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2021 (6) TMI 125 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - Homebuyers of Real Estate Project - threshold limit not reached - existence of debt and dispute or not - HELD THAT:- As per the Insolvency and Bankruptcy Code, (Amendment) Ordinance, 2019 dated 28.12.2019 the financial creditors who are homebuyers of Real Estate Project can file a petition under section 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 2 Homebuyers have filed the petition which neither amounts to 10% of the total class of financial creditors or 100 Financial Creditors and therefore this petition cannot be entertained. In the instant case, the Petitioner has already obtained order from the relevant forum under the RERA Act and the same can be executed before relevant forum. A case under the Code, 2016 is not made out as the petition is clearly an attempt to substitute the recovery mechanism and amounts to forum shopping. Further, since the Petitioner does not meet the minimum threshold of 10% of Financial Creditors of the same class, the petition fails and deserves to be dismissed - the Petitioner has made out a case that it is before this Tribunal basically to seek execution of a decree passed by the Karnataka, RERA, Bengaluru. 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 Karnataka, RERA - if home buyers who obtain decrees from other fora also 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. The decision of the NCLT, Allahabad Bench in AJAY WALIA VERSUS M/S. SUNWORLD RESIDENCY PRIVATE LIMITED [2018 (7) TMI 2175 - NATIONAL COMPANY LAW TRIBUNAL, ALLAHABAD], supports the view that where the Allottee/Applicant has subrogated its rights in favour of a Bank by way of Tripartite Agreement, the liability to make payment to the Allottee cannot be saddled upon the Corporate Debtor and the Applicant cannot be treated as a Financial Creditor. Petition dismissed.
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