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TMI Blog2020 (10) TMI 1302X X X X Extracts X X X X X X X X Extracts X X X X ..... 5(21) of the IBC comes under the definition of Operational Debt. The case of the Petitioner is based upon the Settlement Agreement and, the Petitioner herself admits this fact that the Petitioner is no longer a unit buyer as the unit stands withdrawn by issuance of the refund cheques, therefore, in the light of that fact, which the Petitioner has mentioned in her application, when we shall consider the definition of Financial Debt as defined under Section 5 (8) of the IBC, 2016 then it can be said that any amount raised from the Allottee under a Real Estate Project shall be deemed to be an amount having the commercial affect of a borrowing. Since the Applicant herself admits this fact that she is no longer Allottee, therefore, the amount, which the Applicant has invested does not come under the definition of Section 5 (8)(f) of the IBC, 2016, and if the amount invested by the Petitioner does not come under the definition of Financial Debt then the Petitioner cannot be treated as a Financial Creditor under Section 5 (7) of IBC, 2016. Whether the applicant claims herself a Financial Creditor under Section 5(8) on the basis of a Settlement Agreement or not? - HELD THAT:- It is the set ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e invested amount and gave refund cheques dated 20.07.2019 for an amount of ₹ 1,00,00,000/- and also issued various cheques from time to time for assured returns however, neither paid the assured returns nor the invested amounts and the cheques either got is honoured or were replaced with fresh cheques which got dishonoured. The sum and substance is that the Financial Creditor only got cheques from time to time and no cheque was ever honoured. Certain due amount is not covered by cheques but is admittedly due. iv. The Corporate Debtor has failed to make payment of the assured returns at 24% per annum from the date of execution of the agreement till date, hence the Corporate Debtor is liable to pay Compound Interest at 24% per annum on the assured returns at 24% per annum to the Financial Creditor and refund of the investment amount with interest at 24% to the Financial Creditor. v. That the Financial Creditor is no longer a Unit Buyer as the unit stands withdrawn by issuance of refund cheques. vi. That upon the dishonour of cheques, the Financial Creditor had tried to contact the Corporate Debtor several times about the fate of the above referred cheques but the Corpora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice may be issued against the Respondent. 7. Now, in the light of the submissions raised on behalf of the petitioner, we would like to consider whether the amount, which the petitioner claimed as a defaulted amount comes under the definition of Financial Debt or not? 8. At this juncture, we would like to refer Section 5(8) of the IBC and the same is quoted below: - 5(8) "financial debt" means a debt alongwith 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 de-materialised equivalent; (c) any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument; (d) the amount of any liability in respect of any lease or 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 nonrecourse basis; (f) any amount raised under any other tran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, when we shall consider the case in hand then we find that the case of the Petitioner is based upon the Settlement Agreement and we further noticed that at page 9 in Part-4(vi), the Petitioner herself admits this fact that the Petitioner is no longer a unit buyer as the unit stands withdrawn by issuance of the refund cheques, therefore, in the light of that fact, which the Petitioner has mentioned in her application, when we shall consider the definition of Financial Debt as defined under Section 5 (8) of the IBC, 2016 then it can be said that any amount raised from the Allottee under a Real Estate Project shall be deemed to be an amount having the commercial affect of a borrowing. Since the Applicant herself admits this fact that she is no longer Allottee, therefore, in our considered view, the amount, which the Applicant has invested does not come under the definition of Section 5 (8)(f) of the IBC, 2016, and if the amount invested by the Petitioner does not come under the definition of Financial Debt then the Petitioner cannot be treated as a Financial Creditor under Section 5 (7) of IBC, 2016. 13. Now the question is whether the applicant claims herself a Financial Creditor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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