TMI Blog2021 (8) TMI 1155X X X X Extracts X X X X X X X X Extracts X X X X ..... the word allottee was not clear prior to pronouncement of the Judgment by the Hon'ble Supreme Court in the MANISH KUMAR VERSUS UNION OF INDIA AND ANOTHER [ 2021 (1) TMI 802 - SUPREME COURT] - A bare perusal of Section 5(8) of IBC, 2016 shows that there is no if and but regarding the meaning of financial debt so far as the expression allottee is concerned. By an amendment w.e.f. 06.06.2018, which is prior to the submission of claim by the applicant before the RP, it was crystal clear that any amount raised from an allottee under a real estate project shall be deemed to be an amount having the commercial effect of a borrowing and the expressions, allottee and real estate project shall have the meanings respectively assigned to them in clauses (d) and (zn) of section 2 of the Real Estate (Regulation and Development) Act, 2016. Merit of the amendment proposed - HELD THAT:- Since the applicant has already submitted his claim in Form B and so far as the reference to the MoU is concerned, that reference was already made in para 5 of the application IA/1442/2020 filed by the applicant, it cannot be said that these facts were not within the knowledge of the applicant at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered was raised and the same was accepted by the Corporate Debtor vide Letter dated 20.10.2017. Further, an invoice dated 05.04.2018 under the Retainership agreement was also raised for the agreed amount of ₹ 60,00,000/-. iv. That it is further contended that the Applicant also extended a Loan Facility to the Corporate Debtor through account bearing no. 003105500870 dated 30.03.2015 to the extent of ₹ 75,00,000/-, out of which ₹ 5,62,500/- was repaid on 21.05.2015. However, the Corporate Debtor failed to make payment towards the remaining amount of ₹ 69,37,000/- against the said Loan Facility as well as ₹ 4,20,00,000/- towards the Retainership services. v. That it is further contended that the Corporate Debtor entered into a Memorandum of Understanding dated 19.04.2018 ( MOU ) with the Applicant and allotted 20 units to the Applicant in lieu of the outstanding debt along with immediate possession and accordingly executed Apartment Buyer Agreements (the ABAs ) for each such unit. Therefore, in terms of the ABAs read with the MOU dated 19.04.2018, the Applicant became an Allottee within the meaning of section 5(8)(f) of the Insolvency and Ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... honorable Supreme Court Of India in its judgment dated 19th January 2021 titled as Manish Kumar Ors. V. Union Of India Ors., WP (C) 26/2020 has held with clarity as to who can be an allottee within the terms and for the purposes of IB Code. It has been categorically held that any person in favor of whom a document of allotment including and an ABA would be an allottee under IB Code. B. That after paragraph 5 of CA No. 1442/ND/2020, the following paragraph shall be inserted: 5A. That since the RP has not considered the claims of the applicant nor has pointed out the discrepancy in Form, it is submitted that as per law the claims of the applicant should be verified as an allottee for which a Form CA is annexed herewith as Annexure - A. That interest of justice would warrant that the claims of the applicant shall be verified in the revised Form CA. C. That Prayer Clause (a) of CA No. 1442/ND/2020 be substituted with the following: (a.) Allow the present application and direct the resolution professional to verify, entertain and accept the claims of the applicant as an allottee; and viii. That it is further contended that since the Apartment Buyer Agre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccept the claims based on the same. 4. The facts mentioned in the written submissions filed by the respondent in brief are as follows:- i. That the respondent submits that the present application is not maintainable because the relief sought by the applicant cannot be granted as Mr. Paramjit Gandhi, erstwhile management of the Corporate Debtor had contravened the provisions of Section 14. ii. That it is further contended, Mr. Amit Kumar Malik filed an application for initiation of CIRP of the Kindle Developers Private Limited (hereinafter referred to as 'Corporate Debtor') under Section 7 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as 'the Code, 2016) which was allowed by this Hon'ble Tribunal vide order dated 09.03.2018. The copy of the application for initiation of CIRP was duly served and the same has been recorded in the order. iii. That it is further contended that the applicant had filed a claim before the resolution professional on 09.07.2019 in Form B as an Operational Creditor, which is beyond the stipulated time of 90 days as per Regulation 12(2) of the Insolvency Resolution Regulations, 2016. The applicant was su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at follows in clauses (a) to (d). Importantly, under sub-section (4), this order of moratorium does not continue indefinitely, but has effect only from the date of the order declaring moratorium till the completion of the corporate insolvency resolution process which is time bound, either culminating in the order of the Adjudicating Authority approving a resolution plan or in liquidation. ix. That based on the above-mentioned facts, the application filed by the applicant should be dismissed in limine. The Applicant and Mr. Paramjit Gandhi are liable to be punished as per Section 74 of the Code, 2016 for contravening the order of Moratorium. 5. We have heard the Ld. Counsel for the applicant as well as Resolution Professional and perused the averments made in the application as well as written submissions filed by the respective parties. 6. Ld. Counsel for the applicant has raised all the facts and laws referred to in the written submissions. Similarly, the RP has also raised all the facts and laws referred to in the written submissions. Therefore, it is needless to repeat the argument of the parties. 7. On the basis of the averments made in the application, written ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns) and the scanned copy of same is reproduced below:- 14. A bare perusal of the order shows that, though the petition was admitted on 09.03.2018 but the order could not be uploaded till 22.06.2018. Therefore, the subsequent steps could not be taken up. 15. It is also seen, by this order, the IRP Mr. Yogesh Tyagi, who was appointed earlier, was changed and discharged. 16. At this juncture, we would like to refer to the arguments advanced by Ld. Counsel on behalf of the applicant, who in para (iii) of his written submissions contended that proviso to Section 5(12) was omitted w.e.f. 28.12.2019 and prior to that, where the IRP is not appointed in the order admitting an application under Section 7, 9 or Section 10 of IBC, the insolvency commencement date shall be the date on which such IRP is appointed by the Adjudicating Authority. 17. In terms of this proviso, the applicant has placed reliance upon the order dated 30.07.2018. 18. We have already referred to the order dated 30.07.2018 and on the basis of that, we are of the considered view that it is not the case that on 09.03.2018, while admitting the application, the IRP was not appointed by the Bench, rather ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (g)................... (h)...................... (i)........................ 24. A bare perusal of the aforesaid provision shows that there is no if and but regarding the meaning of financial debt so far as the expression allottee is concerned. By an amendment w.e.f. 06.06.2018, which is prior to the submission of claim by the applicant before the RP, it was crystal clear that any amount raised from an allottee under a real estate project shall be deemed to be an amount having the commercial effect of a borrowing and the expressions, allottee and real estate project shall have the meanings respectively assigned to them in clauses (d) and (zn) of section 2 of the Real Estate (Regulation and Development) Act, 2016 (16 of 2016). 25. Hence, in view of this provision, we are unable to accept the contention of the applicant that definition of allottee was not clear prior to the judgment of the Hon'ble Supreme Court in the Manish Kumar Case. 26. Hence, we find, no force in the contention raised by the applicant that the amendment is sought only in the light of the decision of Hon'ble Supreme Court in the Manish Kumar Case (supra). 27. Now, coming t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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