TaxTMI 
TaxTMI 
2023 (10) TMI 949
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....the National Company Law Appellate Tribunal, New Delhi Order dated 28.02.2023 by NCLAT, in C.A.(AT) No. 991/2022 (hereinafter referred to as "NCLAT") which ruled that as beneficiary of a decree by the Uttar Pradesh Real Estate Regulatory Authority (hereinafter referred to as "UPRERA"), the order of the Resolution Professional (R.P.) proposing that they be treated differently from other home buyers allottees, does not call for interference. 2. The brief facts are that the appellants are home buyers, who had opted for allotment in a real estate project of the respondent company (hereinafter referred to as "Bulland Buildtech Pvt. Ltd." or "the respondent". Aggrieved by the delay in the completion of the project, the appellants approached th....
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....ia held as follows: "3.2. Accordingly, this bench is of the considered view that decree would be categorized as either financial or operational debt depending on the nature of the underlying claim which stands crystallized through the arbitral or court the nature of the debt due under decree would depend on the nature of transaction from which the decretal debt has arisen. In the present case the applicant had obtained a decree from RERA in capacity of allottee in a Real Estate Project and allottee in Real Estate Project is covered under the definition of Financial Debt contained in under Explanation to Section 5(8)(f) of the Code. Accordingly, the applicant, being holder of a decree in capacity of allottee is a Financial Creditor.....
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....itors" and "financial debt" in the following terms: "financial creditor" means any person to whom a financial debt is owed and includes a person to whom such debt has been legally assigned or transferred to;" (8) financial debt means a debt along with interest, if any, which is disbursed against the consideration for the time value of money and includes - (a) money borrowed against the payment of interest; (b) any amount raised by acceptance under 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 re....
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...." The amendment of 2018 introduced an explanation below. Sub-section 8(f) to Section 5 which reads as follows: "(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 subclause,- (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);] 6. It is thus evident that....
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.... not intend to withdraw from the project, he shall be paid, by the promoter, intererst for every month of delay, till the handing over of the possession, at such rate as may be prescribed. (2) The promoter shall compensate the allottees in case of any loss cause to him due to defective title of the land, on which the project is being developed or has been developed, in the manner as provided under this Act, and the claim for compensation under this sub-section shall be not barred by limitation provided under any law for the time being in force. (3) If the promoter fails to discharge any other obligations imposed on him under this Act or the rules or regulations made thereunder or in accordance with the terms and conditions....