2020 (10) TMI 1302

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....ent/Corporate Debtor on grounds of its inability to liquidate its financial debt. 2. The facts mentioned in the application in brief are as follows: i. As per averments made in the petition, the Corporate Debtor is a Limited Company, engaged in construction of Residential and Commercial Complexes. The Corporate Debtor accepted Rs. 1,00,00,000/- as investment from the Financial Creditor by allotting flat to the Financial Creditor bearing no. A-1201 on 12" Floor and E-1301 on 13" Floor having a total area admeasuring 4476 sq. ft. of the Project "Ansal Heights 86", Sector - 86, Gurugram (herein referred to as the said project). It was assured that the said project will be completed in stipulated time and that Financial Creditor wil....

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.... the Corporate Debtor continuously kept avoiding the Financial Creditor and even till date Corporate Debtor has failed to make the due payment, which clearly show the dishonest and malafide intention of the Corporate Debtor from the very beginning. vii. That the Corporate Debtor is liable to pay the Financial Creditor an amount of Rs. 2,19,56,000/- being the refund amount invested alongwith interest and assured returns alongwith interest on assured returns as denoted in the calculation sheet which is the unpaid admitted financial debt. The Financial Debt continues till date. 3. We have heard the Learned Counsel appearing for the petitioner and perused the averments made in the application. The Learned Counsel appearing for the P....

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....onored. He further submitted that the Corporate Debtor comes under the definition of the Financial Creditor and since there is default in payment of the amount so the notice may be issued against the Respondent. 7. Now, in the light of the submissions raised on behalf of the petitioner, we would like to consider whether the amount, which the petitioner claimed as a defaulted amount comes under the definition of Financial Debt or not? 8. At this juncture, we would like to refer Section 5(8) of the IBC and the same is quoted below: - 5(8) "financial debt" means a debt alongwith interest, if any, which is disbursed against the consideration for the time value of money and includes- (a) money borrowed against the payment....

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....) any counter-indemnity obligation in respect of a guarantee, indemnity, bond, documentary letter of credit or any other instrument issued by a bank or financial institution; (i) the amount of any liability in respect of any of the guarantee or indemnity for any of the items referred to in sub-clauses (a) to (h) of this clause. 9. Mere plain reading of the provision shows that in order to establish, the amount given by a person to another person conies under the definition of financial debt, that person is to establish that the amount is given against the payment of interest, and for the reasons mentioned in Section 5(8) clause (a) to (i). 10. At this juncture, we would like to refer Section 3(11) of the IBC and the same is q....

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.... the commercial affect of a borrowing. Since the Applicant herself admits this fact that she is no longer Allottee, therefore, in our considered view, the amount, which the Applicant has invested does not come under the definition of Section 5 (8)(f) of the IBC, 2016, and if the amount invested by the Petitioner does not come under the definition of Financial Debt then the Petitioner cannot be treated as a Financial Creditor under Section 5 (7) of IBC, 2016. 13. Now the question is whether the applicant claims herself a Financial Creditor under Section 5(8) on the basis of a Settlement Agreement or not? 14. It is the settled principle of law that the NCLT is not a recovery court rather when a default of financial debt or operational d....