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2023 (9) TMI 240 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , CHENNAIInitiation of CIRP - Threshold limit of default for admission of application - inclusion of interest for arriving at a claim - Financial debt or not - interest for the delay in registering the Sale Deed for the Mortgaged Plots - sale agreements do not provide for any interest - HELD THAT:- This Tribunal is of the considered view that the 1st Respondent is a ‘Financial Creditor’ and the amount paid by the Allottee is a ‘Financial Debt’ as defined under Section 5(8) of the Code and held by the Hon’ble Apex Court in the matter of Pioneer Urban Land and Infrastructure Limited and Ors. Vs. Union of India (UOI) and Ors. [2019 (8) TMI 532 - SUPREME COURT] where it was held that The Amendment Act to the Code does not infringe Articles 14, 19(1)(g) read with Article 19(6), or 300-A of the Constitution of India. Further, interpreting the Explanation added to Section 5(8)(f) of the Code, the Court further held that allottees/homebuyers were included in the main provision, i.e. Section 5(8)(f) with effect from the inception of the Code. The advances given by Property buyers to real estate developer will be considered as a ‘borrowing’ and such amounts raised from allottees falls within the scope of Section 5(8)(f) of the Code - Contention of the Learned Senior Counsel that the allottee is a speculative investor is unsustainable keeping in view that the ‘interest’ payable as per Clause 3 of the Agreement of Sale is ‘conditional’ to not obtaining the approval of HMDA. Whether the interest was rightly added to the 1st Respondent to the Claim amount to fall within the threshold amount of Rs. 1,00,00,000/-? - HELD THAT:- The amount mentioned in CMA 296/2021 cannot be equated to the Claim amount in the Section 7 Petition as the prayer in the Civil Suit was for specific performance, whereas, the amount claimed in the instant Petition is for the amounts due and payable to the 1st Respondent, as the amounts fall within the definition of ‘Financial Debt’, as defined under Section 5 (8) (f) of the Code. It is an admitted fact that the Final HMDA Approval was obtained only in January 2019 and till April 2019, neither were the plots registered nor the amounts refunded - the quantum of interest comes into play as per the clauses of the Agreement of Sale entered into between the Parties. Therefore, this Tribunal do not see any merit in the argument of the Learned Counsel for the Appellant that interest should not be added and that the amount does not meet the threshold limit. This Tribunal is conscious of the fact that ‘Liquidation’ proceedings have been initiated against the Corporate Debtor. Further, this ‘Tribunal’ does not find any substantial grounds to challenge to the admission of the Section 7 Petition of the Code. Appeal dismissed.
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