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2020 (1) TMI 1268 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Debt or not - existence of debt and dispute or not - HELD THAT:- Claim means a right to payment and Financial Debt means a debt along with interest, if any, which is disbursed against consideration for the time value of money and includes any amount having a commercial effect of borrowing. Thus, it has become clear that the Financial Debt refers to non- payment of money, which is due and payable and a default has occurred in paying the same. In connection with financial creditors falling in the category of home buyers, any amount raised from an allottee under a reat estate project shall be deemed to be an amount having the commercial effect of a borrowing. The legal position stated above gives rise to another question i.e., whether any amount has been raised from FC and its associates by the CD under a real estate project? As can be inferred from the factual position recorded in the preceding paragraphs, the answer to this question is no. Thus, the claim of the FC as recorded under Para 8 of PART-IV of its Application i.e., "by virtue of the decree passed in the civil suit on 10th of April 1996, and in consideration of services provided by the FC and its associates, 34, 000 sq. ft., of buildup residential area with proportionate super area in 48, Keventer, Sardar Patel Marg, New Delhi were admittedly sold to FC and its associates by the CD and the said transaction has the effect of raising an amount," is misconceived; because the decree passed in the civil suit on 10th of April 1996, admittedly is not for 'payment of money' - Further, in case the arguments of the FC i.e., the buildup residential area was to be given in lieu of services provided by the FC and its associates to the CD, then the application filed under Section 7 of the IBC 2016 is not maintainable, as this Authority cannot assume the jurisdiction of the executing court to direct the CD to deliver the possession of built-up total area of 39100 Sq. Ft. with proportionate super area to the Financial Creditor and its associates as claimed. Accordingly, the issued framed under Para 14 herein above, is decided against the FC and in favour of the CD. Thus, it is on record that the FC along with its associates has filed execution petition under No. 77/2008 before the District Court. The CD has filed an application in the said execution petition by raising an objection that execution proceedings are premature and prayed to keep the same in abeyance till the commencement of the construction - therefore, even execution petition cannot be pressed to get the decree dated, 10.04.1996 executed by FC and its associates against the CD, as the same is premature. In the present circumstances it is a fit case to relegate the parties to the civil court for seeking appropriate legal remedies available under law. However, they are already before the Civil Court for getting the decree dated, 10th of April 1996, executed against the CD and its associates - petition dismissed without costs.
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