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TMI Blog2022 (9) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... tiate a proceeding in IB Code. There are no material to conclude that the Financial Creditors amount to minimum 10 percent. Accordingly, the Financial Creditors are not eligible to file a Petition before this forum. The present transaction was in pursuance of the sale agreement. There was no other agreement formed between the parties for amount claimed in default/amount transferred towards corpus fund, hence the given transaction of transfer of corpus funds into the loan account would not qualify as a financial debt as per the definition laid down in Section 5(8) - Applicant failed to qualify the threshold prescribed in the proviso laid down under section 7 (1). Therefore, this Petition is liable to be rejected. Petition dismissed. X X X X Extracts X X X X X X X X Extracts X X X X ..... huja Towers" had formed a co-operative society by the name "Ahuja Tower Co-Operative Housing Society Ltd" which was registered under Registration No. MUM/SRA/HSG/T.C/12692/2016 on 02.09.2016. 7. After the formation of the society, the committee member of the said society was demanding for payments of the corpus fund amount from the Financial Creditor for the said flat. Thereafter, the said society, issued an intimation notice on 19.07.2018 to the Corporate Debtor and copy of it to Financial Creditor inter alia stating that, an amount of Rs.1,09,22,500/- (Rupees One Crore Nine Lakhs Twenty-Two Thousands Five Hundred Only) is outstanding towards Corpus Fund payable by Financial Creditor for the said flat. Also, in the event of nonpayment of the said outstanding Corpus Fund amount before 31.07.2018, the said society, will proceed to recover the Corpus Fund amount with interest thereon @ 9% p.a. from the date of agreement for sale for the said flat and if the outstanding Corpus Fund amount was not received before the set date then the rate of interest thereon will increase upto 18% to 21% p.a. retrospectively. 8. The Financial Creditor submits that they were constrained to address a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usand Five Hundred Only) with an instruction to issue the cheque of said amount of Rs. 1,09,22,500/- (Rupees One Crore Nine Lakh Twenty-Two Thousand Five Hundred Only) in favor of "Shree Ahuja Properties & Realtors Pvt. Ltd-Corpus Fund A/C"). The copy of the said letter dated 27.09.2015 is annexed as Exhibit-A. 14. In accordance to the terms of the agreement for sale executed between respective flat purchasers and the Corporate Debtor, the Corporate Debtor is required to collect Corpus of Rs.1 Cr. and above (approx.) which differs between various flat purchasers and is ascertained according to the carpet area of the flats. The Corporate Debtor is required to submit the said Corpus amount collected from flat purchasers to the Society. 15. The Corporate Debtor has received Corpus fund from various flat purchasers, except for the Financial Creditors and few other flat purchasers. The amount receivable towards the corpus fund was deposited by the flat purchasers in the Cosmos Bank, Vile Parle branch in the Corpus Account of the Corporate Debtor. The Corporate Debtor has transferred the entire amount from the said corpus account of the Corporate Debtor to the Bank Account of the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Society by its letter dated 12.09.2018 to adjust the amount payable by the said Society to Corporate Debtor towards corpus fund of Flat No. B-44 and the said Flat of the Financial Creditors being Flat No. A-44. 19. The accounts were being reconciled between the Corporate Debtor and the said Society and in such situation, the said Society should not have raised the alleged demand notice dated 19.07.2018 to the Corporate Debtor. However, the Corporate Debtor by letter dated 12.09.2018 has informed the said Society to adjust the amount receivable from some flat purchaser towards corpus fund of Flat A-44 and said flat B-44 and thereby the Financial Creditors cannot demand the amounts claimed in this Application as alleged by the Financial Creditors and thereby this Application is not maintainable and liable to be dismissed. Findings: 20. We have heard the submissions of Applicant as well as the Corporate Debtor and perused the records. 21. As per the given facts in the present matter, it is clearly established that the Financial Creditors are the allottees under a real estate project and thus reference needs to be made to Section 7 of the Code. 22. The Applicant has failed to pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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