2023 (3) TMI 241

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.... This is an application bearing C.P. (IB) No. 1042/MB/C-IV/2020 filed by Innova Premises Co-operative Society Limited, the Financial Creditor/Applicant, under section 7 of Insolvency & Bankruptcy Code, 2016 (I&B Code) seeking initiation of Corporate Insolvency Resolution Process (CIRP) against Marathon Nextgen Realty Limited, Corporate Debtor. 2. The Application is filed by Mr. Nikesh Jalamchand Sakaria, Hon. Secretary of the Financial Creditor, duly authorised vide the Resolution passed by its Managing Committee dated 05.12.2019, claiming total default of Rs.1,55,31,417/- (Rupees one crore fifty-five lakh thirty-one thousand four hundred seventeen only). 3. The Date of Default is stated to be 31.03.2017 in the Petition. The Petition ....

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....ions were meant for meeting out charges towards the common lights, repairs, salaries of clubs, bill collectors, securities, sweepers, and also other expenses necessary and incidental to the management and maintenance of the building as clarified in Clause 14 of the agreement. 6. By a letter dated 06.08.2016, addressed by the Corporate Debtor to the allottees of the Building, the Corporate Debtor submitted the collection and disbursement account of the building for the year 2005 to 2016 and drew attention to Clause 8 & 9 of the Agreement whereby the Allottees has expressly agreed upon to form the condominium. Vide letter dated 25.07.2018, the Corporate Debtor also furnished collection and disbursement account for 01.04.2016 to 31.03.2017 ....

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.... the same was paid as their contribution to corpus to meet out maintenance charges, hence the amount due from the Corporate Debtor does not satisfy the conditions of section 5 (8) (f) of the Code; b) the responsibility of towards maintenance of common layout amenities of the entire project like paved internal access, campus security, recreation ground with event space and grand entrance lobby etc. was carried out by the Corporate Debtor, accordingly the Corporate Debtor had raised debit note towards allottees shares of maintenance charges of common layout amenities for period April 2017 to June 2020; and c) instead of amount due from it, the members of the Applicant Society owes Rs.5,59,481/- after appropriation of charges pertaining to mai....

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....spute that this money was collected for the maintenance/taxes payment and there is no default in handing over the flats booked by members of the Applicant Society. In our considered view the amount in question is akin to the money paid in advance to a service provider for availing services and defraying expenses to be incurred by such service providers in rendition of agreed services. 13. Any debt arising from supply of goods or services including advance paid towards supply of such goods or services fall under the definition of Operational Debt. In the present case, the Applicant has filed this Application claiming itself to be a Financial Creditor under section 5 (8) (f) of the Code whereas the amount in question is in nature of an Ope....