TMI Blog2018 (5) TMI 1331X X X X Extracts X X X X X X X X Extracts X X X X ..... t after the license and handing over possession, there cannot be any claim for payment towards assured return till 2018. Therefore neither the present claim can be termed to be a ‘financial debt’ nor does the applicants come within the meaning of ‘financial creditor’. Once the applicants do not come within the meaning of ‘financial creditor’, they become ineligible to file the application under Section 7 of the Code. This petition fails and the same stands dismissed as not maintainable. - Company Petition (IB) NO. 78(PB)/2018 - - - Dated:- 25-4-2018 - MR. M. M. Kumar And Mr. S. K. Mohapatra, JJ. For The Applicants : Mr. M. Swaminathan, Mr. Ashok Kumar Singh, Advocate For The Respondent : Mr. Aniket Bhattacharyya, Advocate And Mr. Vikas thukral, Authorised Representative ORDER S. K. Mohapatra, Member 1. Mr. Manoj Kumar Bahri and Mrs. Meera Kapoor, claiming to be the financial creditors, have jointly 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 prayer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... September, 2015 ₹ 208200 from October, 2015. A copy of allotment letter dated 24.02.2012 has been placed on record. 5. On 24.02.2012 an agreement to sub-lease was executed between the corporate debtor and applicants wherein and whereunder, the corporate debtor was authorized to sub-lease the unit to any third party. On the same day on 24.02.2012 a Memorandum of Understanding was also executed and as per clause 9 of the Memorandum of Understanding the corporate debtor assured that from 30.06.2013 and on payment of 90% of total lease premium by applicants a monthly return (Assured Return) of ₹ 190.49/- per sq. ft. per month of super area shall be payable to the applicants and on 100% payment by applicants it be enhanced to ₹ 200 per Sq. ft. per month. A copy of the agreement to Sub-Lease and the MoU dated 24.02.2012 have been placed on record. 6. It is contended that the balance sheets of respondent for the financial year ending 31.03.2016 refers applicants as investor and the respondent has deposited TDS in the accounts of applicants under Section 194(A) of the Income-tax Act, 1961 and therefore it is claimed that the respondent has been pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich they had failed to pay w.e.f. 01.01.2016 in consequence of which the respondent is entitled to forfeit the license fee in relation to the said unit under the agreement. 12. It is further stated in the reply that no default has been committed by the respondent as the respondent completed the construction of the premises within 2 years of the agreement to sub-lease excluding the force majeure period between 14.08.2013 to 28.08.2015. It has also been submitted that the respondent had paid interest for the period till 31.12.2015 vide cheque No. 179875 dated 16.11.2017, after the date of the notice. 13. It is the case of the respondent that the applicants have not approached the tribunal with clean hands and have filed the present application for arm-twisting the respondent. 14. It is submitted that even the respondent paid assured return from 16.10.2015 to 30.11.2015 but this was subject to the adjustment on account of the amounts wrongly paid during the Force Majeure Period. The applicants also had to pay CAM charges as per the agreement w.e.f. 01.01.2016. Additionally it is contended that even if it is presumed that the applicants had to receive money after 01.01.2016 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication. 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 . 22. The expressions Financial Creditor and Financial debt have been defined in Section 5(7) and 5(8) of the Code, which 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 de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a monthly return ( Assured Return ) of ₹ 190.49/- (Rupees One Hundred Ninety and paisa Forty Nine only) per square feet per month of the Super Area being purchased by the Allottee from the date of this MOU on the of the payment made by the Allottee, which shall stand enhanced to ₹ 200/- (Rupees Two Hundred only) per square feet per month applicable to the super area, from the date the entire consideration stands fully paid up by the Allottee till the time the premises, after having been constructed, has been licensed by the Developer, as provided hereinbelow and the obligation/liability of the Developers shall cease thereafter. The Developers would pay the Assured Return after deduction of Tax at Source and adjustments of any interest, service, tax, cess or any other levy which is due and payable by the Allottee to the Developer in respect of such arrangement of Assured Return. It is however clarified that if the allottee fails to pay any charges payable under this agreement, including the balance premium amount or any part of it, on the completion of premises, then the Allottee would not be entitled to receive the assured return amount from the date of such default a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in May 2016, Assured Return is not payable at least thereafter. In that view of the matter it is not clear as to how the claim in the application towards Assured Return has been made till January 2018. The applicant has failed to justify how after completion of the premises and possession given to the licensee, Assured Return still would be payable till date. Once the claim made in the application does not pertain to Assured Return , the present claim will not come within the purview of Financial Debt and consequently the applicants cannot be termed as Financial Creditor in respect of the present claim in question. 29. It is further relevant to note that respondent has alleged that the applicants have failed to pay ₹ 3,66,820/- towards the Common Area Maintenance (CAM) charges w.e.f 1.1.2016 as per Clauses 5.1, 7.3 and 7.5 of the Agreement to Sub-lease and Clauses 18 and 19 of the MOU. In addition there are allegations of various breach committed by the applicant. The present claim prima facia falls within the purview of contractual debt and raises complex interpretation of contractual agreements requiring investigation and not a simplicitor financial debt . T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... handed over to the licensee long since May 2016. Therefore, the present claim of assured return till 2018 much after the completion and possession of the licensee, prima facia is not tenable. Applicants simultaneously cannot take contractual advantage of both owner as well as investor. As per the agreed terms the liability of the developers shall cease after the premises has been licensed. The present claim made after possession of licensee will naturally face the resistance of contractual obligations. The claim/debt in question cannot be termed as a simplicitor claim of Assured Return so as to come within the scope of financial debt . As per the provisions of the agreement after the license and handing over possession, there cannot be any claim for payment towards assured return till 2018. 32. Therefore neither the present claim can be termed to be a financial debt nor does the applicants come within the meaning of financial creditor . Once the applicants do not come within the meaning of financial creditor , they become ineligible to file the application under Section 7 of the Code. 33. For the reasons stated above this petition fails and the same stands dismissed a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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