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2021 (2) TMI 147 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - petitioner seeks to enforce the ‘sale agreement’ as an operational debt - existence of debt and dispute or not - present petition has been filed by a power of attorney holder on behalf of the petitioner - HELD THAT:- In Palogix Infrastructure Private Limited v ICICI Bank Limited, [2017 (10) TMI 913 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI] the Hon’ble NCLAT, after noting the judgment of the Hon’ble Supreme Court in Innoventive Industries Limited v ICICI Bank, [2017 (9) TMI 58 - SUPREME COURT] that the IBC was an Act to consolidate and amend the laws relating to reorganisation and insolvency resolution, and that it is settled law that a consolidating and amending act like the present Central enactment forms a code complete in itself, exhaustive of the matters dealt with therein, went on to hold that a power of attorney holder is not competent to file an application on behalf of a financial creditor or operational creditor or corporate applicant - Therefore, the present petition filed by a power of attorney holder on behalf of the petitioner is not maintainable. We have considered the underlying nature of the transaction between the parties. The petitioner had offered her flat, which she was entitled to in the premises in question on account of redevelopment of the existing building, to the respondent. The respondent had paid what has been called “earnest money” to the petitioner. The present petition is for the remainder of the purchase price of the flat, apparently on the strength of an MoU dated March 2017 (we are unable to ascertain the exact date of the MoU from the petition). Prima facie, an MoU is a sort of agreement which will lead up to a formal agreement in due course. It is generally considered to be non-binding and legally non-enforceable, though exceptions would exist particularly in cases where a binding understanding can be inferred from its various clauses. Section 5(21) of the IBC defines an operational debt as “a claim in respect of the provision of goods or services, or a debt in respect of the payment of dues arising under any law for the time being in force and payable to the Central Government, any State Government or any local authority.” In the present case, the underlying nature of the transaction is akin to that of a sale agreement. The present petition seeks to enforce the ‘sale agreement’ as an operational debt. There is no supply of goods or service from the respondent to the petitioner, as a result of which a debt could be said to have arisen. Rather, it is the petitioner who is required to supply the ‘good’ in the form of the new flat, to the respondent. Therefore, such a transaction is not covered within the meaning of section 5(21) of the IBC. This is more in the nature of specific performance of the transaction, which can, if necessary, be enforced in a civil court. This Adjudicating Authority cannot take upon itself the role of a civil court in enforcing specific performance of such contracts. Petition dismissed.
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