2020 (10) TMI 1302 - Tri - Insolvency and Bankruptcy

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - default of payment of amount on the basis of Settlement Agreement - whether the amount which the petitioner claimed as a defaulted amount comes under the definition of Financial Debt or not? - HELD THAT - Mere plain reading of the provisions shows that the debt means a liability or obligation in respect of a claim which is due from any person and includes a financial debt and operational debt and when we shall read the definition of debt and financial debt together then we may say that of course the debt includes the Financial Debt and Operational Debt but all the debts are not Financial Debt or Operational Debt only debt defined under Section 5(8) of the IBC comes under the definition of Financial Debt and debt defined under Section 5(21) of the IBC comes under the definition of Operational Debt. The case of the Petitioner is based upon the Settlement Agreement and the Petitioner herself admits this fact that the Petitioner is no longer a unit buyer as the unit stands withdrawn by issuance of the refund cheques therefore in the light of that fact which the Petitioner has mentioned in her application when we shall consider the definition of Financial Debt as defined under Section 5 (8) of the IBC 2016 then it can be said that any amount raised from the Allottee under a Real Estate Project shall be deemed to be an amount having the commercial affect of a borrowing. Since the Applicant herself admits this fact that she is no longer Allottee therefore 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. Whether the applicant claims herself a Financial Creditor under Section 5(8) on the basis of a Settlement Agreement or not? - HELD THAT - It is the settled principle of law that the NCLT is not a recovery court rather when a default of financial debt or operational debt occurred in that case the financial creditor or the operational creditor may file an application for initiating the CIRP under Section 7 or Section 9 of the IBC respectively and in the light of the facts the case in hand is considered it is concluded that the settlement agreement on the basis of which the present application is filed by the applicant does not comes under the definition of Financial Debt. The Applicant is not the Financial Creditor under Section 5 (7) of the IBC 2016 and the amount which the applicant has invested is not a Financial Debt under Section 5(8) of the IBC 2016 and so far the default of payment of amount on the basis of Settlement Agreement is concerned the default also does not come under the definition of Financial Debt. Application dismissed.

Summary

Issues involved:
1. Whether the amount claimed by the petitioner qualifies as a financial debt under the Insolvency & Bankruptcy Code, 2016?
2. Whether the petitioner can be considered a financial creditor based on the settlement agreement?
3. Whether the settlement agreement in question constitutes a financial debt justifying initiation of Corporate Insolvency Resolution Process (CIRP)?

Detailed Analysis:

1. The petitioner filed a petition under Section 7 of the Insolvency & Bankruptcy Code, 2016, seeking Corporate Insolvency Resolution Process against the respondent for failure to repay financial debt. The petitioner alleged that the respondent, a construction company, failed to pay assured returns and refund the investment amount, leading to dishonored cheques and non-payment of dues. The petitioner claimed an amount of ?2,19,56,000 as unpaid financial debt, including interest and assured returns.

2. The petitioner argued that the respondent's actions constituted default under the Code, justifying initiation of CIRP. However, the tribunal analyzed the definition of "financial debt" under Section 5(8) of the IBC, which includes debts disbursed against the time value of money. The tribunal noted that the petitioner, no longer an allottee due to refund cheques, did not fall under the definition of a financial creditor as per Section 5(7) of the IBC.

3. The tribunal referred to the Settlement Agreement between the parties and emphasized that not all defaults or breaches of such agreements qualify as operational or financial debts under the IBC. Citing precedents, the tribunal concluded that the unpaid instalments under the settlement agreement did not amount to operational debt. Therefore, the tribunal dismissed the petition, stating that the settlement agreement did not constitute a financial debt justifying CIRP initiation.

In conclusion, the tribunal dismissed the petition, ruling that the petitioner did not qualify as a financial creditor under the IBC based on the settlement agreement and the unpaid amount did not meet the criteria of a financial debt. The judgment highlighted the importance of distinguishing between financial debts and other liabilities under the IBC when seeking insolvency resolution processes.