TMI Blog2022 (4) TMI 78X X X X Extracts X X X X X X X X Extracts X X X X ..... the Corporate Debtor not giving possession of the unit for office space to the Financial Creditor which he had agreed to give and for which consideration had been paid by the Financial Creditor. Therefore this mutual agreement/settlement under which the Corporate Debtor has defaulted is to be considered as such and not as an ab initio standalone agreement. As per the IBC (Amendment) Act, 2020, for financial creditors who are allottees under a real estate project, an application for initiating corporate insolvency resolution process against the corporate debtor shall be filed jointly by not less than one hundred of such allottees under the same real estate project or not less than ten percent of the total number of such allottees under the same real estate project, whichever is less - the Petitioner having failed to modify the application to meet the mandatory threshold requirement, within the prescribed time period or even within the extended time period, should no longer be allowed to pursue the present application. It remains an undisputed fact that the origin of the claim by the Applicant was by the virtue of him being an allottee. The subsequent mutual agreement cannot b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... btor developed a banquet hall on the 1st Floor and earned huge money from the customers using it. iv. That when the Financial Creditor came to know about the said development on the said project, the Financial Creditor visited the office of the Corporate Debtor and asked about his possession on the said project. No positive response was received by the Financial Creditor. v. That various reminders and repeated calls were made by the Financial Creditor. Finally, the Corporate Debtor entered into mutual agreement with the Financial Creditor on 04.12.2018 on following terms and conditions:- Company agree to buy hack the said office for ₹ 41,00,000/- (Rupees Forty-One Lakh Only) and will pay an amount as the details given below. After receiving the full and final amount of ₹ 41,00,000/- (Rupees Forty-One Lakh Only). I have no right in the said office and will return the original agreement to the company . vi. At the time of the agreement, 22 post-dated negotiable instruments in the form of cheques were given to the Financial Creditor. That cheques amounting to ₹ 12,00,000/- (Rupees Twelve Lakh Only) got honoured whereas the cheque dated 04.07.2019 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... akh Only), cheques for an amount of INR 21,00,000/- (Rupees Twenty One Lakh Only) were drawn from the bank account of Mr. DB Jain in its individual capacity and not on behalf of the Respondent Company. That, the Petitioner now with the malafide intention has filed the instant Insolvency Application in a camouflaged manner to confuse and confound the Tribunal and is seeking amount from Mr. D.B. Jain against whom no Insolvency Application can be made maintainable under the provisions of IBC, 2016. viii. The petitioner does not possess the characteristics of a financial creditor within the ambit of Section 5(7) of the IBC, 2016 read with other relevant provisions of IBC, 2016. ix. Exorbitant claims are being sought in the instant insolvency application, the amount purportedly claimed as debt is absolutely and ex-facie incorrect and exorbitant claims are being sought without any basis, and the Petition is liable to be dismissed on this ground alone. x. That, the Respondent Company is willing as well as capable to repay the outstanding amount, if any, and the capability of the Company to repay is evident through the facts enumerated hereunder in the present reply, and sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s only) as per the mutual agreement executed between the parties, however, the Financial Creditor is only claiming the amount deposited by it at the time of allotment of the Unit along with interest @18% p.a. Thus, it is completely false and incorrect to state that exorbitant amount is being sought. 4. The Applicant has filed written submissions in which he has reiterated certain points raised by him in the petition and they are as follows: i. That as per the Section 3(10) of the I B Code, 2016, the petitioner passes the test within the definition of the Creditor, as the Corporate Debtor in terms of the agreement dated 04.12.2018 agreed to discharge the payment of ₹ 41,00,000/- (Rupees Forty One Lakh Only) to the Petitioner. ii. That the Petitioner also passes the test of the Financial Creditor as the Financial Debt was owned and due towards the petitioner by the Corporate Debtor in terms of the mutual agreement dated 04.12.2018. iii. That the present petition was filed on 06.09.2019. The amendment in Section 7 of I B Code, 2016 had been introduced through Insolvency and Bankruptcy Code, (Amendment Act 2020) (No. 1 of 2020) dated 13.03.2020, w.e.f. 28.12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This aforementioned view was also upheld by the Hon'ble National Company Law Appellate Tribunal, New Delhi in order/judgment dated 25th November, 2020 Amrit Kumar Agrawal v. Tempo Appliances Private Limited numbered as Company Appeal (AT) (Insolvency) No. 1005 of 2020 at Paragraph 2-5 at pages 2-5 of the judgment. iv. That the Financial Creditor has failed to comply with the mandatory threshold under the proviso to Section 7 of the Code. v. That the Hon'ble Supreme Court in the matter of Manish Kumar v. Union of India (UOI) and Others reported at upheld the mandatory threshold pertaining to allottees, as entitled in the Code. The Petitioner having failed to modify the application to meet the mandatory threshold requirement, within the prescribed time period or even within the extended time period, should no longer be allowed to pursue the present application. 6. We have gone through the documents filed by both the parties and heard the arguments made by the Counsels. The Applicant has claimed the default on the part of the Respondent for an amount of ₹ 29 Lakhs. This is as a sequel to the booking of an office space by the Financial Creditor in a pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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