TaxTMI 
TaxTMI 
TaxTMI 
2022 (2) TMI 19
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....e only) as investment from Mrs. Nidhi Rekhan, the purported financial creditor, and allotted flat Nos. A-1201 on 12thfloor and E-1301 on the 13th floor, total area admeasuring 4476 sq. ft. in project "Ansal Heights 86" in Sector 86, Gurugram after executing an agreement dated 20.7.2016 (hereafter called "Agreement").The Corporate Debtor promised to pay the Mrs. Nidhi Rekhan an assured return @ 24% per annum on the amount deposited as "down payment" by the financial creditor vide two cheques - one cheque bearing number 000031 for a sum of Rs. 50 lakhs dated 20.07.2016 and another cheque number 000032 for Rs. 50 lakhs dated 20.07.2016 - against allotment of the said flats. It is claimed by the Appellant that the Corporate Debtor issued letter dated 15.6.2019, wherein it stated that it shall continue to pay assured returns, as per Agreement dated 20.07.2016 even after the surrender of the flats until the final repayment of the principal amount as well as the assured returns has been made. It is claimed by the Appellant that it surrendered the booking of the said flats to the Corporate Debtor which was accepted and an amount comprising of the deposited principal amount of Rs. 1 Crore a....
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....orporate Debtor(attached at pp. 67 - 68 of Appeal Paper Book) to claim that the Corporate Debtor has agreed that the surrender of flats will not stop the assured returns as per the agreement dated 20.7. 2016 and the corrigendum agreement dated 6.9. 2017 and 31 7.2018 in respect of the said flats and therefore, his amount deposited with the Corporate Debtor is earning assured return and in such a situation the principal amount is a financial debt and the Appellant is a financial creditor under the definitions in IBC. 6. The Learned Counsel for Appellant has referred to the judgment of NCLAT in the case Nikhil Mehta & Sons vs AMR Infrastructure Ltd. [Company Appeal (AT)(Ins) No. 07 of 2017] wherein it is held that there are two important ingredients for a debt to be categorized as a financial debt, which are (i) the debt should be disbursed against the consideration of time value of money; and (ii) the debt should arise from a transaction having the commercial effect of borrowing and moreover Section 5(8)(f) states that "any amount raised from an allottee under a real estate project shall be deemed to be an amount having the commercial effect of borrowing" to claim that since both t....
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....ched to clause (f) of section 5(8) of the IBC and, hence will not be considered a financial creditor. He has further referred to paragraphs 38 and 41 of NCLAT"s judgment in Sudha Sharma vs Mansi Brar (supra) to emphasise that money deposited/invested for speculative purpose does not entitle a person to take advantage of clause (f) of section 5(8) and be considered a financial creditor by virtue of being an allottee of a housing unit/flat. 8. Furthermore, the Ld. Counsel for Respondent has also referred to the judgment of NCLAT in the case of Ankit Goyat vs. Sunita Agarwal [Company Appeal (AT)(INS) No. 1020/2019] wherein it is held that in a situation where the allottee seeks to benefit from a "lucrative agreement" when he is "securing" his money by way of the agreement which gives him a lien over the flat/s, he cannot be considered a financial creditor but is a speculative investor who cannot be given benefit as a financial creditor under section 5(8)(f) of the IBC. 9. Before moving further, we introduce some definitions, which are relevant for this appeal: "Section 3. Definitions. - (11) "debt" means a liability or obligation in respect of a claim which is due from any pers....
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.... the time of handing over possession of the Allotted Flats/Units complete in all respects, by the FIRST PARTY and upon signing and registration of sale deed(s) and/or title documents in favour of the Allottee or their nominee (s) of the said Unit/Flat. (5) Since the Allottee has opted for DOWN PAYMENT PLAN, the FIRST PARTY hereby agrees and assures and undertakes to pay to the Allottee an assured return of 24% (twenty four percent) per annum on the amount paid by the Allottee. The assured return shall be paid annually commencing from the execution of this Agreement and the Allottee shall be entitled to the same till the termination of this Agreement. (6) That the Allottee has made it clear to FIRST PARTY and FIRST PARTY hereby agrees, that the Allottee shall after obtaining written consent of FIRST PARTY, be fully entitled to assign their Allotted Flats/Units or any part thereof in favour of any of their nominee(s)/purchasers at any consideration and FIRST PARTY and the Developer, upon receiving written intimation from the Allottee to that effect, will be obliged to register such Units/Flats as may be desired by the Allottee in the name of their nominated nominee without charg....
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....tees of real estate projects can come armed with the same kind of information, this time provided by the promoter or real estate developer itself, on the basis of which, prima facie at least, a "default" relating to amounts due and payable to the allottee is made out in an application under Section 7 of the Code. We may mention here that once this prima facie case is made out, the burden shifts on the promoter/real estate developer to point out in their reply and in the hearing before the NCLT, that the allottee is himself a defaulter and would, therefore, on a reading of the agreement and the applicable RERA Rules and Regulations, not be entitled to any relief including payment of compensation and/or refund, entailing a dismissal of the said application. At this stage also, it is important to point out, in answer to the arguments made by the Petitioners, that under Section 65 of the Code, the real estate developer can also point out that the insolvency resolution process under the Code has been invoked fraudulently, with malicious intent, or for any purpose other than the resolution of insolvency. This the real estate developer may do by pointing out, for example, that the allotte....
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....a Builder-Buyer agreement. On the contrary, it is an agreement which is more in the nature of detailing and protecting an investment made by Mrs. Nidhi Rekhan, who is coming in the garb of an allottee. As has been held by this tribunal in the matter of Sudha Sharma versus Mansi Brar & Anr. [Company Appeal (AT) (INS) No. 83 of 2020] and the subsequent order of Hon"ble Supreme Court in Mansi Brar Fernandes versus Sudha Sharma and Anr. [Civil Appeal No. 3826/2020] which affirms the order of this Tribunal in Company Appeal (AT) (INS) No. 83 of 2020, we find that the purported allottee Mrs. Nidhi Rekhan, is actually a speculative investor earning a high rate of interest on her investment and is by no means interested in the construction, completion and possession of the said flats no. A-1201 and E-1301. Therefore, we have no hesitation in holding that Mrs. Nidhi Rekhan/Appellant cannot claim to be a "financial creditor" as defined under explanation (i) of section 5(8)(f) of the IBC. The facts in the matter of Pioneer Urban Land and Infrastructure (supra)support the facts of this case as in this case the Appellant is not a genuine allottee but an investor who has come as allottee with no....
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....e in her favour. We are of the view that the facts in the matter of Mansi Brar Fernandes versus Sudha Sharma and Anr. (supra) are akin to the facts of the instant case and therefore the related order squarely applies to this case. 15. In the matter of Anuj Jain Interim Resolution Professional for Jaypee Infratech Limited versus Axis Bank Limited and Ors. (2020 8 SCC 401), Hon"ble Supreme Court has held as follows :- "42.3 The enunciation aforementioned illuminates the reasons as to why at all a financial creditor is conferred with a major, rather pivotal, role in the processes contemplated by Part II of the Code. It is the financial creditor who lends finance on a term loan or for working capital that enables the corporate debtor to set up and/or operate its business; and who has specified repayment schedules with default consequences. The most important feature, as this Court has said, is that a financial creditor is, from the very beginning, involved in assessing the viability of the corporate debtor who can, and indeed, engage in restructuring of the loan as well as reorganization of the corporate debtor's business when there is financial stress. Hence, a financial creditor i....