TMI Blog2018 (1) TMI 1247X X X X Extracts X X X X X X X X Extracts X X X X ..... 8-12-2017 - MR. R. VARADHARAJAN, J. For The Petitioner : Mayank Goel and Monamshel Maring , Advs. For The Respondent : Ms. Varsha Banerjee, Adv. ORDER DPL Builders Pvt. Ltd. is the Corporate Debtor in the above Petition and Ms. Anubhuti Aggarwal claiming herself to be a Financial Creditor has filed this Petition under Section 7 of Insolvency Bankruptcy Code, 2016 (IBC, 2016) seeking to set in motion Corporate Insolvency Resolution Process (CIRP) as envisaged under IBC, 2016 as well as Attendant Rules/Regulations framed thereunder against the Corporate Debtor. The claim giving rise to the above Petition from the facts narrated in the Application/Petition are as follows:- That on 18.6.2015 the Financial Creditor had invested a sum of ₹ 25,00,000/- vide cheque No. 048631 drawn on Punjab National Bank with the Corporate Debtor in relation to the development of project PDL Flora Heritage at 16B, Sector-l, Greater Noida (West). It was assured by the Corporate Debtor of repayment and that as a collateral security flat No.B-1, 904 to the extent of 1292 sq.ft. was also given. An unconditional guarantee was also given for the buy back of the said flat at a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the matter was taken up for final disposal by this Tribunal on 21.11.2017. 3. At the time of oral submissions, Ld. Counsel for the Petitioner took this Tribunal through the mutual agreement annexed as Annexure-B dated 10.04.2017 and strenuously contended that taking into consideration the provisions of the said agreement, the Petitioner can be classified as a Financial Creditor and the debt which is claimed as due from the Corporate Debtor as a financial debt. In this connection, attention of this Tribunal was more particularly drawn to clause 4 of the said agreement. 4. In addition, attention was drawn to clause 6 of the agreement wherein repayment schedule in tabular form has also been given and to also clause 14 of the said agreement dated 10.4.2017. Based on the above clauses as already stated, it was vehemently contended by the Petitioner that the Corporate Debtor had recognized a sum of ₹ 25,00,000/- paid by the Petitioner as an investment and also contended that the Corporate Debtor had given unconditional guarantee to buy back the allotted flat at pre-settled and determined amount of ₹ 31,00,000/- and also to pay interest @ 24% per annum with effect from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner and Respondent is not a financial debt and hence the Petitioner cannot be categorized as a Financial Creditor and in the circumstances the Petition is not maintainable. It is also pointed out by Ld. Counsel for the Respondent that one of the essential conditions which is required to be satisfied for the maintainability of the Petition is that there should be default on the part of the Corporate Debtor giving rise to filing of the Petition by the Petitioner and in support of this, Ld. Counsel for Respondent draws attention of this Tribunal to clause 9 of the said agreement which reads as follows: The project is already sanctioned and the possession of the flats will be handed over to the Second Party within 24 months from the date of this Agreement. However, in case, the Flat/premises is not ready to be given possession of, then the second party shall be at liberty to encash the cheque No.792973 for ₹ 25.00 lacs, mentioned in clause 6 of this agreement. 6. In light of the above clause, it is contended by Ld. Counsel for the Corporate Debtor that the time period for handing over possession of the flat is available to the Corporate Debtor till April, 2019 and if a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d till such date for failure to buy back and in that event the Corporate Debtor will be bound to transfer the specified flat to the Petitioner. Essentially from the perusal of the agreement it is seen that it is more of an agreement in relation to a money transaction and monies being made available and the Corporate Debtor also agreeing to repay the money alongwith interest taking into consideration the time value for money as defined under Section 5(8) of IBC, 2016 defining the financial debt. As clearly seen from clause (7) of the Agreement only in the event of failure to buy back the Corporate Debtor is bound to transfer the specified flat to the Petitioner. In the circumstances the agreement cannot be considered as an agreement for the purchase of a flat or immovable property and is more proximate to the one dealt with by Hon ble NCLAT in the case of Nikhil Mehta Sons v. AMR Infrastructure Ltd. In CA(AT) (Insolvency) No 07 of 2017 dated 21.07.2017 and after elaborate consideration of the provisions of IBC,2016 in relation to Financial Creditor, financial debt and triggering the process of insolvency by way of Financial Creditor by virtue of Section 7 at paragraph 20, the foll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vable property. Thus taking into consideration the facts and circumstances of the case and the provisions of law as well and keeping in view the decision of the Hon ble NCLAT passed in Nikhil Mehta Sons case (supra), this Tribunal is of the considered view that the Petitioner herein is a Financial Creditor and a financial debt is owed by the Corporate Debtor as per the provisions of IBC, 2016, the Petition is to be admitted applying the ratio contained therein and the Insolvency process be initiated in relation to the Corporate Debtor in view of the default committed by the Corporate Debtor which is evident from the dishonour of cheques issued and accordingly the Petition stands admitted. Mr. Kanwal Chaudhary is appointed as the Interim Resolution Professional having his address at EA-413, Maya Enclave, New Delhi-110 064 to take over the affairs of the Corporate Debtor as envisaged under the provisions of IBC,2016 and who is duly bound to act in consonance with the provisions of IBC,2016 and other rules and regulations framed thereunder. 11. The moratorium as envisaged under the provisions of Section 14 as extracted hereunder shall follow in relation to the Corporate Debtor an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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