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2017 (8) TMI 1525 - AT - Insolvency and BankruptcyCorporate insolvency process - delay in giving possession of flat by builder - cancel the allotment and refund agreed by builder but not initiated - who can claim to be an 'Operational Creditor' - whether a person who has entered into agreement for purchase of a 'flat' or 'shop' or 'any immovable property' is Operational Creditor or not? - whether appellants are 'Operational Creditor' and are entitled to initiate Corporate Insolvency Resolution Process against Respondents - 'Corporate Debtor' under Section 8 and 9 of the 'I & B Code? - HELD THAT:- The letter of allotment is not an agreement to sell and the terms condition aforesaid is conditional as the question of default will arise, once 'Corporate Debtor' receives the notice of cancellation from the allottee(s) and if the amount is not paid. Apart from the fact that the appellants are merely an allottee of a flat and does not come within the meaning of 'Operational Creditor,' as held by the Learned Adjudicating Authority, there appears to be a variation in their claim amount, though the notice under Section 8 and 9 or application under Section 9 has not been filed. The appellants initially claimed that they are entitled for refund of total amount. deposited by them after one year, the flat having not completed within time along with 19% interest. But before the Tribunal the appellants claimed total amount along with 18% interest. On the other hand, as per the Allotment Letter at paragraph 3(b), the allottee is entitled to get refund of amount, subject to deduction of 15% of the total cost on receipt of allottees(s) application for cancellation. At paragraph 3(d) of the letter of allotment has further mentioned that if the amount paid by the allottee(s) is less than the amount deducted under (a) above, the allottee shall pay to the Company, deficient amount to the extent of 15% as mentioned therein. Thus we find there is a variation of claim amount i.e. the amount of debt alleged to have been defaulted by the respondent. While we hold that the appellants are not 'Operational Creditor', we also hold that there is confusion about the actual amount of default of debt and the date of notice for cancellation forwarded by appellant, the petition under Section 9 is fit to be rejected.
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