9911796707
TMI Blog2023 (2) TMI 1199X X X X Extracts X X X X X X X X Extracts X X X X ..... a Bank (Erstwhile Syndicate Bank)' filed an application under Section 7 of the I & B Code, 2016 (in short 'Code') against M/s Bulland Buildtech Pvt. Ltd. (Corporate Debtor) before the 'Adjudicating Authority' (National Company Law Tribunal, New Delhi Bench - II) which was registered as Company Petition (IB) No. 1744/ND/2019. This application was filed for the resolution of an amount of Rs. 32.88 crores. The Application was admitted on 22.03.2021, CIRP proceedings were initiated and moratorium was imposed. 2. After initiation of CIRP, public announcement was made by the RP on 26.03.2021 for inviting claims pursuant to which all the five Appellants herein who are stated to be the Home Buyers filed their respective claim application in Form C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h had ordered for refund by issuing RC amounting to Rs. 52,23,536.82 dated 27.01.2021. Based on the above, please note that we are not in a position to admit your claim as a homebuyer. Kindly resubmit your claim as a Financial Creditor in duly filled and signed Form C. A copy of the Form C is attached herewith for your reference. .. Debashis Nanda RP in the matter of Bulland Buildtech Pvt. LTd. IBBI Reg No., No. IBBI/IPA-003/IP-N00040/2017- 18/10316 Address: CS-14, Ansal Plaza, Vaisahali, Ghaziabad, 201010 5. After receipt of the aforesaid e-mail, the said Appellant filed the claim in Form C dated 27.10.2021 prescribed under Regulation 8 of the Regulations. Counsel for the Appellant has submitted that the RP did not r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ors of Class, we are unable to accept the submission of the applicants to direct the Resolution Professional to admit their claim in Form - CA." 8. Aggrieved from the order of the Tribunal dated 08.06.2022 all the five Applicants have preferred this appeal. 9. Counsel for the Appellant has vehemently argued that the Tribunal has committed a patent error in holding them as Financial Creditor on the ground that the Appellants had already obtained a decree from the UPRERA regarding refund of their amount. 10. He has argued that the status of the Appellant would remain the same as Homebuyers within a class and should not change even if there is a decree passed in their favour by the UPRERA. In support of his submissions, he has relied upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and not in a class of creditor for the purpose of putting up their claim as such before the RP. 12. It is further submitted that the Hon'ble Supreme Court in the same decision in the case of Kotak Mahindra (Supra) has decided that in case the Recovery Certificate is issued, the holder of the Recovery Certificate would be a Financial Creditor. He has referred to the Para 84 of the said decision which is reproduced as under :- "84. To conclude, we hold that a liability in respect of a claim arising out of a Recovery Certificate would be a "financial debt" within the meaning of clause (8) of Section 5 of the IBC. Consequently, the holder of the Recovery Certificate would be a financial creditor within the meaning of clause (7) of Section 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Plan and are now beyond their reach. 17. The question would thus arise as to whether after obtaining the decree for Recovery of amount infused at the instance of the Appellant for which Recovery Certificate has been issued, the Appellant would stand in the category of the class of creditor or is a Financial Creditor for the purpose of filing an application claiming it in Form C instead of Form CA. 18. In this regard, we are guided by the decision of the Hon'ble Supreme Court in the case of Kotak Mahindra (Supra) in which in Para 84, while concluding the discussion in the entire judgment, it has been held that once the Recovery Certificate has been issued, the party in possession of the Recovery Certificate is to be considered as a Financi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
