TMI Blog2022 (12) TMI 352X X X X Extracts X X X X X X X X Extracts X X X X ..... the LoI which is clear from Clause 7 of the LoI. There can be no quarrel to the preposition laid down by the Hon ble Supreme Court in Orator Marketing Pvt. Ltd. [ 2021 (8) TMI 314 - SUPREME COURT] . The use of the word if any clearly makes that it is not essential for all financial debt to be with interest. However, the essential condition which is required to be fulfilled for a debt to be a financial debt is disbursement for time value of money which has to be fulfilled for all transactions referred to in clauses (a) to (f) in sub-section (8) of Section 5 of the Code. The amount advance of Rs.1.2 Crore cannot be held to be financial debt and no error has been committed by the Adjudicating Authority in rejecting the Section 7 App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at Suite No. 227, Second Floor, Square One, Saket, New Delhi 110017. 2. Intending Lessee Spicejet Limited having its office at 319, Udyog Vihar, Phase-IV, Guragaon- 122016 3. Super Area PLOT NO. 249 G, Phase 4 Udyog Vihar, Gurgaon. The demised premises is the entire building comprising 3 basements + Ground + 3 Floors. 4. Rental per month (Fully furnished) LUMSUM Value of INR 48 lacs per month including INR 8 lac towards maintenance charges. 5. Condition of hanover of premises The demised premises shall be off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. The Appellant, after the LoI, paid an amount of Rs.1.2 Crore to the Respondent. No lease could be executed between the parties in pursuance of the LoI. The Appellant issued Section 8 Notice to the Respondent and filed an Application under Section 9 of the IBC which Application was considered and rejected by the Adjudicating Authority on 21.05.2019. Against which order, Company Appeal (AT) (Ins.) No. 746 of 2019 was filed by the Appellant in this Tribunal which Company Appeal was dismissed as withdrawn by order dated 18.02.2020. Subsequent to the said order, I.A. No. 1135 of 2020 was filed by the Appellant seeking liberty to approach the Adjudicating Authority in terms of the ingredients of Section 7 of the Code as Financ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Adjudicating Authority' when the necessary 'Application seeking appropriate relief is filed by the concerned party and further that said 'Authority' shall determine the said 'Application' on merits, of course, after providing due opportunities to the contesting parties to air their the views, by adhering to the 'Principles of Natural Justice . With the aforesaid observations/ the Interlocutory Application stands disposed off. No costs. 5. Subsequent to the order of this Tribunal, an Application was filed by the Appellant under Section 7 which has been rejected by the impugned order holding that the amount of Rs. 1.2 Crore, on the foundation for which the Application has been filed is not a financial deb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mount as per Clause of the LOI and Respondent has incurred expenditure for arranging premises for the Appellant. 8. We have considered the submissions of the Counsel for the Appellant and perused the record. 9. Section 5(8)(f) of the Code which deals with the financial debt reads as follows:- 5. Definitions.- .(8) financial debt means a debt alongwith interest, if any, which is disbursed against the consideration for the time value of money and includes- xxx xxx xxx (f) any amount raised under any other transaction, including any forward sale or purchase agreement, having the commercial effect of a borrowing . 10. When we look into the Letter of Intent which has been relied by the Counsel for the Appellant, C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h has to be fulfilled for all transactions referred to in clauses (a) to (f) in sub-section (8) of Section 5 of the Code. 13. Learned Counsel for the Appellant has next relied on the judgment of Pioneer Urban Land and Infrastructure Limited (supra). In paragraph 75 of which judgment, following has been laid down:- 75. And now to the precise language of Section 5(8)(f). First and foremost, the sub-clause does appear to be a residuary provision which is catch all in nature. This is clear from the words any amount and any other transaction which means that amounts that are raised under transactions not covered by any of the other clauses, would amount to a financial debt if they had the commercial effect of a borrowing. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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