Home Case Index All Cases Insolvency and Bankruptcy Insolvency and Bankruptcy + Tri Insolvency and Bankruptcy - 2020 (3) TMI Tri This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2020 (3) TMI 159 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - existence of debt and dispute - Whether the Petitioner is a Financial Creditor of the Respondent? - HELD THAT:- Financial debt defined under section 5(8) of the Code means a debt along with interest disbursed against the consideration for the time value of money and inter alia includes any amount raised under any other transactions including any forward sale or purchase agreement, having the commercial effect of borrowing. Any amount raised for an allottee under a Real Estate Project shall be deemed to be an amount having the commercial effect of borrowing. The expression 'allottee' and 'Real Estate Project' shall be construed as under the Real Estate (Regulations and Development) Act 2016 - The term 'Real Estate Project' defined under section 2 (zn) of the said Act provides that it would mean the development of a building or a building consisting of apartments, or converting an existing building or a part thereof into apartments, or the development of land into plots or apartments, as the case maybe, for the purpose of selling all or some of the said apartments or plots or buildings, as the case maybe, and includes the common areas, the development works, all improvements and structures thereon and all easement, rights and appurtenances belonging thereto. In 2005, the Respondent had entered into an agreement with M/s Salarpuria Properties (Private) Limited for construction of residential apartments over its properties. It subsequently entered into an agreement on 15.03.2007, with the Petitioner for allotment of 10 flats/apartments in the developed project. Accordingly the development so carried out would come within the definition of Real Estate Project indicted above. The Petitioner would thus be an allottee in respect of 10 (ten) apartments the Respondent had agreed to sell. The amount raised for the forward sale would accordingly come within the definition of a financial debt provided under section 5 (8) (f) of the Code. It satisfies the requirement of being a financial creditor and that is what this Authority needs to consider - issue is answered in the affirmative. Whether the Petition is maintainable? - Whether the Respondent defaulted in payment of financial debt? - HELD THAT:- The Petitioner having not paid the full amount as agreed under the agreement, dated 15.03.2007, could not expect the Respondent to execute and deliver possession of all the flats agreed thereunder. In view of the non-payment of the agreed balance amount the Respondent under letter, dated 18.07.2018, recalled the allotment letter, dated 26.12.2017, and terminated the agreement, dated 15.03.2007. The Petitioner having not adhered to the terms of the agreement cannot claim that the Respondent owed a financial debt to it and squarely was in default in payment of the debt. In the instant case as already indicated no default of financial debt can be said to have occurred as far as the Respondent is concerned - issue is accordingly answered in the negative. In view of the foregoing findings the Company Petition at the instance of the Petitioner cannot be allowed and the same is liable to be rejected. The Petitioner is not entitled to any relief in this forum. Petition dismissed.
|