Home Case Index All Cases Insolvency and Bankruptcy Insolvency and Bankruptcy + Tri Insolvency and Bankruptcy - 2019 (11) TMI Tri This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2019 (11) TMI 1522 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - Financial Creditor or not - existence of debt and dispute or not - whether there is a debt which is disbursed against the consideration for the time value of money and including any amount raised under any other transaction, including any forward sale or purchase agreement, having the commercial effect of a borrowing? - HELD THAT:- In the present case, the MOU dated 10.04.2015 states that the first party (Victory Buildestates) and confirming party (Step Reality Pvt. Ltd.) are now desirous to transfer the complete project of affordable group housing with regard to the land and measuring 5.03125 acres situated in the revenue estate of Village Devlawas, Sector 27, Rewari by way of transfer of the complete management and control of the first party (Victory Buildestates) in favour of the second party (S-Tech) against fulfilment of the conditions mentioned therein including payment of total consideration amount of ₹ 29,800,4,480. The MOU provides for payment of ₹ 50.00 lacs as first instalment; second instalment of ₹ 2.50 crores, vide cheque No. 486626 dated 23.04.2015 drawn on Indian Overseas Bank, Delhi Branch; another instalment of ₹ 3.00 crores by 20.05.2015; and balance payment to be made within six months from the date of signing the agreement subject to the compliance of the aforesaid comments of the MOU. Therefore, the amounts of ₹ 50.00 lacs and ₹ 2.50 crores supra is not an amount "raised" under a real estate agreement. In the present case, the whole project of affordable group housing is to be transferred by Victory Buildestates to S-Tech. The amounts received are therefore, not in the nature of advance given by the home buyer to a real estate developer for "temporary use" i.e. for use in the construction project. The project is to be sold to S-Tech. The funds of ₹ 3.00 crores are not given by S-Tech to Victory Buildestates for any use by Victory Buildestates in the project of affordable group housing at Rewari. The MOU is in respect of a sale of a project of affordable group housing and would not have the "commercial effect" of a borrowing. In the present case, the alleged debt is not advanced by a promoter, Director or shareholder of the corporate debtor as a stakeholder. The purpose of the alleged debt is not for improving the financial health of the company and boosting its economic prospect. On the other hand the purpose is to purchase the project of affordable group housing at Rewari. S-Tech has not proved its contention that it is a financial creditor under the provisions of Section 5(7) and Section 5(8) of the Code - Petition dismissed.
|