the Fla