The National Company Law Tribunal, New Delhi bench held that investment claim cannot be considered as ‘operational debt’ and the applicant is not an ‘operational creditor’ under section 9 of the insolvency and bankruptcy code.
The Tribunal Bench comprising of Judicial member Ina Malhotra and Technical member S.K Mohapatra held so while hearing the appeal filed by Mr. Sanjeev Jain.
It is the case of applicant that the corporate debtor ‘Eternity Infracon Pvt. Ltd, a company incorporated under the provision of the Companies Act, 1956, in November, 2013 proposed to the applicant to invest an amount of Rs. 18, 00,000/-(approximately) for the under construction property namely “The Crescent”(IT/ITES/Commercial Project)at Greater Noida(UP).In the aforesaid investment corporate debtor proposed to book a commercial space for the applicant and promised him for future sale with an escalated price.
In return applicant invested an amount of Rs.17, 47,955/- through cheque. However the corporate debtor couldn’t make any commitment to that. Instead corporate debtor asked for another investment of 25, 00,000/-from the applicant for the aforesaid project and pretext that the initial amount will refund shortly.
Later a cheque had given to the creditor and became dishonored with remarks of “Insufficient fund”. Applicant through its council sent a demand notice under section8 of Insolvency and bankruptcy code to repay the principal amount plus interest.
Corpate debtor failed to meet his obligation. As a result of this an Application of corporate insolvency process filed by operational creditor, who claims to have not received the unpaid operational debt deals with the section 9 of the code.
Later court had questioned that the applicant could be regarded as an ‘operational creditor’ within the meaning of section 5(20) that in his present case has invested money neither supplied goods or rendered any service etc. as defined in section 5(21) and his claim doesn’t fall in the purview of operational debt.so he cannot acquire the status of an’ operational creditor’.
Therefore the court had dismissed the applicant’s petition that he doesn’t belong to the purview of operational creditor and he doesn’t owe the operational debt under section 9 of insolvency and bankruptcy code.
Read the full text of the Order below.
