TMI Blog2018 (4) TMI 1477X X X X Extracts X X X X X X X X Extracts X X X X ..... The Applicant : Rakesh Kr. Singh, Advocate For The Respondent : Prateek Yadav, Advocate ORDER S. K. Mohapatra, Member 1. Mr. Rajendra Kumar Saxena, claiming to be the financial creditor, has filed this 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 Earth Gracia Buildcon Private Limited, referred as the corporate debtor. 2. The Respondent M/s Earth Gracia Buildcon Private Limited, against whom initiation of Corporate Insolvency Resolution Process has been prayed for, is a private limited company incorporated on 28-08-2012 under the provisions of Companies Act, 1956 having its registered office at B-100, Second Floor, Nariana Industrial Area, Phase -1, Delhi -110028. Since the registered office of the respondent corporate debtor is in Delhi, this Tribunal having territorial jurisdiction over the place is the Adjudicating Authority in relation to the prayer for initiation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icant, the respondent company issued reminders for payments and even telephone calls were made by the respondent. Thereafter, a legal notice dated 11-06-2016 was received by the applicant on 27, June 2016, issued by the respondent company. It is stated that in the said legal notice the basic fact of amount deposited had been misrepresented as ₹ 13,04,058/-, whereas the correct figure is ₹ 13,08,858/-. Copy of legal notice dated 11-06-2016 sent by respondent has been placed on record. 8. It is contended that after exhausting all the efforts as the amount was not refunded and in light of the inordinate delay in completion of the Project, a statutory winding up notice was issued on 02-09-2016 wherein demand of ₹ 13,08,858/- with 24% interest was claimed by the applicant, which was duly received by the Respondent on 03-09-2016. Copy of the said legal notice along with proof of service and tracking record has been placed on record. 9. The respondent company has filed its reply, wherein it is mainly contended that in the present case there was no agreement between the parties for assured return or guaranteed return and respondent has never offered to the applicant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f forum shopping is not based on sound legal principle nor can sustain on the face of the overriding provisions of the Code. 14. The main contention of the respondent is that the applicant does not come within the definition of Financial Creditor and the claimed amount is not a financial debt as defined under the Code, and therefore the present application filed under Section 7 of the Code is not maintainable. 15. It is the precise case of the respondent that the contract in question is purely for sale and purchase of the immovable property and that the applicant itself has committed breach by not paying the entire sale consideration amount despite several reminders. It is contended that in the present case there was no agreement between the parties for assured return or guaranteed return and respondent has never offered to the applicant any committed return or monthly return. Accordingly it is argued that the applicant is not a financial creditor and no financial debt is owed to the applicant by the respondent company and therefore the present application is not maintainable. 16. On the contrary applicant in its rejoinder has contended that the amount paid to responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are reproduced below: 5. In this part, unless the context otherwise requires, - ....... (7) financial creditor means any person to whom a financial debt is owed and includes a person to whom such debt has been legally assigned or transferred to; (8) financial debt means a debt alongwith 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 dematerialised 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 non-recourse basis; (f) any amount raised under any other transaction, including any forward sale or purchase agreement, having the effect of a borrowing; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in question cannot be equated as a simple claim of principal sum/ investment plus assured return. It is pertinent to note here that Claims of home buyers and claims arising out of complex financial instruments preferred before IRP under the Regulations are treated as different category claims distinct and separate from claims of financial and operational creditors. 25. It is also pertinent to note here that the present case is clearly distinguishable from the case of Nikhil Mehta Sons v. AMR Infrastructure Ltd. passed in Company Appeal (AT) (Insolvency) No. 07 of 2017. In that case there was clear provision for payment of assured returns and there was default in making payment of the assured return. Whereas in the present case admittedly there was no provision for payment of assured return. Besides in the present claim there is no whisper of inclusion of any unpaid assured return amount. In the absence of any provision of assured return, it can be said that the investment was not made against the consideration for time value of money and therefore neither the present claim can be termed to be a financial debt nor does the applicant come within the meaning of financial cred ..... X X X X Extracts X X X X X X X X Extracts X X X X
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