TaxTMI 
TaxTMI 
2018 (6) TMI 859
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....ion of expression 'financial creditors' nor the claimed amount could be regarded as 'financial debt'. 3. In appeal the aforesaid judgment dated 23rd January 2017 was set-aside by the Hon'ble NCLAT vide order dated 21-07-2017 in Company Appeal (AT) Insolvency No. 07/2017 holding that those who have commitment to pay 'assured return', interest, etc. were covered by the expression 'financial creditor'. The matter was remitted back with the direction to the adjudicating authority-NCLT to admit the application preferred by the appellants and pass appropriate order, if the application under Section 7 of the 'I & B Code' is otherwise complete and in case it is found to be not complete, the appellants were to be given seven days' time to complete the same as per proviso to Section 7 of the 'I & B Code'. 4. Subsequently both the parties through their respective counsels appeared before this Tribunal. On 20-12-2017 one last opportunity was granted to the Respondent for filing of reply within ten days and rejoinder, if any, by the applicants within five days thereafter. Vide order dated 12-01-2018 further two weeks' time was granted to the Respondent for filing of reply. Despite various opp....
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....onths. So the DEVELOPER hereby undertakes to make a consolidated payment of Rs. 99,600 (Rupees Ninety Nine Thousand Six Hundred only) less TDS as applicable every calendar month to the INVESTOR as a committed return w.e.f. January 2009 up to the date of handing over of possession to the INVESTOR." 7. Vide diary No. 787 dated 13.2.2018 Mr. Vikram Bajaj has been proposed to act as an Interim Resolution Professional. He has filed his written communication as per the requirement of Rule 9 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. He has declared that no disciplinary proceedings are pending against him in Insolvency and Bankruptcy Board of India or Indian Institute of Insolvency Professionals of ICAI. In addition, further necessary disclosure has been made by Mr. Vikram Bajaj as per the requirement of the IBBI Regulations. 8. The Corporate Debtor filed short reply to the instant application by asserting that the execution of the aforesaid project got delayed due to various external factors/array of reasons namely depression in real estate sector, litigation started by farmers against the Noida Authority at Allahabad High Court in respect of ....
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.... investors have been reduced into writing before Delhi High Court Mediation Centre. The mediation process is still in progress and more and more investors are approaching on day to day basis. 13. The Corporate Debtor has also submitted that it has assets valued at much more than the amount required for completion of project and resolve the grievance of all its customers. It is just because of depression in real estate sector that the Respondent Company is unable to liquidate other assets of the company and invest the money in present project. 14. It is pertinent to refer here that in the Company Appeal (AT) (Insolvency) No. 07/2017 Hon'ble NCLAT vide a detailed order dated 21st July 2017 it has been clearly held that the amount invested by the applicants are covered within the meaning of expression 'financial debt' as defined in Section 5(8)(f) of the Code and the meaning of expression financial creditors' as defined in Section 5(7) of the Code. The relevant portion of the order passed by the Appellate Tribunal is reproduced below. "21. The appellants have enclosed the annual return of Respondent-Corporate Debtor dated 31st March 2014. Therein the amount deposited by 'investors....
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....e amount paid by the appellants to the Corporate Debtor, fulfil the other condition of "disbursement against consideration of time value and money", to come within the definition of "Financial Creditor" having satisfied that the Corporate Debtor raised the amount through a transaction of sale and purchase of agreement having commercial effect of a borrowing (Section 5(8)(f)). 25. The agreement shows that the respondent agreed to complete the construction of shopping mall on or before December 2009, in all respects, and was required to complete and handover the shop in the shopping mall before the said date. It is not the case of the respondent that the construction was stopped or delayed on account of factors beyond the control of the respondent, as stipulated in the later part of the Memorandum of Understanding. It was agreed upon by the respondent that since the appellants have paid most of the amount the respondent was ready to pay "monthly committed returns" to the appellants. However, as the appellants were not required the monthly return till December 2008 i.e. for 9 months so the Respondent-Corporate Debtor undertook to make a consolidated payment of Rs. 99,600 less TDS. F....
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.... only to see if the application under Section 7 is otherwise complete. It is accordingly, seen that the present application has been duly filed in requisite Form 1 in terms of Section 7 of the Code read with Rule 4 of the Rules along with information and documents as required in support of the claim as well as to prove the default. 17. Under sub-section 5(a) of Section 7 of the code, the application filed by the applicant financial creditor has to be admitted on satisfaction that; 1. Default has occurred. 2. Application is complete, and 3. No disciplinary proceeding against the proposed IRP is pending. 18. In the case in hand there is no dispute that the respondent company has committed default in repayment of the guaranteed committed amount. Hon'ble NCLAT has already held that the amount invested by applicants come within the meaning of financial debt as defined in Section 5(8)(f) and that the applicants are financial creditors. We are also satisfied that the instant application of the financial creditors is complete and there is no disciplinary proceeding pending against the proposed IRP. 19. As a sequel to the above discussion, this petition is admitted and Mr. Vikram B....
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....sty. It is further made clear that all the personnel connected with the Corporate Debtor, erstwhile directors, promoters or any other person associated with the Management of the Corporate Debtor are under legal obligation under Section 19 of the Code to extend every assistance and cooperation to the Interim Resolution Professional as may be required by him in managing the affairs of the Corporate Debtor. In case there is any violation by the ex-management or its ex-directors the Interim Resolution Professional would be at liberty to make appropriate application to this Tribunal with a prayer for passing an appropriate order. The Interim Resolution Professional shall be under duty to protect and preserve the value of the property of the 'Corporate Debtor' as a part of its obligation imposed by Section 20 of the Code and perform all his functions strictly in accordance with the provisions of the Code. 23. It is appropriate to mention that this matter was referred to Three Members' Bench as winding up petitions under Section 433(e) of the Companies Act, 1956 were pending adjudication before Hon'ble Delhi High Court. The view taken by the Three Members' Bench in its order dated 16-02....
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.... the strategic investor, if any, the same could be examined as well by the Committee of Creditors of the Corporate Debtor along with Interim Resolution Professional after admission the present petition. 26. During pendency of present petition various applications of similar nature for seeking similar relief i.e. C.A. No. 102(PB)/2018 to C.A. No. 109(PB)/2018, C.A. No. 111(PB)/2018 to C.A. No. 133(PB)/2018 under Rule 11 of the National Company Law Tribunal Rules, 2016 have been filed on behalf of various persons/allottees those have booked their apartments/flats etc. in the aforesaid project launched by the Corporate Debtor, for intervention in the matter. In the aforesaid applications it is submitted by the applicants that on account of non-delivery of possession of the apartments/flats etc. as well as on account of non-payment of assured return for considerable time, various allottees have resorted to different legal recourse. Many allottees have approached this Tribunal under Section 213(b) of the Companies Act, 2013. Over 500 allottees have filed a criminal complaint under Section 409 r/w Sections 415 and 120B of IPC before Economic Offence Wing, New Delhi which was registered ....