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2022 (2) TMI 19 - AT - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - default in payment on the basis of settlement agreement - default of Financial Debt or not - HELD THAT:- In the present case, where an unduly high rate of interest of 24% p.a. on the deposited amount has been assured by the Corporate Debtor, coupled with the fact that after one year of booking the flats the first party (the allottee) can cancel or rescind the agreement and take back refund along with assured interest, the depositor cannot be considered a person who is genuinely interested in purchasing of flats/apartments and can therefore get the status of financial creditor being an allottee in accordance with Explanation (i) of section 5(8) of IBC. The status of Financial Creditor cannot be provided to a person who, in the garb of an allottee comes in the project as a speculative investor and for no reason cancels the allotment, which is the case in the present appeal. Therefore, the benefit of section 5(8)(f) of IBC will not enure in her favour. In the Agreement dated 20th July 2016 that the Appellant is relying on, there are no specified repayment schedules or consequences in the event of default. The assurance mentioned by the Appellant, and also claimed in the Corporate Debtor”s letter dated 15.06.2019 are not in the nature of consequences in the event of default in payment of debt. It is also noted by us is that this letter dated 15.6.2019 was issued almost three years after the original Agreement dated 20.7.2016 was executed, and is certainly part of the agreement. Neither there is a date of default in the section 7 application, nor any repayment schedule has been outlined in the said agreement - the Appellant cannot claim the status and benefits as a financial creditor by virtue of being an allottee/homebuyer under explanation (i) to section 5 (8)(f) of the IBC. The Appellant, who is a speculative investor, cannot claim status and benefits as financial creditor under Explanation (i) of Section 5(8)(f) of the IBC, and is not interested in the financial well-being, growth and vitality of the Corporate Debtor, but is just interested in her investment and has come in the garb of an allottee. In such a situation, the Appellant is certainly not a financial creditor holding financial debt, which is in default of payment by the Corporate Debtor. Appeal dismissed.
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