M/S Kaveri Sahakri Awas Samiti Ltd vs Sanjay Gupta

IN THE MATTER OF: Kaveri Sahakri Awas Samiti Ltd. ....Appellant

Vs.

Sanjay Gupta ....Respondents Interim Resolution Professional Horizon Buildcon Pvt. Ltd. and Ors.

Present: For Appellant: Mr. Sadhur Aaryaan Sadanand, Mr. Abhay Pratap Singh, Advocates. For Respondents: Mr. Abhishek Anand, Mr. Mohak Sharma, Mr. Sajal Jain, Advocates

ORDER

10.04.2023: Heard Learned Counsel for the parties. This appeal has been

filed against the order dated 25.05.2022 passed by the Adjudicating Authority

(National Company Law Tribunal, New Delhi Bench-II) in IA No. 1577 of 2020

in Company Petition No. IB-266/ND/2019 by which the application under

Section 60 (5) (C) of IBC, 2016 seeking direction to the Resolution Professional

to treat the appellant as a Financial Creditor has been rejected. The Appellant

claiming to be owner of the land has entered into Collaboration Agreement

dated 28.08.2012 with the developer M/s Horizon Buildcon Pvt. Ltd. The copy

of the agreement has been filed as Annexure-A2. In the CIRP proceedings of the

Corporate Debtor - M/s Horizon Buildcon Pvt. Ltd., a claim was filed by the

appellant as a Financial Creditor. The Resolution Professional accepted the

Cont'd.../ -2-

claim as Operational Creditor. Challenging the said decision an I.A was filed,

which has been rejected.

2. Learned Counsel for the Appellant submits that although there is no

disbursement by the Appellant to the Corporate Debtor but nature of

transaction need to be treated as Financial debt.

3. Learned Counsel for the Respondent submits that the issue has already

been answered by this Tribunal in Company Appeal (AT) (Ins.) No. 821 of 2021

in Namdeo Ramchandra Patil Vs. Vishal Ghisulal Jain where it was held that in

similar facts of transaction, the land owner's claim cannot be accepted as a

financial debt.

4. We have considered the submissions of the parties and perused the

records.

5. The Collaboration Agreement which has been brought on the record

contains a clause 2 which provides as follows:

"2. That the Developer shall undertake the design, planning, construction and development of the Said Land at its own cost and expenses and with its own resources; but all the requisite Licenses / CLU/ NOCs, permissions, sanctions and approvals of all Competent Authorities like PUDA, MCA, Avas Vikas Parishad, NOIDA Development authority, Revenue Authorities etc., shall be provided by the OWNERS and thereafter the DEVELOPER will construct the said Complex on the said Land as sanctioned by the competent Authorities and market the 64% share of the Developer as well as of the 36% share of the Owner share with his consent."

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6. When both the developer and the appellant have specified share as per

the clause and there is no incident of any disbursal for time value of money,

the Adjudicating Authority has rightly come to the conclusion that there is no

financial debt within the meaning of Section 5 sub Section 8 of the Code.

7. Learned Counsel for the Appellant sought to raise certain submission

with regard to admission of his claim as Operational Creditor but in the

present appeal we are only concerned with the question as to whether the

appellant can be treated as a Financial Creditor or not, which as observed

above having rightly been decided by the Adjudicating Authority that the

appellant is not a Financial Creditor, we see no reason to entertain any other

submissions.

8. The Judgment of this Tribunal in Namdeo Ramchandra Patil Vs. Vishal

Ghisulal Jain do support the submission raised by Learned Counsel for the

Respondent. We, thus, do not find any error in the order, Appeal is dismissed.

[Justice Ashok Bhushan] Chairperson

[Mr. Barun Mitra] Member (Technical)

sa/nn

Company Appeal (AT) (Ins.) No. 949 of 2022