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TMI Blog2022 (11) TMI 1154X X X X Extracts X X X X X X X X Extracts X X X X ..... ok Srivastava, Member (Technical)] The present appeal is filed by the Appellant M/s. Sterling Paraphernelia Pvt. Ltd., who is aggrieved by the order dated 8.6.2022 passed by the Adjudicating Authority (National Company Law Tribunal, New Delhi) in IA No. 6052 of 2021 in CP (IB) 1744/ND/2019 (hereinafter called 'Impugned Order') under Section 61 of the Insolvency and Bankruptcy Code (hereinafter called 'IBC'). 2. The Appellant's case is that he had given a loan of Rs. 2 Crores to the Corporate Debtor M/s Bulland Buildtech Pvt. Ltd., which was disbursed through four demand drafts of Rs. 50 lakhs each at 2.40% rate of interest. He has further stated that when the Corporate Debtor could not pay back the amount when it became due, the Appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the RP in respect of his claim about the seven flats, he filed application IA No. 6052 of 2021 before the Adjudicating Authority, which was disposed of by the order dated 8.6.2022, and whereby the Appellant's application for considering it as homebuyer was not accepted. 5. We heard the arguments of the Learned Counsels of both the parties and perused the record. 6. The Learned Counsel for Appellant has submitted that the Corporate Debtor entered into an MoU dated 14.9.2015 whereby the Corporate Debtor pledged security for the loan granted by the Appellant in the form of four flats. He has submitted that the Appellant filed section 7 application as financial creditor against the Corporate Debtor after the matter between them was settled vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (erstwhile Syndicate Bank) has exclusive charge on all immovable assets including structures built thereon together with entire current and future receivables and the current assets from the project, but, since no flats have been constructed till date, therefore, there is question of any flat being mortgage to Canara Bank and moreover, no physical demarcation of the flats has been done till now. Therefore, future receivables of the flats cannot be equated with future assets of the Corporate Debtor. On this ground, the Appellant has claimed that the seven flats, which were allotted to him vide MoU dated 23.11.2019 by the Corporate Debtor, were free of all charge and therefore, the Appellant was clearly in the category of homebuyers and his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a perusal of the letter of Appellant and the Corporate Debtor also proves that the original nature of debt provided to the Corporate Debtor by the Appellant was a financial debt, even though the Appellant later decided to enter into an MOU dated 23.11.2019, which was unregistered, to change the nature of its debt. He has also stated that in the case of an allottee of a project the ledger entries are usually unidirectional i.e. monies flowing from allottee to the developer, whereas in the present case, the ledger entries are two directional which clearly suggests that the Appellant is financial creditor and not a financial creditor in class i.e. homebuyer. He has also submitted that a perusal of the ledger account maintained by the Corporat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgment goes on to say that a speculative investor cannot claim the same status and rights as homebuyers/allottees. 13. The basic issue in this appeal relates to whether the claim filed by the Appellant in Form-CA should be accepted in the CIRP of the Corporate Debtor. 14. We note, as admitted by the Appellant that he advanced a loan of Rs. two crores to the Corporate Debtor, which was disbursed through four demand drafts of Rs. 50 lakhs each between 6.11.2018 and 24.10.2019. When this unsecured loan was defaulted in repayment by the Corporate Debtor, the Appellant filed a section 7 application CP (IB) No. 73/ND/2019, which was disposed of as another section 7 application was admitted on 29.11.2019 against the Corporate Debtor. We also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the escrow account to be opened by the Corporate Debtor. We note that there was no deposit of any money in the said account with regard to the seven flats. We also note that definition of an 'allottee' as per section 2(d) of the Real Estate (Development and Regulation) Act, 2016 is as follows: "2. Definitions.-In this Act, unless the context otherwise requires,- xx xx xx xx (d) "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 leasehold) or otherwise transferred by the promoter, and includes the person who subsequently acquires the said allotment through sale, transfer or otherwise but does not include a person to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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