TaxTMI 
TaxTMI 
2017 (5) TMI 663
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....respect of Respondent Company. 2. In order to put the controversy in its proper perspective few material facts may first be noticed. The respondent company has been incorporated on 15.06.2006 with ROC UP & Uttaranchal, Kanpur. The petitioner booked a flat for a total consideration of Rs. 19,80,000/- in the project known as i-Homes which was to be completed by December 2013 and paid advance amount of Rs. 9,87,284/-. On 18.10.2011 a MOU was executed between the Petitioner and Respondent Company. It is also asserted that in accordance with the provisions of the MOU Respondent Company had undertaken to pay a sum of Rs. 9,050/- every month w.e.f. 15.11.2011 to the Petitioner as 'assured return' till the date of possession on the amount ....
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....be profitable to read relevant provisions of section 9 of the Code in order to understand the locus standi of the Petitioner to maintain this petition: Application for initiation of corporate insolvency resolution process by operational creditor. 9. (1) After the expiry of the period of ten days from the date of delivery of the notice or invoice demanding payment under sub-section (1) of section 8, if the operational creditor does not receive payment from the corporate debtor or notice of the dispute under sub-section (2) of section 8, the operational creditor may file an application before the Adjudicating Authority for initiating a corporate insolvency resolution process. (2)............... (3)............ (4)............ (5) The Ad....
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....e Code. According to section 9(1) a petition like the one in hand could be maintained only by an 'Operational Creditor' against the 'Corporate Debtor. The aforesaid expression has been defined in sections 5(20) & (21) which would also be attracted and applicable. Section 5(20) & (21) of the code read thus: "5. In this Port, unless the context otherwise requires,- (20) operational creditor means a person to whom an operational debt is owed and includes any person to whom such debt has been legally assigned or transferred (21) operational debt means a claim in respect of the provision of goods or services including employment or a debt in respect of the repayment of dues arising under any law for the time being in force and pay....
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.... as an 'Operational Creditor' within the meaning of section 5(20). The 'Operational Creditors' are those persons to whom the 'Corporate Debt' is owed and whose liability from the entity comes from a transaction on operations. The final report of the Committee in para 5.2.1 defines 'Operational Creditor' like the wholesale vendor of spare parts whose spark plugs are kept in inventory by Car Mechanic and who gets paid only after spark plugs are sold to acquire the status of 'Operational Creditor' so and so forth. The Petitioner in the present case has neither supplied any goods nor has rendered any service to acquire the status of an 'Operational Creditor'. 10. We are further of the view that g....
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....that he is a person to whom an 'Operational Debt' is owned or it is legally assigned/transferred as is patent from a bare perusal of Section 5(20) of IBC. The expression 'Operational Debt' has been defined by Section 5(21) of IBC and it must fulfil following substantive elements namely: (a) Debt arising out of provisions of goods; or (b) services; or (c) out of employment. It also covers dues arising under any law for the time being in force and payable to the Central or State Government or local authority. It is doubtful whether it would include all debts other than financial Debt' because we do not find any such legislative intendment from the Part II of IBC which deals with Insolvency and Liquidation for Corporate....