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2022 (4) TMI 78 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - HELD THAT:- The Applicant has claimed the default on the part of the Respondent for an amount of ₹ 29 Lakhs. This is as a sequel to the booking of an office space by the Financial Creditor in a project launched by the Corporate Debtor. The Financial Creditor paid an amount of ₹ 20 Lakhs towards the said unit to the Corporate Debtor; however since the Corporate Debtor failed to give possession of the unit to the Financial Creditor, the Corporate Debtor and the Financial Creditor entered into a mutual agreement by which an amount of ₹ 41 Lakhs was to be paid by the Corporate Debtor to the Financial Creditor as buy back and the Financial Creditor would return the original agreement in respect of the allotment of the office space back to the Company. It is to be noted here that the mutual agreement was not by itself an ab initio standalone agreement but it was a consequence of the Corporate Debtor not giving possession of the unit for office space to the Financial Creditor which he had agreed to give and for which consideration had been paid by the Financial Creditor. Therefore this mutual agreement/settlement under which the Corporate Debtor has defaulted is to be considered as such and not as an ab initio standalone agreement. As per the IBC (Amendment) Act, 2020, for financial creditors who are allottees under a real estate project, an application for initiating corporate insolvency resolution process against the corporate debtor shall be filed jointly by not less than one hundred of such allottees under the same real estate project or not less than ten percent of the total number of such allottees under the same real estate project, whichever is less - the Petitioner having failed to modify the application to meet the mandatory threshold requirement, within the prescribed time period or even within the extended time period, should no longer be allowed to pursue the present application. It remains an undisputed fact that the origin of the claim by the Applicant was by the virtue of him being an allottee. The subsequent mutual agreement cannot be treated as a standalone agreement and must be read in light of the original Space Buyer Agreement. Moreover, the mutual agreement has no component of interest as claimed by the Applicant. Further, it appears that after the IBC (Amendment) Act, 2020, the Applicant has twisted his line of arguments and is now relying on the subsequent mutual agreement without making any modification to his Application under Section 7 of the Insolvency and Bankruptcy Code, 2016. Therefore, the Tribunal is of the view that the said application is not in consonance with the IBC (Amendment) Act, 2020. Application dismissed.
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