NATIONAL COMPANY LAW TRIBUNAL

CHANDIGARH BENCH (COURT-I)

CP (IB) 69/CHD/HRY/2022

IN THE MATTER OF:

Automax Constructions Limited

Through its representative Jitendra Bisht

Having its registered office at:

Flat No.3, Khasra No.301/2, Ground Floor

100 Feet Road, Village Ghitorni

South west Delhi 110030 … Applicant/Creditor

Versus

Spaze Towers Private Limited

Having its registered office at:

Tower C, SPAZEDGE Sector-47

Gurugram-Sohna Road Gurugram-122002 …Respondent

Order Delivered on: 25.04.2024

SECTION: Section 7 of IBC 2016

CORAM:

SH. HARNAM SINGH THAKUR, HON’BLE MEMBER (J)

SH. L. N. GUPTA, HON’BLE MEMBER (T)

PRESENT:

For the Applicant : Adv. Ujjal Banerjee

For the Respondent : Adv. Sumesh Dhawan

Judgement

PER: SH. HARNAM SINGH THAKUR M(J) & SH. L. N. GUPTA, M(T)

Automax Constructions Limited (for brevity, the “Applicant”) has filed the present application 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 with a prayer to initiate the Corporate Insolvency process against Spaze Towers Private Limited (for brevity, the “Respondent”).

2. The Respondent namely, Spaze Towers Private Limited is a Company incorporated on 27.01.2006 under the provisions of the Companies Act, 1956 with CIN U45201HR2006PTC096709 having its registered office at Tower C, SPAZEDGE Sector-47, Gurugram-Sohna Road, Gurugram-122002, which is within the jurisdiction of this Tribunal. The Authorized Share Capital of the Respondent Company is Rs.25,00,00,000/-, and the Paid-up Share Capital is Rs.19,80,00,000/- as per the Master Data annexed with the application.

3. It is averred by the Applicant that it is the owner of the land bearing Khasra Nos. 14/4/1 (1-10-0), 15/5/1(1-11-0), Khasra nos. 14/4/2(0-2-0), 14/5/1/2 (0-8-0), total measuring 3 Bigha 11 Biswas 0 Biswasnis Pukhta (2.219 acres) of land situated in revenue estate of Tikri Tehsil and District Gurgaon (hereinafter referred to as "the said Land"). It is further submitted that in 2010, the Applicant and the Respondent entered into a Collaboration Agreement on 15.10.2010 (hereinafter referred to as “Collaboration Agreement”). The Applicant obtained License No. 220/2007 under Section 3 of the Haryana Development and Regulation of Urban Area Rules 1976 for developing a Commercial colony. Thereafter, the Respondent approached the Applicant for development of a commercial complex in the name and style of Boulevard II (hereinafter referred to as “Project” the said Land. As per the terms of the “Collaboration Agreement”, it was mutually agreed between the Applicant and the Respondent that the Respondent will retain 35% of the super built-up constructed area as Hotel/Commercial, underneath open spaces, terraces, basement, car parking, spaces, lifts, utilities and other common spaces including revenue generating spaces etc. including proportionate rights in the land, and shall handover the remaining 65% of the super built-up constructed area, open spaces, terraces, basement, car parking, spaces, lifts, utilities and other common spaces including revenue generating spaces after the Project is complete to the Applicant.

4. The detailed particulars of the Financial Debt including the total amount of default and the date of default as claimed by the applicant in Part IV of the application reads thus:

5. As per Part IV of the application (ibid), the Applicant has claimed an outstanding “financial debt” of Rs. 52,94,87,700/- and relied on 11.11.2021 as the “date of default”. It is further submitted that on 03.11.2021, the Applicant sent a letter to the Respondent regarding the non-completion of the project and the pending works at the project Spaze Boulevard-II.

6. To buttress its plea, the Applicant has relied on the following documents:

(i) Copy of the Collaboration Agreement dated 15.10.2010;

(ii) Copy of Supplementary Agreement to Collaboration Agreement dated 15.10.2013;

(iii) Copy of Occupation Certificate dated 27.07.2020 obtained by