TaxTMI 
TaxTMI 
2022 (4) TMI 206
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...., for initiating the Insolvency Resolution Process against M/s Rawal Variety Construction Ltd./Respondent Company and has observed as hereunder:- "17. In the present case there is no such term of the assured return of any agreement which may amount to the repayment for the time value of money. Simply because the petitioner has invested the money for the project being a Promoter would not fall within the definition of term 'Financial Creditor' under any circumstances. This was not a case of a forward sale or purchase agreement having effect of borrowing rather the petitioner was equally interested in the project to be marked for sale. 18. The learned counsel for the petitioner however laid emphasis to the word 'other transaction' as provided in sub-clause (f) of Section 5(8) of the Code. The term 'Transaction' is defined in sub-section (33) of Section 3 of the Code which includes an agreement or arrangement in writing for the transfer of assets, or funds, goods or services, from or to the corporate debtor. We are unable to accept the contention of the learned counsel for the petition because the main requirement of the provision that the amount was disbursed agains....
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....t having the commercial effect of borrowing. That the amount was disbursed against consideration for time value of money and that the Appellant fulfils all the essential characteristics which falls within the definition of 'Financial Creditor' under section 5(7) of the Code. The Project ought to have been completed on or before 31.12.2013 and as there is an admitted default, the Respondent company owes the amount lent to it which has become due and payable after the date of default on 31.12.2013. 3. Submissions of the Respondent: The Learned Counsel for the Respondent submitted that as per terms of the Memorandum of Understanding dated 28.9.2011 the Appellant has to bear the cost of land. The plot measuring 21.70 bighas is owned by Smt Krishna Devi, who has placed her land in the common pool to be treated as part and parcel of the Project as per Agreement dated 27.02.2012. The Appellant is engaged in the business of forward sale through purchase agreement and have invested a sum of Rs. 4,21,37,850/- in its capacity as a 'Promoter' only. The Learned Counsel for the respondent strenuously contended that as the Appellant is admittedly a ....
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....per is inter alia in the business of developing, planning, constructing and selling residential and commercial complexes in Himachal Pradesh, Punjab and other parts of North India and has the technical know-how and vast experience in developing and marketing residential and commercial projects. And Whereas the Promoter is engaged in real estate business, including marketing and sale of residential plots/flats, industrial properties in different parts of India. And Whereas the Promoter is int4erested in setting up a furnished studio apartment project at Solan in the State of Himachal Pradesh. Xxx NOW, THEREFORE, THIS MEMORANDUM OF UNDERSTANDING WITNESSETH AS UNDER:- 1. The Developer has acquired area of land measuring 21.70 Bighas in the Mauza Nandoo, Tehsil Solan, District Solan, Himachal Pradesh on behalf of the Promoter. However, land already procured, to be procured and under the process of procurement, by the Developer, shall be treated as part and parcel of the Project and will be used for development as a property of the project by all means. The Developer will complete all necessary permission /licenses /procurement of land within....
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....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; (f) any amount raised under any other transaction, including any forward sale or purchase agreement, having the commercial effect of a borrowing; [Explanation.-For the purposes of this sub-clause,- (i) any amount raised from an allottee under a real estate project shall be deemed to be an amount having the commercial effect of a borrowing; and (ii) the expressions, "allottee" and "real estate project" shall have the meanings respectively assigned to them in clauses (d) and (zn) of section 2 of the Real Estate (Regulation and Development) Act, 2016 (16 of 2016);] (g) any derivative transaction entered ....