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2021 (4) TMI 1069 - Tri - Insolvency and BankruptcyMaintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - financial creditors or not - Homebuyers - Tripartite agreement - fulfilling the threshold limit or not - existence of debt and dispute or not - HELD THAT:- As per the Insolvency and Bankruptcy Code, (Amendment) Ordinance, 2019 dated 28.12.2019 Financial Creditors who are homebuyers of Real Estate Project can file a Petition U/s 7 of the Code, 2016, jointly only if there are 100 of such homebuyers or if they are 10% of total homebuyers, whichever is less. However, in the instant Petition, only one Homebuyer has filed the case which neither amounts to 10% of the total class of Financial Creditors nor 100 Financial Creditors. The Petitioner, therefore, fails at the very threshold. It is also seen that in the instant case, as per the Construction agreement, the default has occurred on 01.07.2013. The CP is filed on 17.09.2019, i.e. almost 6 years after the cause of action and default. In the instant case the Petitioner is before this Tribunal mainly to execute its decree and hence would not be eligible to file a Petition for execution of the decree received from the NCRC. We may add that if home buyers who obtain decrees from other fora also, such as from RERA, are permitted to file petitions under the IBC, that would defeat the purpose of the above referred amendment in section 7 of the Code laying down the threshold of 100 or 10% home buyers, whichever is less - Hence, as per the decision in the case of Sushil Ansal [2020 (8) TMI 396 - NATIONAL COMPANY LAW APPEALLATE TRIBUNAL, NEW DELHI] while remedies are available to a home buyer elsewhere, as also under IBC (with the aforesaid threshold), once he receives a decree, the same cannot be brought for execution by invoking Section 7 of the IBC. We are also in agreement with the Respondent that since there is a Tripartite Agreement with the ICICI Bank Ltd. and the loan amount was disbursed by ICICI Bank Ltd., not only the cancellation can be done by the ICICI Bank but also the repayment can be done only to the ICICI Bank which would be the Financial Creditor in the instant case and not the Petitioner, as the Petitioner has handed over this right to this Bank as per the tripartite agreement. The ICICI Bank has not been made a party in the CP and the Petition suffers from non-joinder. Petition dismissed.
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