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TMI Blog2022 (3) TMI 813X X X X Extracts X X X X X X X X Extracts X X X X ..... inancial Creditor in the case before us represent 10% of the total number of creditors in a class. There is nothing on record to show the total number of allottees in the housing project 'Morpheus Greens . It is a mandate of the law that Financial Creditor has to satisfy by filing an additional affidavit regarding the maintainability of the Application. Financial Creditor has not done so. The application is not maintainable under the Code - Application dismissed. - C. P. (IB) 2525 (PB)/2019 - - - Dated:- 7-3-2022 - R. Sudhakar, J. (President) And Avinash K. Srivastava, Member (T) For the Appellant : Nityanand Singh, Adv ORDER Avinash K. Srivastava, Member (T) 1. The present application has been preferred by Mr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate Debtor was not in a position to deliver the dwelling units/flats to Financial Creditor then they shall pay assured return of ₹ 2,00,000/- (Rs. Two Lakhs) per month to Financial Creditor for eleven months from the date of commencement of the MOU for delayed delivery of possession of dwelling units/flats. v. It is submitted by the Financial Creditor that in furtherance of the MoU dated 17.04.2015. The Corporate Debtor had issued assured return cheques of ₹ 2,00,000/- (Rs. Two Lakhs) each for eleven months starting from 05.05.2015 to 05.03.2016 as per Para 4 of MOU. It is submitted that last three cheques of assured return of ₹ 2,00,000/- each out of eleven cheques were not realized and an amount of ₹ 6,00,000/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ques given at the time of execution of MOU dated 17.03.2016 if Corporate Debtor failed to transfer the dwelling units/flats to the second party/Financial Creditor on 05.06.2016. In contrast to that, all the 10 cheques for a total sum of ₹ 1,00,00,000/- for payment were dishonoured and returned by banker to Financial Creditor with remarks Funds Insufficient , vide Return Memo dated 05.07.2016 Annexure A-9 (colly) x. Compelled by the circumstances, the Financial Creditor issued demand notice dated 02.08.2016 through their counsel U/s 138 of NI Act to the Corporate Debtor demanding the amount of Cheques and the same was duly served upon the Corporate Debtor. Copy of the demand notice dated 02.08.2016 has been annexed as Annexure A- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al of the Admission of CIRP, Financial Creditor's claim was not accepted and hence Financial Creditor filed this application on 30.09.2019. xiv. It has been argued by the Financial Creditor that the amount paid to the Corporate Debtor has a 'commercial effect of borrowing' and would be classified as financial debt under the provisions of the Code as Corporate Debtor has failed to refund back the monies advanced to the Corporate Debtor and also failed to pay the due assured return including the amount of interest accrued so far. Hence, the Corporate Debtor has committed default within the meaning of Section 3 (12) of the Code, 2016. 4. We have perused the averments, documents produced and the contentions raised by th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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