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Akshar Shanti Realtors Pvt. Ltd vs Amish Jaysukhlal Sanghrajka & Anr

National Company Law Appellate Tribunal22 April 2019

Ratio decidendi

The rule this decision rests on

The Adjudicating Authority's grant of liberty to an allottee of real estate, who is not an operational creditor, to file an application under Section 7 of the Insolvency and Bankruptcy Code, 2016 in terms of the Explanation below Section 5(8)(f), is not interfered with where no ground for interference is made out; the appeal is dismissed on that basis. The question whether the 2018 Amendment Ordinance inserting allottees as financial creditors applies retrospectively is left open, the Tribunal declining to decide it at that stage because it arises only if and when an application under Section 7 is admitted.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

NATIONAL COMPANY LAW APPELLATE TRIBUNALNEW DELHICompany Appeal (AT) (Insolvency) No. 357 of 2019IN THE MATTER OF:

M/s. Akshar Shanti Realtors Pvt. Ltd. ...Appellant

Versus

Amish Jaysukhlal Sanghrajka & Anr. ...Respondents

Present: For Appellant : Mr. Vivek Jain, Advocate

For Respondent :

ORDER

22.04.2019 The respondent filed an application u/s 9 of the 'Insolvency

and Bankruptcy Code, 2016 (for short, 'I&B Code') in the capacity of

'Operational Creditor'. The Adjudicating Authority (National Company Law

Tribunal), Mumbai Bench, Mumbai by impugned order dated 25th February,

2019 having noticed that the respondent do not come within the meaning of

'Operational Creditor' and is allottee of real estate allowed the respondent to file

application u/s 7 of the I&B Code in terms of the 'Explanation' below Section

5(8)(f) of the I&B Code.

2. Learned counsel for the appellant submits that the 'The Insolvency and

Bankruptcy Code (Amendment) Ordinance, 2018 inserting the 'allottees' as

'Financial Creditor' cannot be made applicable from retrospective date.

However, we are not inclined to deliberate on such issue at this stage as mere

liberty has been given to the respondent to file an application u/s 7 of the I&B

Code. If the application u/s 7 is admitted, the appellant raise the issue. -2-

3. No ground is made out to interfere with the impugned order. The appeal

is dismissed. No cost.

[Justice S.J. Mukhopadhaya] Chairperson

[ Justice A.I.S. Cheema ] Member (Judicial)

[ Kanthi Narahari ] Member (Technical)

/ns/gc

Company Appeal (AT) (Insolvency) No. 357 of 2019

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