The Chandigarh Bench of the National Company Law Tribunal ( NCLT ) observed that the requirement of satisfying the minimum threshold will be applicable to any amount raised from allottee.
The present petition has been filed by Mr.Tek Chand Narula, ( “Applicant/Financial Creditor” ) under Section 7 of the Insolvency and Bankruptcy Code, 2016, seeking initiation of Corporate Insolvency Resolution Process against M/s Vatika Ltd, ( “Respondent/ Corporate Debtor” ).
After a continuous failure by the Corporate Debtor to remit the amounts, the Financial Creditor through his Counsel, sent a Legal Notice dated 28.08.2019 to the Corporate Debtor, demanding a sum of Rs.33,74,800/-, which was the due amount from October 2018 till end of July 2019 at that point of time, along with 18% interest within 15 days from the date of the said notice. Despite duly receiving the legal notice on 31.08.2019, the Corporate Debtor did not pay any heed towards the same and did not reply.
The counsel for the Corporate Debtor contended that during the pendency of the petition on 28.12.2019, the Central Government amended section 7 of the Insolvency and Bankruptcy Code, 2016 to include a provision that would provide for a threshold that has to be met for a petition to be admitted into CIRP at the behest of a real estate allottee, which provided minimum requirement for such initiation that of either 100 real estate allottees or in the alternative 10% of the total allottees of a particular project promulgated by the real estate developer.
The petitioner submitted that the Applicant is not before the Tribunal in the capacity of a homebuyer and nor is it a case of the Applicant, where he is claiming that he was promised an Apartment or Office, which has not been delivered, but the Applicant is seeking payment of the Assured return, which is due to him as per the agreed terms between the parties and thus the present Financial debt is clearly outside the purview of the judgment in the Manish Kumar case supra and that “debt in default” is the Assured return and not the principal amount of the units purchased.
A Two-Member Bench comprising Umesh Kumar Shukla, Member ( Technical ) and Dr. P.S.N. Prasad, Member ( Judicial ) observed that “We find that the present application was filed on 25.09.2019 i.e. before the coming of IBC Amendment Act of 2020 by which Section 7 was amended and a proviso was added which prescribes that for financial creditors, referred to in clauses (a) and (b) of sub-section (6A) of section 21 and for financial creditors who are allottees under a real estate project, an application for initiating corporate insolvency resolution process against the corporate debtor shall be filed jointly by not less than one hundred such creditors in the same class or not less than ten per cent of the total number of creditors in the same class, whichever is less.”
“Therefore, we are of the considered view that the applicant falls under the category of “Allottee” under a real estate project under section 5(8)(f) of IBC and thus, the instant application as filed by single allottee does not satisfy the necessary requirement under IBC” the Bench noted.
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