TMI Blog2018 (3) TMI 1266X X X X Extracts X X X X X X X X Extracts X X X X ..... 16-2-2018 - MS. INA MALHOTRA AND MR. S. K. MOHAPATRA, JJ. For The Financial Creditor : Mr. Biswajit Das, Advocate, Mr. Tarun Khanna, Advocate And Mr. Pawan Dubey For The Corporate Debtor : Mr. Praveen Mahajan, Advocate Ms. Nivedita Jain, Adovcate ORDER S.K. Mohapatra, Member 1. Mr. Pawan Dubey and Mrs. Pushpa Dubey have jointly filed the present application under Section 7 of the Insolvency and Bankruptcy Code, 2016 (for brevity the Code ) read with rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (for brevity the Rules ) with a prayer for initiation of Corporate Insolvency Resolution Process in respect of respondent company M/s. J.B.K. Developers Private Limited claimed to be the corporate debtor. 2. The Respondent J.B.K Developers Private Limited, against whom initiation of Corporate Insolvency Resolution Process has been prayed for, is a company incorporated on 23.03.2003 under the Companies Act, 1956 and has its registered office at 99 Patparganj, Delhi-110091. Since the registered office of the respondent company is in Delhi, this Tribunal having territorial jurisdiction over the place is the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that thereafter the applicants served cancellation letter dated 09.08.2017 and by the said letter, the applicants called upon the respondent company to pay the outstanding principal sum of ₹ 25, 77,565/- (Rupees Twenty Five lakhs Seventy Seven thousand Five Hundred Sixty Five only) along with interest @ 18% per annum for delay period as per the agreement, within 7 days from the receipt of the said cancellation letter. It is submitted that cancellation letter was duly served on the corporate debtor on 09.08.2017 over the email and on 11.08.2017 through the speed post. But the corporate debtor neither responded to the said letter nor paid the refund amount with interest. Copies of the letter, postal receipt and proof of service have been placed on record. 7. It is submitted that the applicants are entitled to the principal sum of ₹ 25,77,565/- (Rupees Twenty Five lakhs Seventy Seven thousand Five Hundred Sixty Five only) along with interest @ 18% thereon for the delayed period. Copies of the acknowledgement receipts issued by the corporate debtor towards payment of ₹ 25,77,565/- (Rupees Twenty Five lakhs Seventy Seven thousand Five Hundred Sixty Five only) have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is contended that the present application is liable to be dismissed on the basis of principle of res judicata. In this regard it is pertinent to note that the subject matter of the present case is different which pertains to shop No. F4, whereas the earlier application was in respect of Flat No. 1002. Besides it is seen that the earlier application was moved under Section 9 of the Code, whereas the present application is under Section 7 of the Code, which is clearly a distinguishable and different case having dissimilar cause of action. Therefore, there is no doubt that the principle of res judicata is not applicable to the present case. 13. Another objection taken by the respondent is that as consumer cases between the parties are admittedly pending in a court of law, a clear dispute exists and consequently the provisions of IBC shall not be applicable. Ld. Counsel for respondent has also pointed out that the applicants have claimed interest differently in the present application and that in the complaints filed before the consumer commission. In this regard it is to be seen that the present case has been filed under Section 7 and not under Section 9 of the Code so as to attrac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cy resolution process by three categories of persons namely, (a) Financial creditor (b) Operational creditor, and (c) Corporate debtor itself. 19. The procedure in relation to the Initiation of Corporate Insolvency Resolution Process by the Financial Creditor is delineated under Section 7 of the Code, wherein only Financial Creditor / Financial Creditors can file an application. As per Section 7(1) of the Code an application could be maintained by a Financial Creditor either by itself or jointly with other Financial Creditors. Section 7 of the Code thus mandates that only the applicant Financial Creditor has to prove the default. In other words even if there is a clear default the application under Section 7 of the Code is not maintainable in case the applicant is not a financial creditor. Therefore, in order to maintain the present application filed under Section 7 of the Code for initiation of Corporate Insolvency Resolution Process in respect of respondent corporate debtor, the present applicants have to satisfy that they come within the definition of Financial Creditor . 20. The expressions Financial Creditor and Financial debt have been defined in Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of money. 22. In the present case the applicants booked a commercial shop No. F-4 having a super area of 283 sq. ft in the Green Avenue project of the respondent and have paid a total sum of ₹ 25,77,565/- (Rupees Twenty Five lakhs Seventy Seven thousand Five Hundred Sixty Five only). The allotment letter dated 23.07.2013 containing terms and conditions of the said allotment provides vide clause 1(A) as follows: 1(A) The assured return will be given to the Allottee 14% till 6 years and 16% in seventh years after the whole payment. 23. There is thus no dispute that the amount was disbursed with assured return plan @ 14% per annum till 6 years and 16% in the seventh year. Therefore disbursement was clearly against the consideration for time value of money. Consequently on default of payment of any annual assured return the applicants could have moved as Financial Creditor claiming the principal sum along with unpaid assured return as Financial debt . However in the present case respondent has claimed that till date there is no default in making the payment since the assured return is paid annually by the respondent as per the terms in the allotment letter itse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within 10 days failing which all the terms of builder buyer agreement shall be applicable. In the present case admittedly the applicants did not apply for cancellation within 10 days. The cancellation was made on 09.08.2017 almost one year after the date of meeting i.e. 16.07.2016. Respondent has further referred to the e-mail dated 20.07.2016 sent after four days of the meeting, where applicants did not exercise the option to take refund rather intimated to continue with the investment in the shop. Accordingly, there is force in the contention of the respondent that terms of builder buyer agreement shall be applicable in the present claim. 27. The present claim made after cancellation of allotment will naturally face the resistance of contractual obligations like clause (i), which provides that in case of cancellation inter alia 20% of the price shall be forfeited. Moreover the rate of interest claimed is neither based on agreement nor has been admitted by the respondent. Therefore the present claim falls within the purview of contractual liability requiring investigation and not a simplicitor financial debt . It is pertinent to note here that Claims of home buyers and claims ..... X X X X Extracts X X X X X X X X Extracts X X X X
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