[Under Section 7 of the Insolvency and Bankruptcy Code, 2016 read with Rule 4 of the

Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016]

IN THE MATTER OF:

Mahendra Jasvantlal Parekh & Sunita Mahendra Parekh

C-1/5, Satyam Shopping Center,

M. G. Road, Ghatkopar-East

Mumbai – 400 077.

…..Financial Creditors/Applicants

Vs.

Nirgudkar Infrastructure Private Limited

[CIN: U45400MH2010PTC211142] 736 Ratan Jyoti, Parsi Colony Lane,

4 Dadar East,

Mumbai – 4000 14

.....Corporate Debtor/Respondent

Pronounced: 13.06.2024

CORAM:

HON’BLE SHRI K. R. SAJI KUMAR, MEMBER (JUDICIAL)

HON’BLE SHRI SANJIV DUTT, MEMBER (TECHNICAL)

Appearances: Hybrid

For the Applicant(s) : Adv. Simran Singh

For the Respondent(s) : Adv. Bhupesh Dhumatkar i/b

Adv. Ankita Phadke

ORDER [Per: Sanjiv Dutt, Member (Technical)]

1. BACKGROUND :

1.1 This is an Application bearing C.P.(IB) No.526/MB/2022 filed by Shri Mahendra Jasvantlal Parekh and Smt. Smita Mahendra Parekh (hereinafter referred to as the “Financial Creditors/Applicants”) on 08.04.2022 under Section 7 of Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as “the Code”) read with Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 for initiating Corporate Insolvency Resolution Process (hereinafter referred to as “CIRP”) in the case of Nirgudkar Infrastructure Private Limited (hereinafter referred to as the “Corporate Debtor”). Smt. Smita Mahendra Parekh, Financial Creditor has authorised her husband, Mr. Mahendra Jasvantlal Parekh through an Authority Letter dated 01.04.2022 to file the present Application on her behalf.

1.2 The Financial Creditors/Applicants and the Corporate Debtor entered into a Memorandum of Understanding (hereinafter referred to as “the MoU”) dated 12.09.2012 for the purpose of developing and selling property at Nirgudkar Niwas, Hindu Colony, Dadar (East), Mumbai. The Financial Creditors/Applicants paid advances of entire consideration of Rs.5,00,00,000/- towards the development work. On failure of the Corporate Debtor in complying with the terms of MoU and for recovery of principal amount along with interest, the Financial Creditors/Applicants issued a Demand Notice dated 01.06.2016 to the Corporate Debtor.

1.3 The total amount of alleged default by the Corporate Debtor is Rs.45,60,88,850/- as on 31.03.2022 including interest @ 24% p.a. amounting to Rs.40,60,88,850/-. As the Corporate Debtor neither constructed the property nor returned the amount owed to the Financial Creditors/Applicants, the latter have preferred this Application seeking initiation of CIRP in respect of the Corporate Debtor.

2. AVERMENTS OF FINANCIAL CREDITORS/APPLICANTS

2.1 The Corporate Debtor executed an MOU dated 12.09.2012 with the Financial Creditors/Applicants. The MOU was entered into for the purpose of developing a property named "Nirgudkar Niwas, Plot No. 72 (South) of Dadar- Matunga Estate, Hindu Colony, Lane No. 2. Dadar (East) Mumbai". It was agreed that the Corporate Debtor would construct residential flats admeasuring saleable area of 2858 sq. ft. consisting of two floors above 10^th floor of the said property.

2.2 It was further agreed that the Corporate Debtor shall commence the development work within one year from the date of execution of the MOU and complete the development within two years from the date of execution of the MOU. Upon completion of development work, the Corporate Debtor shall transfer the selling rights of the development work in favour of the Financial Creditors/Applicants who shall have exclusive rights to sell the development work.

2.3 The entire consideration of Rs.5,00,00,000/-(Five Crore Rupees) was paid by the Financial Creditors/Applicants in advance as full and final amount towards the development work. Further, the Corporate Debtor agreed to pay quarterly interest @ 24% per annum to the Financial Creditors/Applicants towards the principal amount of Rs.5 Crores.

2.4 However, the Corporate Debtor failed to complete its agreed obl