TMI Blog2017 (8) TMI 1525X X X X Extracts X X X X X X X X Extracts X X X X ..... notice under Section 8 and 9 or application under Section 9 has not been filed. The appellants initially claimed that they are entitled for refund of total amount. deposited by them after one year, the flat having not completed within time along with 19% interest. But before the Tribunal the appellants claimed total amount along with 18% interest. On the other hand, as per the Allotment Letter at paragraph 3(b), the allottee is entitled to get refund of amount, subject to deduction of 15% of the total cost on receipt of allottees(s) application for cancellation. At paragraph 3(d) of the letter of allotment has further mentioned that if the amount paid by the allottee(s) is less than the amount deducted under (a) above, the allottee shall pay to the Company, deficient amount to the extent of 15% as mentioned therein. Thus we find there is a variation of claim amount i.e. the amount of debt alleged to have been defaulted by the respondent. While we hold that the appellants are not 'Operational Creditor', we also hold that there is confusion about the actual amount of default of debt and the date of notice for cancellation forwarded by appellant, the petition under Section 9 is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent to pay outstanding principal sum with interest @ 18% per annum, rejected the claim by impugned order dated 31st March 2017 in C.P.No. (IB)-19(PB)/2017. 5. The Tribunal held that the appellants do not come within the meaning of 'Operational Creditor'. Reliance has been placed on a decision of Learned Adjudicating Authority rendered in another case of Col. Vinod Awasthy Vs. A.M.R. Infrastructure Ltd. 6. The question arises for consideration in this appeal is whether appellants are 'Operational Creditor' and are entitled to initiate Corporate Insolvency Resolution Process against Respondents - 'Corporate Debtor' under Section 8 and 9 of the 'I B Code? 7. Learned Counsel for the appellants' highlighted the introduction of 'I B Code' 2016 by repealing Presidency Towns Insolvency Act, 1909 Provincial Insolvency Act 1920. According to him it was introduced by amending 11 special statutes including Section 272(1)(b) of Companies Act, 2013 with clear objectives for such collective, changes in 13 existing laws. It was submitted that 'I B Code' is a complete code for insolvency resolution, liquidation and bankruptcy pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... how that in order to maintain an application as an 'Operational Creditor' the Petitioner has to satisfy the requirements of section 5(20) and (21) of the Code. According to section 9(1) a petition like the one in hand could be maintained only by an 'Operational Creditor' against the 'Corporate Debtor. The aforesaid expression has been defined in section 5(20) (21) which would also be attracted and applicable. Section 5(20) (21) of the code read thus: 5. In this Part, unless the context otherwise requires,_ (20) operational creditor means a person to whom an operational debt is owed and includes any person to whom such debt has been legally assigned or transferred (21) operational debt means a claim in respect of the provision of goods or services including employment or a debt in respect of the repayment of dues arising under any law for the time being in force and payable to the Central Government, any State Government or any local authority; 8. It is evident from the perusal of the aforesaid definition of 'Operational Debt' that it is a claim in respect of provision of goods or services including dues on account of employment or, a d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e land. Therefore we are not inclined to admit the petition. 11. Like wise we have decided the case of Sajive Kanwar v. AMR Infrastructure CP. No. (ISB)-03(PB)/201 7 on 16.22017 which has also discussed the possibility of treating a person like the petitioner as an Operational Creditor 11. Similar question as to who can claim to be an 'Operational Creditor', and whether a person who has entered into agreement for purchase of a 'flat' or 'shop' or 'any immovable property' is Operational Creditor or not fell for consideration before this Appellate Tribunal. This has been held in the case of Nikhil Mehta Vs. A.M.R. Infrastructure Ltd. Taking into consideration the terms and condition of agreement/ sale deed, the Appellate Tribunal held the appellant of the said case, as Financial Creditor . 12. The appellants have filed a Letter of Allotment dated 1st November 2012 wherein certain terms and conditions have been mentioned. As paragraph 3(b) of the Letter of Allotment, it is mentioned that the allottee(s) shall be entitled to refund of money paid by him subject to deduction of 15% of the total cost of the unit only after the expiry of a period ..... X X X X Extracts X X X X X X X X Extracts X X X X
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