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TMI Blog2020 (5) TMI 423X X X X Extracts X X X X X X X X Extracts X X X X ..... produce any document(s) in support of his claim which would make the Applicant even entitled in the category of other stakeholder Even if it is assumed for the time that the alleged letter dated 14-9-2018 of the Applicant is received by the Corporate Debtor, then even law does not cast a duty on the person to whom a proposal is made to reply to that proposal and hence acceptance cannot be inferred from the silence of the offeree and as a general rule, a proposal is not accepted by mere silence on the part of the offeree. The Applicant is claiming himself in the category of clause (f) of sub-section 8 of section 5 which speaks about any amount raised under any other transaction, including any forward sell or purchase agreement, having the commercial effect of borrowing - In the instant matter, the Applicant has failed to produce any documents/purchase agreement to substantiate his claim and/or show his bona fide as 'financial debt' so as to stand in the footing of Financial Creditor. The Applicant in the application pleaded that the amount is paid as earnest money. Basically, earnest money serves two purposes: it remains as security or earnest money for performan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Regulation-8 of the Insolvency and Bankruptcy Board of India (Insolvency Regulation Process of Corporate Person) Regulation, 2016. 2.3 The Applicant further submitted that the Respondent acknowledged the receipt of revised claim vide E-mail dated 6-7-2019. However, vide E-mail dated 19-7-2019, the Respondent No. 1 intimated the Applicant that they are unable to confirm/accept the claim of the Applicant citing the reason that the debt due from the Corporate Debtor is in the nature of interest free advance. Hence, it does not fall in the definition of financial claim as per Section 5(8)(f) of the Insolvency and Bankruptcy Code, 2016. 2.4 Learned Lawyer appearing on behalf of the Respondent is present and a copy of the said application has already been served upon them. He has fairly submitted that they do not wish to file any reply against the application as the claim of the Applicant has been considered in the category of other creditor. Accordingly, Form-F which is filed by the Applicant earlier has been accepted vide email dated 19-7-2019, as stated by the Respondent during the arguments. In view of that, nothing remained in the application, so filed by the Applicant. Hence, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a period of 12 months; and Formal Agreement to Sell in this regard will be entered into in consultation with the legal team of both the parties. 6. On perusal of the said conditions, primafacie, it reflects that it is based on certain condition. Only on the fulfilment of those conditions which are contingent in nature, the Applicant is agreeable for the purchase of land of Digjam Ltd. (Corporate Debtor). However, the Applicant has failed to show any acceptance letter from the side of the Corporate Debtor. That itself shows that, if any amount is transferred in the account of the Corporate Debtor, it will be a voluntary action from the side of the Applicant without any acceptance from the Corporate Debtor and/or without any fulfilment of the conditions, so offered by the Applicant. That shows that applicant has volunteered to take the risk, without any acceptance from the side of the Offence/Corporate Debtor. It is also pertinent to note that applicant has not filed any proof of service of the letter and/or proof of receipt by the Corporate Debtor. As per Section 4 of Contract Act, 1872 offer cannot be completed unless and until there is acceptance from the side of the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er any acceptance credit facility or its de-materialized equivalent; (c) any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument; (d) the amount of any liability in respect of any lease or hire purchase contract Which is deemed as a finance or capital lease under the Indian Accounting Standards or such other accounting standards as maybe prescribed; (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 commercial effect of a borrowing; [Explanation:- For the purpose of this sub-clause:- (i) any amount raised from an allottee under a real estate project shall be deemed to be an amount having the commercial effect of a borrowing; and (ii) the expressions, allottee and real estate project shall have the meanings respectively assigned to them in clauses (d) and (zn) of section 2 of the Real Estate (Regulation and Development) Act, 2016 (16 of 2016);] (g) any derivative transaction entered into in connection with protection against o ..... 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