9911796707
TMI Blog2017 (6) TMI 459X X X X Extracts X X X X X X X X Extracts X X X X ..... lats would not fall within the definition of a financial debt which essentially means a debt disbursed against consideration for the value of money, or money borrowed against payment of interest, while the concept of Assured Returns typically requires full payment towards the property to be developed, and perhaps leased out for the owner by the developer on rentals, but pending that stage, the developer pays a Return on the property from day one. As pending completion it cannot be termed as Rent, the return is given and taxed under the Head “Interest”. The petitioner's claim herein is more encumbered and complex than a plain and simple claim against assured returns. The present transaction is based on multiple contractual novated agreeme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Manisha Gola, Company Secretary ORDERS Vide the present petition prayer has been made to trigger off Insolvency Resolution Process against the Respondents under the Insolvency and Bankruptcy Code 2016, (hereinafter referred to as Code). 2. As per averments, the petitioner claims to be a financial creditor, claiming a financial debt of ₹ 30,69,000/- from the Corporate Debtor. The basis of the claim emanates from an initial transaction between petitioner/financial creditor with one M/s Maruti Realtors Pvt. Ltd. for purchase of 300 sq. yard plot in a residential project to be developed at Bagpat. The consideration paid by the financial creditor was ₹ 10,50,000/- and the terms of their agreement dated 25.08.2006, pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed with the office of the ROC. It was also undertaken that w.e.f. 1.06.2014, interest @ 12.5% would be payable on the aforesaid amount which shall stand enhanced to 15% in case of any default. Relying on this agreement and on the basis of certain cheques received in furtherance thereof, the petitioner claims himself to be a financial creditor. To substantiate the allegations of assured returns, he has filed his Form 26AS of the Income Tax to show that in acknowledgment of the outstanding liability towards payment of the interest, the Corporate Debtor had been deducting the TDS and depositing the same under Section 194A (interest other than securities). The post-dated cheques given in discharge of the interest liability towards the assure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the definition of a financial debt . The initial transaction was for purchase of a proposed project by M/s Maruti Realtors. The obligation of M/s Maruti Realtors was taken over by the Corporate Debtor herein. The Corporate Debtor agreed to pay assured returns till delivery of the project. Agreements after agreements were superseded giving rise to novation of contracts. The last contractual obligation arose from agreement dated 26.06.2014 wherein it was agreed to settle the dispute in the sum of ₹ 30,69,000/-, which included not only the booking amount paid by the petitioner, but also included compensation and charges for commitment, services rendered, appreciation etc. The case of the petitioner was one for purchase of any immovable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rds any interest/assured returns on the proposed property in terms of the agreements, essentially towards for purchase of a piece of property, would not fall within the purview of the financial debt as defined under the Code for initiating Insolvency Resolution Process. Merely because an assured amount of return has been promised, which is termed as interest under Section 194A of the I.T. Act, for the period till the property is developed and handed over, it would not acquire the status of a financial debt as it is not money loaned to be recovered with interest. 6. In view of the facts of the case, this Bench is of the opinion that the aforesaid transaction between the parties would not fall within the definition of a financial debt so ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
