Satish Mittal vs Ozone Builders & Developers Pvt. Ltd

Satish Mittal .. .Appellant

Vs.

Ozone Builders & Developers Pvt. Ltd. ... Respondent

Present: For Appellant:- Shri Rishi Sood, Advocate

For Respondent:- Shri Abhishek, Advocate

ORDER

13.07.2017 This appeal has been preferred by the appellant

against the order dated 24th April, 2017, passed by Ld. Adjudicating

Authority (National Company Law Tribunal), (hereinafter referred to as

the 'Tribunal") Principal Bench, New Delhi, whereby and whereunder

application preferred by the appellant under section 9 of Insolvency and

Bankruptcy Code, 2016 (hereinafter referred to as I&B Code 2016) has

been rejected on the ground that the appellant is not an 'Operational

Creditor' as defined under sub section (20) read with sub-section (21) of

Section 5 of the I&B Code 2016.

2. Ld. Counsel appearing on behalf of appellant submits that

appellant deposited a sum of Rs.30 lacs with Respondent/ Corporate

Debtor for booking a plot in Ozone City, Aligarh. The receipt was granted

on 22nd February 2013 (vide Annexure 5-13) wherein it is mentioned that

in case of non-confirmation of booking within one year, the amount will

be refunded without interest. It is contended that the amount of booking

has not been confirmed within one year as the respondent failed to refund -2-

the amount and there being default of debt the application under section

9 of MB Code, 2016 was maintainable.

3. We have heard Ld. Counsel for the appellant and perused the

record. There is nothing on the record to suggest that the appellant

reached any agreement with the respondent/ corporate debtor for

purchase of a plot in Ozone City, Aligarh. A receipt has been enclosed

which shows that an amount of Rs.30 lacs was deposited in advance in

cash on 22nd February 2013 for booking of plot in 'Ozone City', Aligarh

and in case of non-confirmation of booking within one year the amount

is required to be refunded without interest.

4. Sub-section (20) of section 5 defines 'Operational Creditor' as

follows:

"operational creditor" means a person to whom an operational

debt is owed and includes any person to whom such debt has been

legally assigned or transferred"

5. Sub-section (2 1) of Section 5 defines 'Operational Debt' which

reads as follows:

"operational debt" means a claim in respect of the provision of

goods or services including employment or a debt in respect of the

repayment of dues arising under any law for the time being in force

and payable to the Central Government, any State Government or

any local authority"

-3-

6. Admittedly, the appellant has not made any claim in respect of

goods. The appellant has also not rendered any services for which he is

entitled to claim any amount. It is not the case of the appellant that he

was in employment or a debt in respect of repayment of dues arising

under any law is due to him. As the dues to which the appellant claim

does not arise under any law for the time being in force and merely based

on the receipt, we find no ground to interfere with the impugned order of

rejection of application under section 9 in absence of any merit.

The appeal is dismissed. No cost.

(Justice S.J. Mukhopadhaya) Chairperson

(Balvinder Singh) Member(Technical) ar