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TMI Blog2017 (2) TMI 1223X X X X Extracts X X X X X X X X Extracts X X X X ..... etails given in para 6 of the petitions and they paid a total consideration of Rs. 53,71,452 in accordance with para 7 of CP 6 of 2017. The respondent company had undertaken obligations, inter alia, to pay a fix payment of Rs. 45,000 per month as its 'committed return' from June 2008 till the date of delivery of possession. It was also obliged to make further payment of Rs. 5000 per month with effect from February 2010 till the date of possession, if the possession was not delivered by January 2010. According to the petitioner the amount of Rs. 45 lacs was paid in the belief that possession of the shops would be delivered within the agreed period. The possession of the shops has not been delivered by January 2010 and the respondent company has also failed to make payment of assured return from April 2014 onwards. Thus, there has been delay of over 6 1/2 years in completion of the project and delay of 8 1/2 years since the date of receipt of investment from the petitioner. Despite reminder sent by the petitioner, respondents have failed to pay back the investment and the amount of assured return. Even legal notices issued have not evoked any response. The petitioner has file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been legally assigned or transferred to; (8) "financial debt" means a debt along with interest, if any, which is disbursed against the consideration for the time value of money and includes- (a) money borrowed against the payment of interest; (b) any amount raised by acceptance under any acceptance credit facility or its de-materialized equivalent; (c) any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument; (d) the amount of any liability in respect of any lease or hire purchase contract which is deemed as a finance or capital lease under the Indian Accounting Standards or such other accounting standards as may be prescribed; (e) receivables sold or discounted other than any receivables sold on nonrecourse basis; (f) any amount raised under any other transaction, including any forward sale or purchase agreement, having the commercial effect of a borrowing; (g) any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price and for calculating the value of any derivative transaction, only the market value of such transac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y assigned or transferred to. In order to understand the expression 'Financial Creditor,' the requirements of expression 'financial debt' have to be satisfied which is defined in Section 5 (8) of the IBC. The opening words of the definition clause would indicate that a financial debt is a debt along with interest which is disbursed against the consideration for the time value of money and it may include any of the events enumerated in sub-clause (a) to (i). Therefore the first essential requirement of financial debt has to be met viz. that the debt is disbursed against the consideration for the time value of money and which may include the events enumerated in various sub-clauses. A Financial Creditor is a person who has right to a financial debt. The key feature of financial transaction as postulated by Section 5 (8) is its consideration for time value of money. In other words, the legislature has included such financial transactions in the definition of 'Financial debt' which are usually for a sum of money received today to be paid for over a period of time in a single or series of payments in future. It may also be a sum of money invested today to be repa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction does not have consideration for the time value of money, which is a substantive ingredient to be satisfied for fulfilling requirements of the expression 'Financial Debt.' 13. Essentially in the case in hand 'Assured Returns' is associated with the delivery of possession of the aforementioned properties and has got nothing to do with the requirements of sub-section (8) of 5 of IBC. It is the consideration for the time value of money which is mercifully missing in the transaction in hand. The classical transaction which would cover the definition of financial debts is illustrated in sub-clause (a) of sub-section (8) of Section 5 i.e. the money borrowed against the payment of interest. Learned counsel of Applicants has not been able to show from any material on record or otherwise that it is a financial transaction in which a debt has been di9ursed against the consideration for the time value of money and he being the Financial Creditor is entitled to trigger the insolvency process against the Respondent in accordance with Section 7 of the IBC. 14. Even otherwise the present petition would not be maintainable as many winding up petitions have been filed befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9: 9. (1) After the expiry of the period of ten days from the date of delivery of the notice or invoice demanding payment under sub- section (1) of section 8, if the operational creditor does not receive payment from the corporate debtor or notice of the dispute under sub-section (2) of section 8, the operational creditor may file an application before the Adjudicating Authority for initiating a corporate insAyency resolution process. (2) The application under sub-section (1) shall be filed in such form and manner and accompanied with such fee as may be prescribed. (3) The operational creditor shall, along with the application furnish- (a) a copy of the invoice demanding payment or demand notice delivered by the operational creditor to the corporate debtor; (b) an affidavit to the effect that there is no notice given by the corporate debtor relating to a dispute of the unpaid operational debt; (c) a copy of the certificate from the financial institutions maintaining accounts of the operational creditor confirming that there is no payment of an unpaid operational debt by the corporate debtor; and (d) such other information as may be specified. (4) An operational cred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a cause of action to an 'Operational Creditor' to file an application before NCLT would arise if after 10 days notice given by him to the 'Operational Debtor', the Operational Creditor' does not receive any payment from such a debtor or a corporate debtor or in the alternative he does not receive a notice of dispute. He must also satisfy the Tribunal about demand notice issued to the Operational Debtor/Corporate Debtor and is also requires to fulfill all other requirements of Section 9(3) of IBC. 8. In order to fall within the four corners of 'Operational Creditor" as per Section 9 of the IBC it must be shown that he is a person to whom an Operational Debt' is owned or it is legally assigned/transferred as is patent from a bare perusal of Section 5 (20) of IBC. The expression Operational Debt' has been defined by Section 5 (21) of IBC and it must fulfill following substantive elements namely : (a) Debt arising out of provisions of goods; or (b) services; or (c) out of employment. It also covers dues arising under any law for the time being in force and payable to the Central or State Government or local authority. It is doubtful whether it would ..... X X X X Extracts X X X X X X X X Extracts X X X X
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