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TMI Blog2019 (8) TMI 1739X X X X Extracts X X X X X X X X Extracts X X X X ..... ghty Two Only). The default originally arose on 24.11.2016 and again on September, 2017, when the Corporate Debtor failed to make payment in terms of the payment schedule. 2. Brief facts of the case as mentioned in the Company Petition are as follows: a. M/S. Expat Projects Bangalore Holding Private Limited, (Respondent Company) was incorporated on 28.11.2007 bearing CIN No. U45200KA2007PPC044503. Its authorized nominal share capital is Rs. 10,00,00,000 (Rupees Ten Crore Only) and paid up share capital Rs. 5, 14,80,000 (Rupees Five Crore Fourteen Lakhs Eighty Thousand Only). The registered office of the Respondent Company is situated at 2nd Floor, Sobha Pearl, No. 1, Commissariat Road, Bangalore - 560025. b. The debt of the Corporate Debtor has arisen in terms of booking confirmation dated 10.04.2014 and the addendum dated 05.02.2015. The amount constituting the debt was paid by the Applicant to the Corporate Debtor towards the booking of a total of 56 apartments proposed to be developed by the Corporate Debtor. c. The Corporate Debtor has admittedly received a sum of Rs. 8,81,96,500 as on 17.08.2015 as evidenced from the consolidated receipt issued to the Corporate Debtor. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Development Pvt. Ltd. As executants. f. The Petitioner has not brought out before this Tribunal the details of the transactions as to how was the booking for the flats made and in whose names were the purchases made etc. Tha.t the number of flats alleged to be brought is 56 but in whose favour the same are bought is not disclosed and it is apprehended that the same is being purchased for benami purposes. g. The Petition is not maintainable since the Petitioner even for arguments sake, has paid money for purchase of flats, as alleged and thus does not fall within the definition of Operational Creditor under Insolvency and Bankruptcy Code, 2016. That the Applicant is not an "Operational Creditor" in purview of Section 5(20) of the Code. That in addition the amount due from the Respondent is not an operational debt as defined under Section 5(21) of the IBC. h. The Petitioner would not fall within the definition of home buyer since he has bought the flats on bulk and for commercial purposes and cannot be termed as home buyer buying a flat for his own use. i. The Petitioner claims to be an Operational Creditor by virtue of letters exchanged between him and Expat properties I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seal of Expat Projects & Development Pvt. Ltd., whereas the offer was for a project to be developed by a third company, which is the Corporate Debtor Expat Projects Bangalore Holding Pvt. Ltd. This is itself indicative of the conduct of the Corporate Debtor of avoiding its obligations. c. The issuance of booking note in the name of Maritime & Management Services Co. WLL, Bahrain was erroneous (and possibly malicious) as the amounts were paid by the Petitioner in his personal capacity and not the foreign entity of which he is the Promoter and Major Shareholder. The understanding was always that the booking was to be in the name of the Petitioner. d. The issue of the discrepancy/ inconsistency in documentation (fact that the booking was in the name of the Company as against the Petitioner) was brought up by the Petitioner with the Corporate Debtor in terms of the email dated 19.04.2016. e. The Corporate Debtor is denying the execution of the documents solely with the intention of escaping its liability. Further, if the Corporate Debtor has not executed the document herein, the Corporate Debtor would not have repaid the amount of Rs. 1,50,00,000/- as of 24.04.2017. f. The Pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al debt as on the date of filing the petition was Rs. 11,48,91,082 along with interest at 18% per annum being incurred since April 01, 2018. b. The project has admittedly not been launched till date, and resultantly, the Applicant gave the Corporate Debtor a notice of exit from the project on 24.10.2016 and a receipt has been acknowledged by the said Corporate Debtor. The Corporate Debtor does not dispute the fact that the project has not been launched and also does not dispute receipt of the notice of exit from the Applicant. As a result, the default is admitted by the Corporate Debtor. c. The Corporate Debtor has admitted execution of the letter in favour of Maritime and Management Services Co. WLL and has denied the execution of the letters in favour of the Applicant. However, the Corporate Debtor had not explained the various admissions of debt in favour of the Applicant and has also not explained the repayment of money in favour of the Petitioner in the face of this defense. Further, the Applicant has produced documents along with the rejoinder to demonstrate that issuance of the booking note in the name of Maritime and Management Services Co. WLL was erroneous as the amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion before a court under Section 33 of the Karnataka Stamp Act, 1957. h. Since, the Petitioner claims to be a flat buyer; RERA is an appropriate authority tor resolve the complaints in the real estate sector. 7. Heard Shri I.S. Devaiah and Ms. Bhargavi Dev K, learned counsel for Petitioner and Shri Uday Shankar R.M., Ms. Asmita Deshpande and Ms. Juhi Chandel learned Counsel for Corporate Debtor and also perused all the materials placed on record based. We have gone through the Company Petition and the submission made by both the parties and considered the extant provisions of law. 8. It is a settled position of law that the provisions of Code cannot be invoked for recovery of outstanding amount but it can be invoked to initiate CIRP for justified reasons as per the Code. The Hon 'b Supreme Court in the case of Mobilox Innovations Private Limited Vs. Kirusa Software Private Limited (2018) I SCC 353, has inter alia, held that IBC, 2016 is not intended to be substitute to a recovery forum. In another latest judgment rendered in Transmission Corporation of A.P.Ltd. Vs. Equipment Conductors and Cables Ltd., (CA No.9597 of2018) dated 23rd October, 2018, (2018) 147 CLA 1 12 (SC) S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hire purchase contract which is deemed as a finance or capital lease under the Indian Accounting Standards or such other accounting standards as may be 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 purposes 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)..." Further, the definitions of "allottee" and "real estate project" in clauses (d) and (zn) of section 2 of the Real Estate (Regulation and Development) Act, 2016 are produced herein below: "allottee" in relation to a real estate project, means the person to whom a plot, apartment or building, as the case may be, has been allotted, sold (whether as freehold or leas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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