TMI Blog2023 (8) TMI 1362X X X X Extracts X X X X X X X X Extracts X X X X ..... depend on the nature of transaction from which the decretal debt has arisen - In the present case the applicant had obtained a Decree from RERA in capacity of allottee in a Real Estate Project and allottee in Real Estate Project is covered under the definition of Financial Debt contained in under Explanation to Section 5(8)(f) of the Code. Accordingly, the applicant, being holder of a decree in capacity of allottee is a Financial Creditor. In the present case, it is not in dispute that the threshold prescribed under second proviso to section 7(1) of the Code is not met in the present case, the application could not have been maintainable had the applicant filed this application without obtaining decree under RERA. Accordingly, the appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ealization of payments) due and payable to the Corporate Debtor. The date of default as Specified in Part IV of the application 02.02.2020 two months from the order dated 02.12.2019 passed by Hon ble RERA Tribunal . 2. The applicant had approached the Corporate Debtor for the purchase of 4 flats in B Wing, bearing flat nos. 1405, 1406, 1407 1408 (hereinafter referred to as 'flats ) on the 14th floor of your Project namely BOBE CHANDRALEKHA CHSL , CTS no. 1138, Borivali Mumbai Sub urban District. 4. Pursuant to deliberations and negotiations the applicant had agreed to purchase the said flat for a total consideration of Rs 282.72 Lacs. Accordingly, basis the assurances of the corporate debtor, the applicant had deposited a total ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r failed to comply with the order within the stipulated time of one month as directed by the MAHARERA. Therefor the applicant through its advocates vide notices dated 20.01.2022 and 09.05.2022 called upon the corporate debtor to repay amount of 2,50,00,000/- along with interest. 2.5. The Applicant/Financial Creditor states that after accommodating numerous assurances, the corporate debtor hopelessly defaulted in repayment and complying with the order dated 02/12/2019 therefore the Applicant/Financial Creditor issued a final demand notice dated 22/09/2022, calling upon the corporate debtor to repay the amounts however neither any response to the said demand notice was received nor the amounts was repaid by the Corporate Debtor. 2.6. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claim, which is essentially a crystallization of the claim through the process of adjudication, had also be classified as a financial debt under Insolvency and Bankruptcy Code, 2016. Consequently, the nature of the underlying claim of the creditor, would determine the categorisation of the amount payable under the final decree passed adjudication of the same claim. The liability arising out of an arbitral award or a court proceedings . 3.2. Accordingly, this bench is of the considered view that decree would be categorised as either financial or operational debt depending on the nature of the underlying claim which stands crystallised through the arbitral or court the nature of the debt due under decree would depend on the nature of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u/s 7 of the Code Provided that for the financial creditors, referred to in clauses (a) and (b) of subsection (6A) of section 21, an application for initiation corporate insolvency resolution process against the corporate debtor shall be filed jointly by not less than one hundred of such creditors in the same class or not less than ten per cent. of the total number of such creditors in the same class, whichever is less: 3.5. In the present case, it is not in dispute that the threshold prescribed under second proviso to section 7(1) of the Code is not met in the present case, the application could not have been maintainable had the applicant filed this application without obtaining decree under RERA. Accordingly, the applicant canno ..... X X X X Extracts X X X X X X X X Extracts X X X X
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