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TMI Blog2025 (3) TMI 129X X X X Extracts X X X X X X X X Extracts X X X X ..... ious unitholders booked their respective units on consideration, Builder Buyers Agreement (BBA) was executed and subsequently Conveyance Deed were also executed in favour of the different unit holders in the year 2015 onwards. iii. Under the Conveyance Deed, unitholders were also required to pay a sum of Rs.100 sq. ft. super area of their respective unit to the respondent towards the Interest Free Maintenance Security (IFMS). iv. The IFMS was collected towards maintenance of the common area and other common facilities and common area amenities. v. Completion Certificate was also received on 03.06.2016. vi. With regard to maintenance, complaints were filed by the unitholders as well as the appellant. vii. Appellant claim to have taken over the maintenance of the project on 08.09.2022. viii. On 06.10.2023, appellant sent a demand notice of Rs.2.95 Crore to the respondent, the project proponent and thereafter in April 2024 filed an application under Section 7, claiming default of the financial debt. ix. Adjudicating Authority passed an order on 08.05.2024, directing the appellant to file an affidavit indicating therein that amount in question is a financial debt defined ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the corporate debtor to the appellant. Appellant has placed reliance on Section 5(8)(f) which is as follows: "5. In this Part, unless the context otherwise requires,- (8) "financial debt" means a debt alongwith interest, if any, which is disbursed against the consideration for the time value of money and includes- ... (f) any amount raised under any other transaction, including any forward sale or purchase agreement, having the commercial effect of a borrowing; [Explanation. -For the purposes of this sub-clause,- (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);]" 7. Copy of one of the Conveyance Deed executed between the corporate debtor and the allottee dated 09.12.2015 has been brought on record as (Annexure A - 3). The corporate debtor has been referred as a vendor and the allottee as the vendee and by virtue of the Conveyance Deed, the ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dors staircase and other common facilities and amenities lifts escalators, etc. Clause 27 indicates that the amount maintenance charges shall be payable by the vendee to the vendor or nominated maintenance agency. The amount which is paid by the allottee towards IFMS security is the amount which is paid towards obtaining services and the amount is payable to the vendors/nominated maintenance agencies. The services thus are to be provided by vendor or maintenance agencies. For being a financial debt within meaning of Section 5(8), the amount needs to be disbursed against the consideration of time value of money and includes thus disbursement for time value of money is a condition precedent for falling any transaction within a definition of financial debt. In all transactions from sub- Clauses (a) to (f) requirement of disbursement for time value of money is must, which has already settled by the Hon'ble Supreme Court in 'Pioneer Urban Land and Infrastructure Limited & Anr.' Vs. 'Union of India & Ors.' reported in (2019) 8 SCC 416. 10. When we look into the nature of transaction entered between the corporate debtor and the allottees towards for payment of IFMS, there is no disbursal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eting (P) Ltd. v. Samtex Desinz (P) Ltd. (2023) 3 SCC 753, it has been clearly held that financial debt also includes an interest free loan." 11. This Tribunal held that security deposit was never disbursed or deposited against consideration of time value of money. In paragraph 18, following was held: "18. We find that the Adjudicating Authority has returned the finding that the Appellant did not fall in the category of a "financial creditor" nor the alleged transaction of Security Deposit fell within the ambit of "financial debt" in terms of the statutory provisions enshrined in Section 5(7) and 5(8) of the IBC. The above findings of the Adjudicating Authority have been predicated on the terms of Lease Deed entered between the Appellant and the Corporate Debtor. At this stage we may proceed to examine to determine the real nature of the underlying transaction of Security Deposit in the background of Lease Deed in order to determine whether it qualifies as a financial debt or not for the purposes of the IBC. When we look at the Lease Deed, we notice that the amount of Security Deposit under Clause 3.4 was equivalent to 4 months of lease rent and this sum was to be retained by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be the supplier or the receiver of such goods or services as has been held by the Hon'ble Supreme Court in M/s Consolidated Construction Consortium Ltd. Vs M/s Hitro Energy Solutions Pvt. Ltd. in Civil Appeal No. 2839 of 2020. Hence the payment of Security Deposit as advance for use of the Leased premises is clearly included in the "provision of services" and therefore falls within the purview of operational debt. We are therefore of the considered opinion that impugned order in not treating the Appellant as an Operational Creditor suffers from legal infirmity and the same cannot be supported." 13. When we look into the transaction which fell for consideration in the present case, it is clear that IFMS, maintenance security was towards providing services by the vendor/maintenance agencies and the amount was paid by the appellant for obtaining services regarding maintenance and the amount could not be held to be a financial debt. 14. Appellant has also placed reliance on Section 6(6) of Haryana Apartment Ownership Act 1983. Section 6 deals with common areas and facilities, which is as follows: "6. Common areas and facilities.- (1) Each apartment owner shall be entitled t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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