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TMI Blog2021 (4) TMI 1069X X X X Extracts X X X X X X X X Extracts X X X X ..... led on 17.09.2019, i.e. almost 6 years after the cause of action and default. In the instant case the Petitioner is before this Tribunal mainly to execute its decree and hence would not be eligible to file a Petition for execution of the decree received from the NCRC. We may add that if home buyers who obtain decrees from other fora also, such as from RERA, are permitted to file petitions under the IBC, that would defeat the purpose of the above referred amendment in section 7 of the Code laying down the threshold of 100 or 10% home buyers, whichever is less - Hence, as per the decision in the case of Sushil Ansal [ 2020 (8) TMI 396 - NATIONAL COMPANY LAW APPEALLATE TRIBUNAL, NEW DELHI ] while remedies are available to a home buyer elsewhere, as also under IBC (with the aforesaid threshold), once he receives a decree, the same cannot be brought for execution by invoking Section 7 of the IBC. We are also in agreement with the Respondent that since there is a Tripartite Agreement with the ICICI Bank Ltd. and the loan amount was disbursed by ICICI Bank Ltd., not only the cancellation can be done by the ICICI Bank but also the repayment can be done only to the ICICI Bank which would be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rporate Debtor entered into agreement for sale dated 05.09.2011 wherein, it was stated that the vendors are the absolute owners of the land situated at Survey Nos. 126, 127, 130, 131, 132, 133 Nanakramguda (V), Serilingampally (M), Ranga Reddy District, Gachibowli, Hyderabad and entered an agreement for sale to purchase an undivided right, title and interest in the land. Pursuant to the agreement for sale, simultaneously an agreement for construction dated 05.09.2011 was also executed between the Financial Creditors and Corporate Debtor wherein, the Corporate Debtor has formulated a scheme for development of commercial and residential constructions on the said land as stated in agreement for sale. (4) It is also stated that the Financial Creditors entered into a tripartite agreement with Mantri Developers Pvt. Ltd. (Corporate Debtor) and ICICI Bank Ltd. (banker) wherein, the Financial Creditor approached ICICI Bank Ltd. for a loan of ₹ 44,80,000/- and were sanctioned a loan vide offer letter dated 21.09.2011 towards the purchase consideration of the apartment in the project. The banker disbursed the loan upon demand being raised by Financial Creditors on the basis of demand l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t In regard to the present matter, we are surprised to receive the notice since Mr. Abhishek Anchila and Ms. Nupur Anchila have never approached us with their concerns and instead chosen to approach you directly. We have been interacting with all our customers and addressing their concerns and there has been no harassment on our part as alleged. We request you to kindly inform them to approach us for any grievance that they may have, to enable us to resolve the issues, if any, within the framework of the arrangement entered between the parties. Needless to say, we assure you of our full corporation. (9) Till date the Financial Creditors have not received the possession of the apartment while refund against the cancellation of the apartment, has also not been received. Meanwhile, a consumer complaint was also filed in April 2017 to crave for justice by the Financial Creditors, wherein the State Consumer Disputes Redressal Commission had passed an order dated 28.06.2019 (C.C. No. 69/2017) wherein, the Corporate Debtor has been directed to pay an amount of ₹ 49,24,359/- with interest @ 18% p.a. along with a cost of ₹ 5,000/- to the Financial Creditors within a period of 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has opted to approach this Court to arm twist the Respondent and to coerce and extract money from the Respondent of an amount which has not become due and payable. (3) It is also stated that the Petitioner has taken a loan from ICICI Bank and entered into a Tripartite Agreement with the ICICI Bank Ltd. and the loan amount is disbursed by ICICI Bank Ltd. The Petitioner has subrogated his rights in favour of ICICI Bank Ltd. Clause 'e' of the Tripartite MOU between the Respondent, Petitioner and ICICI bank stipulates that the Petitioner should not cancel the allotment without obtaining a NOC from ICICI bank which has not been done by the Petitioner. Further Clause 'g' of the Tripartite MOU stipulates that any amounts payable would be payable to ICICI bank, and not to the Petitioner. Keeping the above in view, the Petition filed herein without arraying ICICI Bank as a party is bad for non-joinder for proper and necessary Party; rights of Petitioner have been subrogated to ICICI Bank, and since amounts if payable are payable to ICICI Bank and not to the Petitioner, the Petitioner does not fall within the definition of a Financial Creditor. (4) As per the amendment of Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor' 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.' (2) The Petitioner has taken support from the decision of the Hon'ble NCLAT in Company Appeal (AT)(Insolvency) No. 984 of 2019 in the matter of Ugro Capital Ltd. Vs. Bangalore Dehydration and Drying Equipment Co. Pvt. Ltd. (BDDE). (3) Based on the decree of the court this Petition was filed U/s 7 of the Code. Since, the definition of word creditor in IBC includes decree holder, therefore if a petition is filed for realisation of decretal amount, then it cannot be dismissed on the ground that Applicant should have taken steps for filing execution case in civil court. The Petitioner herein is a decree holder and not a home buyer. 5. The Respondent has filed his Written Arguments on 10.03.2021, by inter contending that the Petitioners being a Decree Holder cannot approach NCLT by triggering Section 7 of the IBC. As the amount claimed in the decree is an adjudicated amount and not a debt. An adjudicated amount does not fall within the ambit of the definition of 'financial debt' U/s 5(8) of the IBC co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble NCLAT in a subsequent and recent decision in its order dated 14.08.2020 in the matter of Sushil Ansal Vs. Ashok Tripathi Ors. Company Appeal (AT) (Insolvency) No. 452 of 2020, where it held, after analysing the provisions of sections 5(7) and 5(8) of the Code, that a Decree Holder though covered under the definition of creditor under Section 3(10) of the Insolvency and Bankruptcy Code would not fall within the class of financial creditors and therefore, a decree holder cannot initiate a CIRP against a corporate debtor with an object to execute a decree. It cannot file an application U/s 7 of IBC as the amount claimed under a decree being an adjudicated amount was not a consideration for time value of money, and therefore, does not fall within the realm of Section 5(8) of the IBC. In giving this decision the Hon'ble NCLAT also considered its earlier decision in its order dated 07.02.2020 in the matter of G. Eswara Rao Vs. Stressed Assets Stabilization Fund Ors where also it had held that a Decree cannot be executed by filing an Application U/s 7 of the IBC. Both these decisions are subsequent to the decision in Ugro Capital cited by the Petitioner, which was not followed in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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