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2023 (8) TMI 1362 - NATIONAL COMPANY LAW TRIBUNAL MUMBAIMaintainability of petition - Financial creditor or not - allottee holding a decree from RERA would fall under the class of Home Buyers within category of Financial Creditor or not - HELD THAT:- This bench is of the considered view that decree would be categorised as either financial or operational debt depending on the nature of the underlying claim which stands crystallised through the arbitral or court the nature of the debt due under decree would depend on the nature of transaction from which the decretal debt has arisen - In the present case the applicant had obtained a Decree from RERA in capacity of allottee in a Real Estate Project and allottee in Real Estate Project is covered under the definition of Financial Debt contained in under Explanation to Section 5(8)(f) of the Code. Accordingly, the applicant, being holder of a decree in capacity of allottee is a Financial Creditor. In the present case, it is not in dispute that the threshold prescribed under second proviso to section 7(1) of the Code is not met in the present case, the application could not have been maintainable had the applicant filed this application without obtaining decree under RERA. Accordingly, the applicant cannot be allowed to claim eligibility to file application u/s 7 in terms of section 4 of the Code, because if it is made permissible it would tantamount to circumventing the provisions of second proviso to section 7(1) of the Code. In other words, what is not permissible directly shall become permissible via RERA decree route. Accordingly, this bench feels that present petition is hit by bar under second proviso to section 7(1) of the Code. This bench is of the view that in such circumstances, that the present case deserves to be dismissed under Section 7 of the Insolvency and Bankruptcy Code, 2016 - Petition dismissed.
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