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2018 (5) TMI 1331 - Tri - Insolvency and BankruptcyCorporate insolvency process - financial debt existence - Held that:- The claim of assured return till 2018 prima facia is not payable being in violation of the agreement. The ‘Assured Return’ was only payable till completion and licensing of the premises. There is no denial of completion of the premises and licensing of the same. Even possession of the premises has been handed over to the licensee long since May 2016. Therefore, the present claim of assured return till 2018 much after the completion and possession of the licensee, prima facia is not tenable. Applicants simultaneously cannot take contractual advantage of both owner as well as investor. As per the agreed terms the liability of the developers shall cease after the premises has been licensed. The present claim made after possession of licensee will naturally face the resistance of contractual obligations. The claim/debt in question cannot be termed as a simplicitor claim of ‘Assured Return’ so as to come within the scope of ‘financial debt’. As per the provisions of the agreement after the license and handing over possession, there cannot be any claim for payment towards assured return till 2018. Therefore neither the present claim can be termed to be a ‘financial debt’ nor does the applicants come within the meaning of ‘financial creditor’. Once the applicants do not come within the meaning of ‘financial creditor’, they become ineligible to file the application under Section 7 of the Code. This petition fails and the same stands dismissed as not maintainable.
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