TaxTMI 
TaxTMI 
2020 (10) TMI 261
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....plicant as well as Corporate Debtor who filed the present CA-771/2020. Ld. Counsel for Corporate Debtor raised some objections, that in view of the Ordinance which was promulgated on 28.12.2019, some amendment is made regarding the initiation of the CIRP on behalf of the allottee of flat buyer, who is the financial creditor and comes under the definition of Section 5(8)(f) explanation of the IBC and against that ordinance one writ is filed before the Hon'ble Apex Court in WP (Civil)-26/2020, in which Hon'ble Apex Court held that "the status quo, as of today, with respect to the pending applications, shall be maintained in the meanwhile". She further submitted that under such circumstance, no order is required to be passed on the ....
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.... declared financial creditor and the debt is financial debt and he comes under the definition of Section 5(8) of the IBC. Now, in the light of the submissions raised on behalf of the parties without going into the merit of the case, we would like to decide the issue whether in view of the matter pending before the Hon'ble Apex Court in WP (Civil)-26/2020 in which Hon'ble Apex Court held that "the status quo, as of today, with respect to the pending applications, shall be maintained in the meanwhile", this adjudicating authority can proceed further on the contention of the application that he does not come under Section 5(8)(f) explanation rather he comes under Section 5(8) alone. Before considering the submissions made on beha....
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.... (a) money borrowed against the payment of interest; (b) any amount raised by acceptance under any acceptance credit facility or its de-materialised equivalent; (c) any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument; (d) the amount of any liability in respect of any lease or hire purchase contract which is deemed as a finance or capital lease under the Indian Accounting Standards or such other accounting standards as may be prescribed; (e) receivables sold or discounted other than any receivables sold on non-recourse basis; if) any amount raised under any other transaction, including any forward sale or purchase agree....
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....of money. "Disbursement" is defined in Black's Law Dictionary (10th ed.) to mean: "1. The act of paying out money, commonly from a fund or in settlement of a debt or account payable. 2. The money so paid; an amount of money given for a particular purpose." In the present context, it is clear that the expression "disburse" would refer to the payment of instalments by the allottee to the real estate developer for the particular purpose of funding the real estate project in which the allottee is to be allotted a flat/apartment. The expression "disbursed" refers to money which has been paid against consideration for the "time value of money". In short, the "disbursal" must be money and must be against consideration for the "time value of mo....
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....hich are not necessarily loan transactions, so long as they have the commercial effect of a borrowing. We were referred to Collins English Dictionary & Thesaurus (Second Edition, 2000) for the meaning of the expression "borrow" and the meaning of the expression "commercial". They are set out herein below: "borrow-vb 1. to obtain or receive (something, such as money) on loan for temporary use, intending to give it, or something equivalent back to the lender. 2. to adopt (ideas, words, etc.) from another source; appropriate. 3. Not standard, to lend. 4. (intr) Golf. To putt the ball uphill of the direct path to the hole: make sure you borrow enough." "commercial, -adj. 1. of or engaged in commerce. 2. sponsored or paid for b....
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....C defines that "A decree is the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 47 or Section 144 but shall not include:- (i) Any adjudication from which an appeal lies as an appeal from an order (ii) Any order of dismissal for default Explanation:- The decree is preliminary when further proceedings have to be taken before the suit can be completed disposed of. It is final when such adjudication completely dispose....