9911796707
TMI Blog2017 (8) TMI 454X X X X Extracts X X X X X X X X Extracts X X X X ..... pare parts whose spark plugs are kept in inventory by Car Mechanic and who gets paid only after spark plugs are sold to acquire the status of 'Operational Creditor' so and so forth. The Petitioner in the present case has neither supplied any goods nor has rendered any service to acquire the status of an 'Operational Creditor'. We are further of the view that given the time line in the code it is not possible to construe section 9 read with section 5(20) & (21) of the Code so widely to include within its scope even the cases where dues are on account of advance made to purchase the flat or a commercial site from a construction company like the Respondent in the present case especially when the Petitioner has remedy available under the Con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e payment despite the commitment to issue the same. According to the Applicant, the entire amount was to be refunded in case of non-confirmation of booking in the project within a period of one year. On the aforesaid basis, the Applicant has claimed that a sum of ₹ 30,00,000/- (Rupees Thirty Lakhs only) became due for refund after a period of one year on 22-2-2014 alongwith interest @18% per annum. It has been asserted by the Applicant that he made it absolutely clear to the respondent that he was no longer interested in the Project because the respondent had violated the terms and conditions on the basis of which the amount was deposited by the Applicant. The aforesaid facts have been admitted on 1-9-2016 before the Investigating Off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 20-2-2017 passed in C.P. No. (IB)- 10(PB)/2017, titled as Col. Vinod Awasthy v. AMR Infrastructures Ltd. In the aforesaid case, we have taken the view on section 9 and section 5(20) (21), which is evident from the perusal of following paras: 7. A perusal of section 9 of the code would show that in order to maintain an application as an 'Operational Creditor' the Petitioner has to satisfy the requirements of section 5(20) and (21) of the Code. According to section 9(1) a petition like the one in hand could be maintained only by an 'Operational Creditor' against the 'Corporate Debtor'. The aforesaid expression has been defined in section 5(20) (21) which would also be attracted and applicable. Section 5(2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods, services, employment and Government dues. In the present case the debt has not arisen out of the provisions of goods or services. The debt has also not arisen out of employment or the dues which are payable under the statute to the Centre/State Government or local body. The refund sought to be recovered is necessarily associated with the delivery of the possession of immovable property which has been delayed. 9. The next question is whether the Petitioner could be regarded as an 'Operational Creditor' within the meaning of section 5(20). The 'Operational Creditors' are those persons to whom the 'Corporate Debt' is owed, and whose liability from the entity comes from a transaction on operations. The final ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
