TaxTMI 
TaxTMI 
TaxTMI 
2021 (7) TMI 580
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....av Sarkar, Advocates for Respondent No.1. Mr. Arun Kumar Gupta, Mr. Rajesh Agarwal and Ms. Sneh Maheswari, Advocates for Respondent No. 2 & 3. JUDGMENT A. I. S. Cheema, J. The Appellant, Suspended Director of 'Oxford Facilities Management' (the Corporate Debtor), has filed this appeal against impugned order dated 13th March, 2020 passed in CP(IB) No. 2084/KB/2019 vide which order the Adjudicating Authority (National Company Law Tribunal) Kolkata Bench, Kolkata admitted the application under Section 7 of Insolvency and Bankruptcy Code, 2016 ('IBC' for short) filed by Respondent No. 1 - 'Avaani Oxford Owners' Association' and Corporate Insolvency Resolution Process (CIRP) was initiated. 2. Appellant claims and it is argued that the Appell....
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....llenged the maintainability of the Section 7 IBC Proceedings filed and that the claim, if any, can be against the Developer Company and claim had been filed before the Resolution Professional of the Developer Company and that the debt was not a financial Debt. It is stated that still the Adjudicating Authority summarily concluded the matter and admitted the application. 5. The Appellant claims that the Developer - 'M/s Avaani Projects and Infrastructure Ltd.' proposed to construct 'Avani Oxford' a residential complex at Kolkata. Proposed buyers, who later became flat owners, had entered into agreement with the Developer and each of them had deposited, inter alia, towards sinking fund @ Rs. 25/- per Sq. Ft. and towards maintenance @ Rs. 2/-....
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.... said amount deposited with the Developer was not to carry interest. Reference is made to Para 7.1 of the Agreement under the heading 'Article-VII - Sinking Fund'. It is claimed that the amount was in the nature of a deposit for being used for maintenance and thus, it was not a 'Financial Debt'. Respondent No. 3 - 'Oxford Facilities Management' was established as a Maintenance Company. It is stated that Respondent No. 3 is 100% subsidiary of the Developer Company - 'M/s Avaani Projects and Infrastructure Ltd.' and no flat owner is member of Respondent No. 3 - Corporate Debtor. It is also claimed that subsequently the Respondent No. 1 (Financial Creditor) Company was established for taking over the management of the building. Learned Counsel....
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.... (i) is perused any amount raised from the allottee falls within the definition of 'Financial Debt'. Thus, the Respondent No. 1 is a 'Financial Creditor'. The Learned Counsel referred to copy of Agreement (Page 160 of the Appeal) to submit that the Agreement made provision that the amount being collected from the flat purchaser by the Developer would be held by Respondent No. 3 - Corporate Debtor and after the flat buyers take possession of the flats/units, the sinking fund and the other amounts would be transferred to the Maintenance Company/Syndicate and/or Holding Organization, as the case may be. Learned Counsel for Respondent No. 1 submitted that Respondent No. 1 was the said Holding Company which was entitled to receive the amounts bu....
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....d there was debt due and default and that the Adjudicating Authority rightly admitted the claim. 11. Having heard Learned Counsel for both the sides and having gone through the record, it is clear that the Sale Agreement executed between the Developer - 'M/s Avaani Projects and Infrastructure Ltd.' and the main land owner 'M/s Electrical Manufacturing Company Ltd.' and the Corporate Debtor as Maintenance Company were to render common service and upkeep till the Association/Society of the flat owners was formed. The Corporate Debtor was to look after the maintenance till three years of the Deed of Conveyance by the respective purchasers with the Developer and Maintenance Company or so soon after completion of construction of Phase II of Ava....