9911796707
TMI Blog2025 (3) TMI 129X X X X Extracts X X X X X X X X Extracts X X X X ..... ing services and the amount is payable to the vendors/nominated maintenance agencies. The services thus are to be provided by vendor or maintenance agencies. For being a financial debt within meaning of Section 5(8), the amount needs to be disbursed against the consideration of time value of money and includes thus disbursement for time value of money is a condition precedent for falling any transaction within a definition of financial debt.
Conclusion - The finding of the Adjudicating Authority holding that amount in question i.e., IFMS does not amount to financial debt, suffers from no infirmity.
Appeal dismissed. X X X X Extracts X X X X X X X X Extracts X X X X ..... ode'). It is submitted that as per Haryana Apartment Ownership Act, 1983, responsibility of keep and maintenance of the complex is cast upon the appellant and the financial debt is to be handed over to the appellant. The corporate debtor is not maintaining the project and project is being maintained by the appellant. Hence, the amount which was collected by the corporate debtor towards IFMS was required to be handed over to the appellant for which a demand notice was rightly issued by the appellant. It is submitted that Adjudicating Authority committed an error in rejecting Section 7 application. Judgment relied in the impugned order of Coordinate Bench in the matter of 'Vipul Green Residence Welfare Association' Vs. 'Vipul Limited' is distinguishable. 5. We have considered the submissions of counsel for the appellant and perused the record. 6. From the facts as pleaded in the appeal, it is clear that present is a case where Conveyance Deed has already been executed in favour of the unitholders and the appellant has demanded the amount of IFMS from the corporate debtor, which was to be deposited as per Clause 26 of the Conveyance Deed by the allottees towards maintenance of commo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly described in the Maintenance Agreement in the standard format of the Vendor, at the time of taking possession of the Said Unit and/or as and when so desired by the Vendor. 27. That the Maintenance Charges shall be payable by the Vendee(s)/Occupiers to the Vendor/nominated Maintenance Agency with effect from the date of offer of possession. The maintenance charges shall be fixed by the Vendor/ nominated Maintenance Agency taking into consideration various inputs/ overheads/charges etc, in its sole discretion. The determination of monthly maintenance charges by the Vendor/ nominated Maintenance Agency shall be final and binding on the Vendee(s). Any tax payable on Maintenance Charges shall also be payable by the Vendee(s)." 8. The Hon'ble Supreme Court in 'Global Credit Capital Limited & Anr.' Vs. 'Sach Marketing Pvt. Ltd. & Anr.' reported in 2024 SCC OnLine SC 649, has laid down that for finding out the character of the debt, nature of the transaction entered between the parties has to be captured and find out and it is only after determining the real nature of transaction, issue can be answered as to whether there is a financial debt or not. 9. When we look into Clauses 26 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d never disbursed or deposited against consideration of time value of money. The appellant claimed that the security deposit is a financial debt. In the above context, this Tribunal had occasion to consider the above appeal. This Tribunal noticed the essential elements for proving a financial debt. In paragraph 17 of the judgment following was observed: "17. The essential elements of financial debt in the context of Section 5(8) of IBC is inclusive of debt alongwith interest which disbursal must be against consideration for time value of money and also includes anything which is equivalent to the money that has been loaned as long as commercial effect of borrowing or profit is discernible. It is a well settled proposition of law as laid down by the Hon'ble Apex Court in Pioneer Urban Land and Infrastructure Ltd. v. Union of India (2019) 8 SCC 416 that any debt to be treated as financial debt, there must happen disbursal of money to the borrower for utilization by the borrower and that the disbursal must be against consideration for time value of money. In the matter of Anuj Jain, Interim Resolution Professional for Jaypee Infratech Ltd. v. Axis Bank Limited & Ors. (2020) 8 SCC 40 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IBC pertaining to financial debt was therefore not satisfied. Clearly therefore, the present transaction was not disbursement for time value of money and does not fall within the canvas of financial debt as defined under Section 5(8) of the IBC." 12. This Tribunal also considered the question as to whether the amount claimed by the appellant fell into the category of operational debt. The said security deposit was held to be deposit advance for use of lease premises and was held to be covered in the provision of services and therefore fell in the purview of operational debt. Following was laid down in paragraph 21: "21. From a plain reading of the above definition of "operational debt", it is clear that it must relate to a claim which is confined to either of the four categories viz. provision of goods, services, employment and Government dues. It may be pertinent to add here that the expression "services" has not been defined in the IBC and has to be interpreted in a broad and purposive manner. The sum of Security Deposit made in the facts of the present case which was given in the form of advance by the Appellant to the Corporate Debtor for prospective occupation of the leas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... areas and facilities shall remain undivided and no apartment owner or any other person shall bring any action for partition or division or any part thereof unless the property has been removed from the provisions of this Act as provided in sections 14 and 22. Any covenant to the contrary shall be null and void. (4) Each apartment owner may use the common areas and facilities in accordance with the purpose for which they are intended without hindering or encroaching upon the lawful rights of the other apartment owners. (5) The necessary work of maintenance, repair and replacement of the common areas and facilities and the making of any addition of improvements thereto shall be carried out as provided herein and m the bye-laws. (6) The association of apartment owners shall have the irrevocable right, to be exercised by the Manager or Board of Managers thereof, to have access to each apartment from time to time during reasonable hours as may be necessary for the maintenance, repair and replacement of any of the common areas and facilities therein or accessible therefrom or for making emergency repairs therein necessary to prevent damage to the common areas and facilities or t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
