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2020 (1) TMI 237 - Tri - Insolvency and BankruptcyMaintainability of application - Corporate debtor failed to make repayment of debt - allottees/home buyers - financial creditors or not - HELD THAT:- Reliance can be placed in the case of judgement of Hon'ble Supreme Court in the case of Pioneer Urban Land & Infrastructure Ltd. v. Union of India [ 2019 (8) TMI 532 - SUPREME COURT ] where it was held that allottees/home buyers are to be regarded as financial creditors in terms of Section 5(8)(f) of the Code. Hon'ble Supreme Court has further made it clear that the allottees/home buyers can avail the remedies available under the provisions of the Code. In the present case the petitioner had booked a flat on payment booking amount. The various dates of disbursement of the said disbursed amount including the details of flat have been furnished in the application. The Allotment Agreement dated 22.05.2016 executed with the petitioner has been placed on record. Petitioner has also placed on record copies of cheques and receipts given by the respondent; in support of the disbursement of the amount to the respondent corporate debtor - Since the amount has been raised from the petitioner/allottee under a real estate project, petitioner being allottee/home buyer is regarded as a financial creditor in terms of Section 5(8)(f) of the Code. Petitioner gave advance to the real estate developer and thereby financed the real estate project at hand. Money that is disbursed is no longer with the allottee, but is with the real estate developer who is legally obliged to give money's equivalent back to the allottee. Not only the debt has a commercial effect of borrowings and come within the scope of 'financial debt' but also the petitioner clearly comes within the definition of 'financial creditor'. It is reiterated that the Form-1 filed in the present case under Section 7 of the Code read with Rule 4 of the Rules, shows that the Form is complete in all respect and there is no infirmity in the same. It is further seen that no disciplinary proceeding is pending against the proposed IRP. Whether respondent corporate debtor has committed default in payment of the financial debt? - HELD THAT:- In the facts and as per available records, it appears that the respondent corporate debtor has committed default in repayment of the financial debt. The application under Section 7 is maintainable once the default is more than the threshold limit of one lakh. Once there is a debt and default and the application is complete the Adjudicating Authority is bound to admit the application preferred under Section 7 of the Code - the material on record reveals that there is no disciplinary proceeding pending against the proposed IRP. It is thus seen that all the requirements of Section 7(5)(a) of the Code stand fulfilled - in terms of Section 7(5)(a) of the Code, the present application is admitted. Application admitted - moratorium declared.
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