2017 (2) TMI 1223 - Tri - Companies Law

Petitions Dismissed for Lack of Creditor Qualification under IBC

The Tribunal dismissed the petitions as the petitioners did not qualify as either 'Financial Creditors' or 'Operational Creditors' under the IBC. The ... Insolvency and Bankruptcy Code 2016 - eligibility of petitioner - Held that:- The expression Debt' means a liability or obligation in respect of a claim which is due from any person and includes a financial debt and operational debt. However Part Il specifically deals with 'Insolvency resolution and Liquidation' and it has its own definition enumerated in Section 5 of IBC as is discussed in the preceding para. Therefore the definition as enumerated in section 5 of IBC are to apply the expressions used in sections 7 and 9 of IBC and therefore, the expression used in section 3 of IBC cannot be exclusively read to interpret various words used in section 5 of IBC. Therefore we find no merit in the aforesaid submission. Therefore the argument of the petitioner to treat this petition as the one under section 9 of IBC is also without substance and we reject the same. This petition fails and the same is dismissed. Keeping in view the tenderness of the provisions of IBC we refrain from burdening the petitioner with cost. Before parting we make it clear that any observations made in this order shall not be construed as an expression of opinion on the merit of the controversy as we have refrained from entertaining the application at the initial stage itself when the Respondents have not entered appearance and are not present before us. Therefore the right of the Applicants before any other forum shall not be prejudiced on account of dismissal of instant application. Issues Involved:1. Whether the petitioner qualifies as a 'Financial Creditor' under Section 7 of the Insolvency and Bankruptcy Code (IBC).2. Whether the petitioner qualifies as an 'Operational Creditor' under Section 9 of the IBC.Detailed Analysis:Issue 1: Qualification as a 'Financial Creditor' under Section 7 of the IBCThe petitions were directed against a construction company, AMR Infrastructure Limited, which failed to deliver possession of shops and pay the assured returns as agreed. The petitioner sought to be recognized as a 'Financial Creditor' under Section 7 of the IBC.The Tribunal noted that the matter was covered by a previous judgment (CP No. (ISB) - 03(PB)l2017) where a similar agreement with AMR Infrastructure Ltd. was examined. It was concluded that the petitioner could not be regarded as a 'Financial Creditor' and that the money owed did not constitute a 'Financial Debt' as defined under Sections 5(7) and 5(8) of the IBC.The Tribunal emphasized that for a debt to qualify as a 'Financial Debt,' it must be disbursed against the consideration for the time value of money. The agreement in question was a simple sale or purchase agreement of property, and the assured returns did not meet the substantive requirement of consideration for the time value of money. Thus, the petitioners did not qualify as 'Financial Creditors.'Issue 2: Qualification as an 'Operational Creditor' under Section 9 of the IBCThe petitioner alternatively sought to be recognized as an 'Operational Creditor' under Section 9 of the IBC. The Tribunal examined whether the petitioner met the definitions of 'Operational Creditor' and 'Operational Debt' under Sections 5(20) and 5(21) of the IBC.Section 5(20) defines an 'Operational Creditor' as a person to whom an operational debt is owed, and Section 5(21) defines 'Operational Debt' as a claim in respect of the provision of goods or services, including employment, or a debt in respect of repayment of dues arising under any law.The Tribunal found that the petitioners did not meet these criteria as the claims were not related to the provision of goods or services, employment, or repayment of dues under any law. Therefore, the petitioners could not be considered 'Operational Creditors.'Conclusion:The Tribunal dismissed the petitions, concluding that the petitioners did not qualify as either 'Financial Creditors' or 'Operational Creditors' under the IBC. The Tribunal refrained from imposing costs on the petitioner and clarified that the observations made should not prejudice the petitioner's rights before any other forum.