2021 (10) TMI 709 - Tri - Insolvency and Bankruptcy

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - in terms of allotment letter no Builder Buyer Agreement was executed in between the parties - Financial Creditor or allottee? - HELD THAT - Since the amount is raised under the real estate project for the allotment of two units, therefore, as per Section 5(8)(f) Explanation (i), the amount having the commercial effect of a borrowing; and the Petition an allottee under the real estate project - the applicant is well advised to file an application in terms of the amendment made in Section 7 of IBC. Since, the application is not in terms of the amendment made in Section 7 of the IBC, we are not inclined to issue notice upon the respondent. Application dismissed.

Summary

Issues involved:
- Praying for initiation of CIRP under Section 7 of the IBC
- Determining if the petitioner can be treated as a Financial Creditor
- Interpretation of Section 5(8) of the IBC
- Dismissal of the present application due to non-compliance with the amended provision of Section 7 IBC

Analysis:

The judgment revolves around the application filed by the petitioner seeking initiation of Corporate Insolvency Resolution Process (CIRP) under Section 7 of the Insolvency and Bankruptcy Code (IBC). The counsel for the applicant acknowledged that although an allotment letter was issued, no Builder Buyer Agreement was executed between the parties. The counsel argued that despite this, the petitioner should be considered a Financial Creditor rather than an allottee.

The Tribunal referred to Section 5(8) of the IBC, which defines financial debt and includes various types of debts disbursed against the consideration for the time value of money. Notably, the section specifies that any amount raised from an allottee under a real estate project shall be deemed to have the commercial effect of a borrowing. Therefore, the Tribunal concluded that the amount raised under the real estate project for the allotment of two units qualifies as having the commercial effect of a borrowing, making the petitioner an allottee under the real estate project.

As the application did not align with the amended provision of Section 7 of the IBC, the Tribunal decided to dismiss the present application. However, the petitioner was granted the liberty to file a fresh application after meeting the criteria as per the amended provision of Section 7 of the IBC. This decision underscores the importance of compliance with the specific requirements outlined in the IBC for initiating CIRP proceedings, ensuring adherence to the legal framework governing insolvency proceedings.