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TMI Blog2018 (4) TMI 1477X X X X Extracts X X X X X X X X Extracts X X X X ..... e provisions of Companies Act, 1956 having its registered office at B-100, Second Floor, Nariana Industrial Area, Phase -1, Delhi -110028. Since the registered office of the respondent corporate debtor is in Delhi, this Tribunal having territorial jurisdiction over the place is the Adjudicating Authority in relation to the prayer for initiation of Corporate Insolvency Resolution Process in respect of respondent corporate debtor under sub-section (1) of Section 60 of the Code. 3. It is the case of applicant that around early 2013 the respondent company launched a residential project by the name of "Earth Gracia" situated at the plot no. 12A-1, Greater Noida, Uttar Pradesh. Applicant for his personal residential requirement booked a 2 BHK flat bearing no. A-101 in the said project of the respondent company by the name of "Earth Gracia". Copy of Flat Booking Application Form has been placed on record. 4. It is stated that the applicant made payment of the first instalment of Rs. 4,41,400/- in April 2013, on the assurance that the project will be completed by 2015 and possession will be handed over by 2016. However, shortly thereafter, it was conveyed to the applicant that Tower-A, f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith proof of service and tracking record has been placed on record. 9. The respondent company has filed its reply, wherein it is mainly contended that in the present case there was no agreement between the parties for assured return or guaranteed return and respondent has never offered to the applicant any committed return or monthly return. Accordingly it is argued that the applicant is not a financial creditor and no financial debt is owed to the applicant by the respondent company and therefore the present application is not maintainable. 10. In addition respondent has contended that the contract in question is purely for sale and purchase of the immovable property and that the applicant itself has committed breach by not paying the entire sale consideration amount despite several reminders. 11. The other objection raised in the reply is on the allegation of forum shopping. It is contended that the agreement executed between the parties has arbitration and jurisdiction clause in which it is mentioned that any dispute between the parties shall be referred to the conciliation of consumer redressal forum of the CREDAI (NCR) and therefore the present application before the Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gly it is argued that the applicant is not a financial creditor and no financial debt is owed to the applicant by the respondent company and therefore the present application is not maintainable. 16. On the contrary applicant in its rejoinder has contended that the amount paid to respondent has been admitted and that the default committed qua the amount by respondent is also not in dispute. It is placed that there are documents in support of such disbursement, which has not been denied. It is argued that under Section 7 (4) of the Code, Adjudicating Authority is to ascertain only one factor i.e. default and no beyond. Applicants have also emphasised as to how thousands of home buyers are defrauded and harassed by builders. 17. Neither handing over of the possession nor refund of the investments of the home buyers, no doubt, causes great prejudice and hardship to them. It is, however, pertinent to note here that the Insolvency and Bankruptcy Code, 2016 is a complete Code in itself. The provisions of the Code are to be mandatorily followed. Tribunal cannot exercise the power as enshrined in Article 142 of the Constitution of India. Adherence to the requirements of Section 7 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... escribed; (e) receivables sold or discounted other than any receivables sold on non-recourse basis; (f) any amount raised under any other transaction, including any forward sale or purchase agreement, having the effect of a borrowing; (g) any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price and for calculating the value of any derivative transaction, only the market value of such transaction shall be taken into account; any counter-indemnity obligation in respect of a guarantee, indemnity, bond, documentary letter of credit or any other instrument issued by a bank or financial institution; the amount of any liability in respect of any of the guarantee or indemnity." 21. A creditor in order to come within the meaning of "Financial Creditor" has to fulfil the following essential criteria: i. A person to whom a 'financial debt' is owned and includes a person whom such debt has been legally assigned or transferred; ii. The debt along with interest, if any, is disbursed against the consideration for time value of money and includes any one or more mode of disbursed as mentioned in clause (a) to Clause ( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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