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TMI Blog2020 (1) TMI 1268X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 on 10th of April 1996, admittedly is not for 'payment of money' - Further, in case the arguments of the FC i.e., the buildup residential area was to be given in lieu of services provided by the FC and its associates to the CD, then the application filed under Section 7 of the IBC 2016 is not maintainable, as this Authority cannot assume the jurisdiction of the executing court to direct the CD to deliver the possession of built-up total area of 39100 Sq. Ft. with proportionate super area to the Financial Creditor and its associates as claimed. Accordingly, the issued framed under Para 14 herein above, is decided agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 date of signing of the settlement. In that event, the CD and M/S. Dalmia promoters and Developers Pvt., Ltd., agreed to give further build up area of 1700 sq. ft., i.e., 8.50 sq. ft. each to the applicant and its associates for each completed year of 365 days, after the lapse of 3 years from the date of the settlement and the liability of 700 sq. ft. per annum would be for a maximum of 3 years after the expiry of first 3 years from the date of settlement and will cease thereafter. It was further stipulated that the applicant alongwith its associates woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 execution petition under No. 77/2008 before the District Court. The CD has filed an application in the said execution petition seeking to keep the execution proceedings in abeyance till the commencement of the construction, as the execution proceedings are premature. However, the District Court has rejected the application and CD has preferred an appeal before the Hon ble High Court of Delhi. The Hon'ble High Court vide its order dated 6 th of August 2019 passed in Ex. F.A. 32/2019 has stayed the execution proceedings by accepting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch 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 corporate debtor, as the case may be. The term 'financial debt is defined under sub clause (8) of Section 5 of the IBC 2016 as follows: financial debt means a debt along with interest, if any, which is disbursed against the consideration for the time value of money and includes- (a) money borrowed against the payment of interest; (b) any amount raised by acceptance under any acceptance credit facility or its dematerialised equivalent; (c) any amount raised pursuant to any note purchase facility or the is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 on 10th of April 1996, admittedly is not for 'payment of money'. Further, in case the arguments of the FC i.e., the buildup residential area was to be given in lieu of services provided by the FC and its associates to the CD, then the application filed under Section 7 of the IBC 2016 is not maintainable, as this Authority cannot assume the jurisdiction of the executing court to direct the CD to deliver the possession of built-up total area of 39100 Sq. Ft. with proportionate super area to the Fina ..... X X X X Extracts X X X X X X X X Extracts X X X X
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