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2021 (4) TMI 353 - AT - Insolvency and BankruptcyMaintainability of petition - initiation of CIRP - Flat Buyer is a Financial Creditor or not - Whether ‘HBPL’ falls within the ambit of the definition of ‘Corporate Debtor’, as defined under Section 3(8) of the Code? - HELD THAT:- In the instant case ‘HBPL’ as a Principal has created ‘HCPL’ its marketing arm vide an Assignment Agreement dated 05.07.2013 and Marketing Agreement dated 06.07.2013 wherein ‘HCPL’ was authorized to enter into Agreements/arrangements on behalf of ‘HBPL’ and issue Allotment Letters/Builder Buyer Agreement and other related documents for and on behalf of ‘HBPL’. The definition of ‘agent’ and ‘principal’ in Section 182 of the Contract Act, 1872 is crystal clear - In this case, there is an express consent to the creation of ‘HCPL’ given by one party to another and it can be safely stated that there is an existence of an agent relationship. The principal in this case has placed the agent in a position (Marketing Agreement), which in the outside world is generally regarded as carrying authority to enter into transactions of the account in question. Agency is consensual not contractual. For creating a contract of agency, in view of Section 185 of the Contract Act, even passing of the consideration is not necessary. In the present case, all the Clauses of the Assignment Agreement and the Marketing Agreement entered into on 05.07.2013 and on 06.07.2013 is prior to the Apartment Buyer Agreement dated 14.02.2014. Whether there was any breach committed by ‘HBPL’ of the terms of the ‘ABA’. Clause-C of the ‘ABA’ stipulates that the developer shall deliver possession on or before expiry of 36 months from the date of execution of ‘ABA’? - HELD THAT:- This documentary evidence on record substantiates the plea of the Home Buyer that there was never any injunction for any substantial period of time, preventing ‘HBPL’ from continuing the construction activity of the Project. Therefore, the grounds raised by the Counsel for the Appellant with respect to ‘Force Majeure’, cannot be accepted. It is pertinent to mention that on a pointed query from the Bench it was admitted that the ‘said Project is still incomplete’ - there is a ‘breach’ of the terms of the ‘ABA’ specifically Clause-C giving rise to a ‘Claim’ as defined under Section 3(6)(b) of the Code. Explanation (i) to Section 5(8) of ‘IBC’ specifically provides that ‘in amounts raised from an Allottee under a Real Estate Project shall be deemed to be an amount having a commercial effect of borrowings’. Explanation (ii) further provides that the term ‘Allottee’ and ‘Real Estate Project’ used in ‘IBC’ shall have the meaning as provided under Clauses (d) and (zn) of Section 2 of Real Estate (Regulation and Development Act, 2016) - Under ‘RERA’ Section 2(k) defines promoter as ‘a person who constructs or causes to be constructed an independent building or a building consisting of an Apartments or converts existing building apart from into an Apartment for the purpose of selling all or some of the Apartments to other persons and includes as assignee’. ‘HBPL’ is the ‘Corporate Debtor’ and the second Respondent the ‘Financial Creditor’ and the amount involved is the ‘Financial Debt’ as defined under the Code - the asset of the ‘Corporate Debtor Company’ of that particular Project is to be maximized for balancing the Creditor such as ‘Allottees’, ‘Financial Institutions’ and ‘Operational Creditors’ of that particular Project. The Learned Adjudicating Authority has rightly observed that the Petition filed by the second Respondent against ‘HBPL’ is maintainable - Application disposed off.
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