9911796707
TMI Blog2023 (9) TMI 240X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. It is submitted by the Learned Senior Counsel for the Appellant / Suspended Director of the Corporate Debtor Company that the Company is engaged in the business of developing and promoting real estate layouts. It is stated that the Corporate Debtor Company had entered into three Agreement of Sale with the 1st Respondent on 27/08/2016 and on 29/09/2016 for purchase and development of 10 plots numbering Plot Nos. 23 to 28 and 30 to 33, at the rate of Rs. 7,500 per sq. yard and an advance of Rs. 1,36,00,000/- was paid by the 1st Respondent over a period of time from 26/08/2016 to 09/03/2017. The Learned Counsel submitted that HMDA Approval was procured on 27/03/2017 but unfortunately HMDA mortgaged Plot Nos. 24 to 29 in the lay out, which included the plots of the 1st Respondent. This mortgage is only as per the general guidelines of HMDA to mortgage 15.54 % of the plotted area to ensure smooth development of the layout. It is submitted that the 1st Respondent neither purchased the Plot nor sought for repayment and is hence, entitled only to a sum of Rs. 35,97,500/-. 3. It is further submitted by the Learned Counsel that the Financial Creditor is not a genuine homebuyer but is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent is a Financial Creditor and whether interest accrued can be added to the principal amount and claimed as 'Financial Debt' in this Section 7 Petition. 6. At the outset, this 'Tribunal' addresses to the 1st issue raised by the Learned Counsel that the 1st Respondent is not a Financial Creditor and in fact is a speculative investor. The Learned Counsel placed reliance on the Judgment of the Principal Bench, NCLAT, in the matter of 'Nidhi Rekhan Vs. Samyak Projects Pvt. Ltd.' (Supra) in which matter the homebuyer was held to be not a genuine allottee but an investor on the ground that the allottee had entered into an Agreement, with the developer, which terms entail a down payment and a balance amount with an assured rate of return at 24 % p.a., which is not the case in the instant matter and is therefore, distinguishable. In the Judgment of 'Ankit Goyal Vs. Sunitha Agarwal & Ors.' (Supra) the allottee was also 'assured' a return of 25 % p.a. Hence, the ratio of this Judgment is not applicable to the facts of the instant Case on hand. In the instant case, the assured interest was conditional to the failure of getting approval from HMDA which was to be obtained as per Clause 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here in the form of the information of provided by the real estate developer compulsorily under RERA. It is these fundamental differences between the real estate developer and the supplier of goods and services that the legislature has focused upon and included real estate developers as financial debtors." Para 41: "The object of dividing debts into two categories under the Code, namely, financial and operational debts, is broadly to sub-divide debts into those in which money is lent and those where debts are incurred on amount of goods being sold or services being rendered. We have no doubt that real estate developers fall squarely within the object of the Code as originally enacted insofar as they are financial debtors and not operational debtors, as has been pointed out hereinabove. So far as unequals being treated as equals is concerned, homebuyers/allottees can be assimilated with other individual financial creditors like debenture holders and fixed deposit holders, who have advanced certain amounts to the corporate debtor. For example, fixed deposit holders, though financial creditors, would be like real estate allottees in that they are unsecured creditors. Financial con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ees/homebuyers were included in the main provision, i.e. Section 5(8)(f) with effect from the inception of the Code. The advances given by Property buyers to real estate developer will be considered as a 'borrowing' and such amounts raised from allottees falls within the scope of Section 5(8)(f) of the Code. The Contention of the Learned Senior Counsel that the allottee is a speculative investor is unsustainable keeping in view that the 'interest' payable as per Clause 3 of the Agreement of Sale is 'conditional' to not obtaining the approval of HMDA. 8. Now, this Tribunal addresses to the issue as to whether the interest was rightly added to the 1st Respondent to the Claim amount to fall within the threshold amount of Rs. 1,00,00,000/-. 9. Clause 3 is to be read with Clauses 9 and 16 of the Agreement of Sale dated 29/09/2016 and Clauses 8 and 15 of the Agreement of Sale entered into on 27/08/2016 which stipulates as follows: Clause 3 : If the vendor fails to get HMDA Approval within three months of this agreement then vendor agrees to repay the amount paid by the vendee within 2 months with an interest of 24 % per annum (payable based on number of days from the date of executio ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
