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2020 (10) TMI 737 - Tri - Insolvency and BankruptcyCIRP process - Orders/directions to treat the applicants as 'Financial Creditor' - Section 60(5) of the Insolvency and Bankruptcy Code, 2016 readwith Rule 11 of the NCLT Rules, 2016 - HELD THAT:- It is an admitted fact of the parties that the applicants had entered into an agreement with the Corporate Debtor on 17.05.2011 and on the basis of that agreement the developer will get 55 per cent whereas the owner's share was 45 per cent and as per the agreement, the land shall be under the possession and control of the applicants but thereafter a subsequent agreement was executed on 18.03.2013 and according to the supplementary agreement in terms of Clauses 8, 9 & 10, new terms and conditions were fixed and the terms and conditions - From the perusal, it appears that by subsequent agreement, both the Applicants are allotted 9 flats each and as per terms and conditions, a separate letter of allotment is issued and on the basis of that the applicants claimed themselves to be the Financial Creditors. Mere plain reading of the provisions shows that a Financial Creditor is a person to whom a financial debt is owned and includes a person to whom a debt is legally assigned or transferred. The applicants claimed themselves to be Financial Creditors because according to him a financial debt is owned by the Corporate Debtor. The plain reading of Section 5(8) shows that a financial debt means a debt along with interest which disbursed against the consideration of time value and money and includes any of the Clause (a to i) under Section 5(8) of IBC, 2016. Mere plain reading of the Clause 21 of the Supplementary Collaboration Agreement shows that both the applicants/owners and the developer/Corporate Debtor shall execute and register the sale deed and the other documents in respect of the flat, car parking etc. in favour of the intending purchaser therefore, when we shall read this Clause along with the definition of Promoter then we are of the considered view that the applicants are not the Financial Creditors rather they are the promoters along with developer hence, on the basis of allotment of flats in terms of the Supplementary Collaboration Agreement, in our view, the applicants cannot be treated as Financial Creditors and the allotment letter cannot come under the definition of financial debt - there are no force in the contention raised on behalf of the applicants that in view of the allotment letters issued in their favour regarding the allotment of 9 flats, they are entitled to claim before the RP as a Financial Creditor and they are also entitled to be included as a member of CoC as Financial Creditor. The applicants are not liable to be considered as a Financial Creditor - the prayer to declare them as Financial Creditors is hereby rejected. So far, the second contention of the applicants, that if they are not considered as Financial Creditor then the RP may be directed to handover the possession of the apartments of the land is concerned, in our opinion, since the applicants have entered into a Supplementary Collaboration Agreement with the developer who has developed the real estate project on the land of the applicants and against whom the CIRP has been initiated, therefore, they are also the promoter of the said project hence, they are not entitled to get the land back. Therefore, this prayer of the applicants is also rejected. Application dismissed.
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