2019 (10) TMI 1363

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.... S.S.P. Industries Private Limited against P dot G Construction Pvt. Ltd. And the Resolution Professional and the RoC seeking reliefs which are as follows:- a. To direct the Respondent No.2 herein to provide equitable treatment to the Applicant as against the other Financial Creditors; b. To treat the Applicant herein as a Secured Financial Creditor of the Respondent No.1; c. To put the Application under Section 31 of the Insolvency and Bankruptcy Code, 2016 filed by the Respondent No.2 herein seeking approval of the impugned Resolution Plan in abeyance till the disposal of the instant Application keeping in mind the interest of the Home buyers and the Applicant herein; and d. It is prayed that the Hon&#3....

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....act that the case of these Creditors is, they are home buyers of this Corporate Debtor. 5. Now the case of these Applicants is that since the Corporate Debtor has entered into a registered agreement of sale to sell flats, they shall be considered as secured creditors because sale agreement has been executed in favour of these Creditors. 6. In order to bolster his arguments, these Applicants have relied upon definitions of secured creditor and definition of security interest which are as follows:- "Secured Creditor means a creditor in favour of whom security interest is created; Security Interest means, right, title or interest or a claim to property, created in favour of, or provided for a secured creditor by a trans....

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....operty. So long as no right is conveyed against property reflecting transfer of interest as envisaged under TP Act, merely by looking at some sale agreement agreeing to convey title over undivided share will not tantamount to creation of any encumbrance against the interest over the property. The Registration of the document before the competent authority will not make any difference to the character of the document. The rights will flow from the document executed in between the parties. Here the right conferred upon these creditors is only a right to proceed against the corporate debtor, in the event the corporate debtor fails to adhere to the terms and conditions of the agreement sale, therefore, these Applicants insisting upon to declare....

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....ifferent from contracts with operational creditors for supplying goods and services. Financial creditors generally lend finance on a term loan or for working capital that enables the corporate debtor to either set up and/or operate its business. Thus, preserving the corporate debtor as a going concern, while ensuring maximum recovery for all creditors being the objective of the Code, financial creditors are clearly different from operational creditors and therefore, there is obviously an intelligible differentia between the two which has a direct relation to the objects sought to be achieved by the Code." 12. It has been holding that if classification is permissible by change of the character of the obligation between the partie....