TMI Blog2023 (10) TMI 949X X X X Extracts X X X X X X X X Extracts X X X X ..... f drawing a resolution plan. Consequently, the reasoning of the Mumbai Bench of NCLT Mr. Natwar Agrawal(HUF) is correct in the opinion of this Court. The Resolution Professional s view appears to be that once an allottee seeks remedies under RERA, and opts for return of money in terms of the order made in her favour, it is not open for her to be treated in the class of home buyer. This Court is unpersuaded by the submission. It is only home buyers that can approach and seek remedies under RERA no others. In such circumstances, to treat a particular segment of that class differently for the purposes of another enactment, on the ground that one or some of them had elected to take back the deposits together with such interest as ordered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 23 by NCLAT, in C.A.(AT) No. 991/2022 (hereinafter referred to as NCLAT ) which ruled that as beneficiary of a decree by the Uttar Pradesh Real Estate Regulatory Authority (hereinafter referred to as UPRERA ), the order of the Resolution Professional (R.P.) proposing that they be treated differently from other home buyers allottees, does not call for interference. 2. The brief facts are that the appellants are home buyers, who had opted for allotment in a real estate project of the respondent company (hereinafter referred to as Bulland Buildtech Pvt. Ltd. or the respondent . Aggrieved by the delay in the completion of the project, the appellants approached the UPRERA which by its orders upheld this entitlement to refund amounts depo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew that decree would be categorized as either financial or operational debt depending on the nature of the underlying claim which stands crystallized through the arbitral or court the nature of the debt due under decree would 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. 3.3. At this juncture, this bench considers appropriate whether an allottee h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erson to whom a financial debt is owed and includes a person to whom such debt has been legally assigned or transferred to; (8) financial debt means a debt along with interest, if any, which is disbursed against the consideration for the time value of money and includes (a) money borrowed against the payment of interest; (b) any amount raised by acceptance under any acceptance credit facility or its de-materialised equivalent; (c) any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument; (d) the amount of any liability in respect of any lease or hire purchase contract which is deemed as a finance or capital lease under the Indian Accounting Stan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, including any forward sale or purchase agreement, having the commercial effect of a borrowing; [Explanation - For the purposes of this subclause,- (I) 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 (ii) 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);] 6. It is thus evident that with the introduction of the explanation home buyers and allottees of real estate projects were included in the class of financial creditors - because financial debt is owed to them. On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ensate the allottees in case of any loss cause to him due to defective title of the land, on which the project is being developed or has been developed, in the manner as provided under this Act, and the claim for compensation under this sub-section shall be not barred by limitation provided under any law for the time being in force. (3) If the promoter fails to discharge any other obligations imposed on him under this Act or the rules or regulations made thereunder or in accordance with the terms and conditions of the agreement for sale, he shall be liable to pay such compensation to the allottees, in the manner as provided under this Act. 8. The Resolution Professional s view appears to be that once an allottee seeks remedies under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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