Home Case Index All Cases Insolvency and Bankruptcy Insolvency and Bankruptcy + Tri Insolvency and Bankruptcy - 2021 (8) TMI Tri This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2021 (8) TMI 1155 - NATIONAL COMPANY LAW TRIBUNAL , NEW DELHI BENCHSeeking direction to RP to verify, entertain and accept the claim of the applicant - seeking permission to bring on record the averments that on the basis of the MoU - HELD THAT:- It is not the case that on 09.03.2018, while admitting the application, the IRP was not appointed by the Bench, rather on 30.07.2018, the earlier IRP Mr. Yogesh Tyagi was discharged and a new IRP Mr. Anurag Nirbhay was appointed. Therefore, we find, no force in the contention raised on behalf of applicant that since the IRP was not appointed on the date of admission of the application, therefore, the insolvency commencement date will shift to the date, when the IRP was appointed. Mere mentioning of an incorrect insolvency commencement date by the IRP/RP in Form A i.e. Public Announcement cannot change the position of law as referred to in Section 5(12) of IBC, 2016 - the contention of the applicant is not liable to be accepted. Seeking amendment in the earlier application - HELD THAT:- The only ground for seeking amendment is that the definition of the word "allottee" was not clear prior to pronouncement of the Judgment by the Hon'ble Supreme Court in the MANISH KUMAR VERSUS UNION OF INDIA AND ANOTHER [2021 (1) TMI 802 - SUPREME COURT] - A bare perusal of Section 5(8) of IBC, 2016 shows that there is no "if and but" regarding the meaning of "financial debt" so far as the expression allottee is concerned. By an amendment w.e.f. 06.06.2018, which is prior to the submission of claim by the applicant before the RP, it was crystal clear that any amount raised from an allottee under a real estate project shall be deemed to be an amount having the commercial effect of a borrowing and the expressions, "allottee" and "real estate project" shall have the meanings respectively assigned to them in clauses (d) and (zn) of section 2 of the Real Estate (Regulation and Development) Act, 2016. Merit of the amendment proposed - HELD THAT:- Since the applicant has already submitted his claim in Form B and so far as the reference to the MoU is concerned, that reference was already made in para 5 of the application IA/1442/2020 filed by the applicant, it cannot be said that these facts were not within the knowledge of the applicant at the time of filing of the earlier application - we are unable to accept the prayer of the applicant to permit him to make necessary amendment in the IA/1442/2020. Application dismissed.
|