9911796707
TMI Blog2023 (10) TMI 1000X X X X Extracts X X X X X X X X Extracts X X X X ..... he order dated 08.08.2023 by which the application filed by the Appellant under Section 7 has been rejected. The Adjudicating Authority relying on the judgment of this Appellate Tribunal held that the decree-holder does not change its original character of being a Real Estate Allottee and this being a case of a single allotment, does not meet the threshold requirement as per second proviso to Section 7(1) of the I&B Code. 2. Learned counsel for the Appellant challenging the order of the Adjudicating Authority has placed reliance on judgment of this Appellate Tribunal in "2020 SCC OnLine NCLAT 680, Sushil Ansal vs. Ashok Tripathi & Ors." . He has relied on Para 19 of the judgment, which is to the following effect: "19. Sub-clause (f) of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issuance of a Recovery Certificate by the 'UP RERA' in terms of order dated 10th August, 2019, it cannot lie in their mouth that they are the allottees and the amounts raised from them as allottees under the Real Estate Project deemed to be having the commercial effect of a borrowing would clothe them with the capacity of being Financial Creditors'. Such argument being absurd and incompatible with their plea before the Adjudicating Authority and the events following filing of complaints before the 'UP RERA' and leading to passage of Recovery Certificate needs to be rejected outright. Respondent Nos. 1 and 2 neither asserted nor sought triggering of Corporate Insolvency Resolution Process in a purported capacity as allot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umstances, 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 by the competent authority, would be highly inequitable. As held in Natwar Agarwal (HUF) (Supra) by the Mumbai Bench of National Company Law Tribunal the underlying claim of an aggrieved party is crystallized in the form of a Court order or decree. That does not alter or disturb the status of the concerned party in the present case of allottees as financial creditors. Furthermore, Section 238 of the IBC contains a non obstante clause which gives overriding effect to its provisions. Consequently, its provisions acquire prim ..... X X X X Extracts X X X X X X X X Extracts X X X X
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