2022 (3) TMI 813 - 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 - HELD THAT - As per Section 5(8) of the Code, amount raised from a real estate allottee is included in the definition of 'financial debt'. Further, as per Sec. 7(1) proviso an application for initiation of CIRP against the Corporate Debtor can be brought jointly by not less than 100 or not less than 10 percent of the total number of creditors in the same class, whichever is less - There is nothing on record to show that Financial Creditor in the case before us represent 10% of the total number of creditors in a class. There is nothing on record to show the total number of allottees in the housing project 'Morpheus Greens . It is a mandate of the law that Financial Creditor has to satisfy by filing an additional affidavit regarding the maintainability of the Application. Financial Creditor has not done so. The application is not maintainable under the Code - Application dismissed.

Summary

Issues:
Initiation of Corporate Insolvency Resolution process under Section 7 of the Insolvency & Bankruptcy Code, 2016 against Corporate Debtor.

Detailed Analysis:
1. The Financial Creditor filed an application under Section 7 of the Insolvency & Bankruptcy Code, 2016, seeking to initiate Corporate Insolvency Resolution process against the Corporate Debtor. The Financial Creditor had made payments towards booking of units in a housing project by the Corporate Debtor, leading to a total debt owed by the Corporate Debtor amounting to &8377; 3,08,67,100.

2. The Corporate Debtor, a Private Limited Company engaged in construction and property development, had received payments from the Financial Creditor but failed to deliver the units as agreed. The Financial Creditor claimed non-realization of assured return cheques and outstanding amounts, leading to disputes over possession and repayment.

3. The Financial Creditor contended that the Corporate Debtor failed to fulfill its obligations under multiple Memorandums of Understanding (MoUs) and issued demand notices for repayment. The Corporate Debtor's failure to repay led to legal actions, including a complaint under Section 138 of the Negotiable Instruments Act, resulting in the Corporate Debtor being declared an absconder by the court.

4. Despite previous involvement in insolvency resolution proceedings, the Financial Creditor argued that the amount paid to the Corporate Debtor constituted a financial debt under the Insolvency and Bankruptcy Code due to non-repayment and default by the Corporate Debtor.

5. The Tribunal analyzed the contentions and documents presented by the Financial Creditor, highlighting the requirement for the Financial Creditor to represent a significant portion of creditors for the application's maintainability. The Tribunal emphasized the need for compliance with legal mandates and the inappropriateness of using the forum for recovery suits.

6. Ultimately, the Tribunal dismissed the application, stating that the Financial Creditor failed to meet the necessary criteria for maintainability under the Code. The Tribunal directed the issuance of a copy of the order to both parties involved in the dispute.