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TMI Blog2021 (2) TMI 147X X X X Extracts X X X X X X X X Extracts X X X X ..... ith therein, went on to hold that a power of attorney holder is not competent to file an application on behalf of a financial creditor or operational creditor or corporate applicant - Therefore, the present petition filed by a power of attorney holder on behalf of the petitioner is not maintainable. We have considered the underlying nature of the transaction between the parties. The petitioner had offered her flat, which she was entitled to in the premises in question on account of redevelopment of the existing building, to the respondent. The respondent had paid what has been called earnest money to the petitioner. The present petition is for the remainder of the purchase price of the flat, apparently on the strength of an MoU dated March 2017 (we are unable to ascertain the exact date of the MoU from the petition). Prima facie, an MoU is a sort of agreement which will lead up to a formal agreement in due course. It is generally considered to be non-binding and legally non-enforceable, though exceptions would exist particularly in cases where a binding understanding can be inferred from its various clauses. Section 5(21) of the IBC defines an operational debt as a claim in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erational Creditor is as follows: - (a) The respondent had approached the petitioner herein for purchase of flat bearing No.59, 'C' Wing, Vellard View Premises Cooperative Society Limited [Society Share Certificate No.46], located at Tardeo Main Road, Haji Ali Circle, Mumbai 400034. M/s Prakash Co, solicitors, agreed to act as escrow holders in respect of the said transaction. The total sale consideration was fixed at ₹2.40 crore, which was to be paid on or before 30.10.2017 to the petitioner. (b) In discharge of the liability towards the transfer deed, the respondent issued cheque No.003517 dated 25.10.2017 for a sum of ₹2,13,84,000/-. On the due date, the respondent requested the petitioner not to deposit the cheque due to some financial constraints, and assured the petitioner that the cheque would be replaced. In furtherance of the same, the respondents issued a fresh cheque No.004074 dated 20.12.2017 for an amount of ₹1,14,84,000/- and another cheque No.004075 dated 15.01.2018 for an amount of ₹99,00,000/-. Like before, on the due dates, the respondent once again requested the petitioner not to deposit the cheque as the respondents would arrange ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely, in 2016, the old building was demolished; (b) Under an Agreement for Development dated 06.05.2012, the Society appointed the respondent/corporate debtor as developers for redevelopment of the property. Like other erstwhile occupants, the petitioner herein is also entitled to a new flat in the new building named as HBS View 360, by way of permanent alternative accommodation; (c) In March 2017, the petitioner approached the respondent herein and offered to sell the flat that she was entitled to in the new building, since she had already purchased a flat somewhere else by availing of a housing loan, and the petitioner was finding it difficult to pay the EMIs in the matter. Given the prevailing market conditions, the respondent initially refused to purchase the new flat. However, on the insistence of the petitioner, and on condition that the respondent may pay ten percent of the total consideration as earnest deposit immediately and the balance of the purchase price in instalments, and purely with a view to helping out the petitioner, the respondent agreed to purchase the new flat at a consideration of ₹2.40 crore. The agreement and understanding were that in the event the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The petitioner continues to have right, title and interest in the society, and also continues to receive rents from the respondent as part of the terms and conditions of redevelopment. 9. We have heard the arguments of both sides and perused the records. 10. We notice that the present petition has been filed by a power of attorney holder on behalf of the petitioner. In Palogix Infrastructure Private Limited v ICICI Bank Limited, [2017 SCC OnLine NCLAT 266 ] the Hon ble NCLAT, after noting the judgment of the Hon ble Supreme Court in Innoventive Industries Limited v ICICI Bank, [2017 SCC OnLine SC 1025 ] that the IBC was an Act to consolidate and amend the laws relating to reorganisation and insolvency resolution, and that it is settled law that a consolidating and amending act like the present Central enactment forms a code complete in itself, exhaustive of the matters dealt with therein, went on to hold that a power of attorney holder is not competent to file an application on behalf of a financial creditor or operational creditor or corporate applicant (para 38 of the judgment). 11. This judgment holds the field at present, and we are bound by it. Therefore, the present petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal debt as a claim in respect of the provision of goods or services, or a debt in respect of the payment of dues arising under any law for the time being in force and payable to the Central Government, any State Government or any local authority. In the present case, the underlying nature of the transaction is akin to that of a sale agreement. The present petition seeks to enforce the sale agreement as an operational debt. There is no supply of goods or service from the respondent to the petitioner, as a result of which a debt could be said to have arisen. Rather, it is the petitioner who is required to supply the good in the form of the new flat, to the respondent. Therefore, we hold that such a transaction is not covered within the meaning of section 5(21) of the IBC. This is more in the nature of specific performance of the transaction, which can, if necessary, be enforced in a civil court. This Adjudicating Authority cannot take upon itself the role of a civil court in enforcing specific performance of such contracts. 17. For the reasons stated above, the present petition fails and therefore, the same is rejected. 18. We make it clear that any observations made in this order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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