TMI Blog2020 (10) TMI 261X X X X Extracts X X X X X X X X Extracts X X X X ..... e in that decision definition of decree was not discussed by them. Therefore, we are unable to accept the view taken by the co-ordinate bench of NCLT Allahabad that the compromise arrived between the parties treated as decree likewise the letter dated 25.01.2019 will also be treated as decree. Thus, the applicant is an allottee under Section 5(8)(f) of the IBC and same is challenged before the Hon'ble Apex Court in WP (Civil)-26/2020 in which Hon'ble Apex Court held that the status quo, as of today, with respect to the pending applications, shall be maintained in the meanwhile . List the case on 04.03.2020, awaiting order in case of Hon'ble Apex Court in WP (Civil)-26/2020. - IB-2090/ND/2019 - - - Dated:- 27-1-2020 - Abni Ranjan Kumar Sinha, Member (J) and Kapal Kumar Vohra, Member (T) For the Appellant : Piyush Singh, Adv., Prateek Vats, Aditya Parolia, Aditi Sinha For the Respondent : Sakshi Arora, Manav Sharma and Abdhesh Chaudhary ORDER Abni Ranjan Kumar Sinha, Member (J) An application bearing No. CA-771/2020 has been filed on behalf of the Corporate Debtor/respondent. We have heard the Ld. Counsel for applicant as well as Corpor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... behalf of the parties without going into the merit of the case, we would like to decide the issue whether in view of the matter pending before the Hon'ble Apex Court in WP (Civil)-26/2020 in which Hon'ble Apex Court held that the status quo, as of today, with respect to the pending applications, shall be maintained in the meanwhile , this adjudicating authority can proceed further on the contention of the application that he does not come under Section 5(8)(f) explanation rather he comes under Section 5(8) alone. Before considering the submissions made on behalf of the parties we would like to refer the page 25 of the application in which he mentioned that It is further submitted that upon promulgation of the Insolvency Bankruptcy (Second Amendment) Act, 2018, explanation to Section 5(8)(f) has been added to the IBC, 2016 so as to include any amount raise from an allottee under a real estate project within the purview of financial debt. The said explanation to Section 5(8)(f) clearly states that amount raised in real estate projects from allottees shall be deemed to be an amount having the commercial effect of a borrowing. It is further stated that this position of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst the consideration for the time value of money, and includes clause a to i of Section 5(8) of the IBC, that has been discussed by the Hon'ble Apex Court in the case of Pioneer Urban Land Infrastructure Limited and Anr. Vs. Union of India Ors. Writ Petition (Civil) No. 43 of 2019 , which is also referred at page No. 25 of the application, which shows that applicant placed reliance upon the decision that is the reason he quoted that decisions in the application. The Hon'ble Apex Court in that decision held that:- 61. The definition of financial debt in Section 5(8) then goes on to state that a debt must be disbursed against the consideration for time value of money. Disbursement is defined in Black's Law Dictionary (10th ed.) to mean: 1. The act of paying out money, commonly from a fund or in settlement of a debt or account payable. 2. The money so paid; an amount of money given for a particular purpose. In the present context, it is clear that the expression disburse would refer to the payment of instalments by the allottee to the real estate developer for the particular purpose of funding the real estate project in which the allottee is to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... commercial, -adj. 1. of or engaged in commerce. 2. sponsored or paid for by an advertiser: commercial television. 3. having profit as the main aim: commercial music. 4. (of chemicals, etc.) unrefined and produced in bulk for use in industry. 5. a commercially sponsored advertisement on radio or television. In view of the aforesaid decision upon which the petitioner placed reliance, when we shall consider the case in hand then we find that the claim of the petitioner is that he entered into the agreement with the developer to buy commercial unit in project namely Paras Sqaure which was developed by the Corporate Debtor and accordingly, he paid the installment. Further the case of the applicant is that thereafter in view of letter dated 25.01.2019 the Corporate Debtor agreed to refund the amount paid by the Financial Creditor and on the basis of that present application is filed for the defaulted amount. Therefore, we are of the considered view that the defaulted amount, which Financial Creditor wanted to get back from the Corporate Debtor, was the amount deposited as an installment under the Real Estate Project namely Paras Square . Therefore, we are unable to accep ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
