9911796707
TMI Blog2020 (1) TMI 1268X X X X Extracts X X X X X X X X Extracts X X X X ..... . Heard the Counsels for the Financial Creditor and the Corporate Debtor, and perused the Application along with the records placed on the file. 3. The brief facts of the case are that the applicant and its associates entered into Memorandum of Understanding/ Collaboration agreement pertaining to the land followed by two other supplementary MOU dated 20.11.1989 and 22.11.1989. During the year 1992, some dispute arose between the parties and the applicant along with its associates filed a civil suit for specific performance with other relief against the corporate debtor, before the Hon'ble High Court of Delhi bearing CS (OS) No. 1744 of 1992. Based on an amicable settlement entered into between the parties, the civil suit was decreed on 10.4.1996, 4. As per the settlement filed before the Hon'ble High Court, the CD had agreed to develop a group-housing complex on plot of land admeasuring 22.95 acres. Out of this area, the applicant along with another was entitled to only 34,000 sq. ft. residential covered/ build up area along with proportionate super area. It was stipulated in the settlement that if the sanction of plans is not obtained within maximum period of 3 years from the da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd its associates for 39100 sq. ft. with proportionate super areas. The FC further stated that the default is continuing as the CD failed to give possession of the undivided admitted share of FC and its other co- allottes. 10. The FC has recorded in the application that by virtue of the decree passed in the civil suit on 10th of April 1996, and in consideration of services provided by the FC and its associates 34,000 sq. ft., of buildup residential area with proportionate super area in 48, Keventer, Sardar Patel Marg, New Delhi were admittedly sold to FC and its associates by the CD and the said transaction has the effect of raising an amount equivalent to the value of services provided by the applicant and its associates value at rupees 1 Cr in the civil suit which has the effect of borrowing in accordance with the terms of IBC,2016. Based on these submissions the applicant prayed to admit the application, initiate CIR process against the CD and appoint the IRP. 11. The CD has filed reply and admitted the fact pertaining to the consent decree passed by the Hon'ble High Court of Delhi on 10th of April 1996. The CD has contended that the FC along with its associates have filed exe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sary to refer to the relevant expressions i.e., "claim," "creditor," "debt," "default" and "financial debt" used given in the IBC 2016. Sub clauses (6), (10), (1 1), (12) of Section 3 of IBC 2016 define the terms "claim," "creditor," "debt, " "default" as follows: (6) "claim" means - (a) a right to payment, whether or not such right is reduced to judgment, fixed, disputed, undisputed, legal, equitable, secured, or unsecured; (b) right to remedy for breach of contract under any law for the time being in force, if such breach gives rise to a right to payment, whether or not such right is reduced to judgment, fixed, matured, unmatured, disputed, undisputed, secured or unsecured; (10) "creditor" means any person to whom a debt is owed and includes a financial creditor, an operational creditor, a secured creditor, an unsecured creditor and a decree-holder; (11) "debt" means a liability or obligation in respect of a claim which is due from any person and includes a financial debt and operational debt; (12) "default" means non-payment of debt when whole or any part or instalment of the amount of debt has become due and payable and is not 1 [paid] by the debtor or the cor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Thus, it has become clear that the Financial Debt refers to non- payment of money, which is due and payable and a default has occurred in paying the same. In connection with financial creditors falling in the category of home buyers, any amount raised from an allottee under a reat estate project shall be deemed to be an amount having the commercial effect of a borrowing. 17. The legal position stated above gives rise to another question i.e., whether any amount has been raised from FC and its associates by the CD under a real estate project? As can be inferred from the factual position recorded in the preceding paragraphs, the answer to this question is no. Thus, the claim of the FC as recorded under Para 8 of PART-IV of its Application i.e., "by virtue of the decree passed in the civil suit on 10th of April 1996, and in consideration of services provided by the FC and its associates, 34, 000 sq. ft., of buildup residential area with proportionate super area in 48, Keventer, Sardar Patel Marg, New Delhi were admittedly sold to FC and its associates by the CD and the said transaction has the effect of raising an amount," is misconceived; because the decree passed in the civil suit ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
