Sumit Bansal vs Rajeev Lochan Resolution Professional ...
- CitationCompany Appeal (AT) (Ins) No.858 of 2025
Ratio decidendi
The rule this decision rests on
The appellants' status as financial creditors under Section 5(7) and 5(8)(f) of the Code must be assessed against the subsisting character of the liability: a "debt" under Section 3(11) is a liability or obligation presently due from the corporate debtor, and a sum already refunded and discharged, through a cheque honoured or presented for encashment, is no longer such a liability, so that a claimant whose claim has been satisfied cannot be declared a financial creditor on that basis. A party who, by invoking the arbitration clause of an agreement for sale and claiming refund of the consideration, and by pursuing proceedings under Section 138 of the Negotiable Instruments Act over a dishonoured refund cheque, has affirmed that the amount is to be repaid to it, cannot simultaneously maintain that it continues to hold the status of an allottee whose money is owed as a financial debt; by its own conduct it has elected the refund route and cannot sail in two boats. The decision of the Supreme Court in Vishal Chelani v. Debashis Nanda, which held that allottees who are decree-holders under RERA may not be treated differently from other home buyers, does not assist a claimant whose case is that it is not an allottee with a continuing debt but a refund claimant; the principle of that decision concerns classification within the class of allottees and does not extend the class to a person whose claim is discharged or whose conduct has renounced its allottee status.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
(Arising out of Order dated 13.05.2025 passed by the Adjudicating Authority (National Company Law Tribunal, Principal Bench in IA/2471/2024 connected in CP (IBPP) No.01/PB/2023)
IN THE MATTER OF Mr. Sumit Bansal ...Appellant Son of Late K.L. Bansal R/o 131, Pocket G-4, Sector-11, Rohini, Delhi-110085
Versus
Mr. Rajeev Lochan, ...Respondent Resolution Professional M/s RG Residency Pvt. Ltd. Registration No. IBBI/IPA-002/IP-N00606/2018-19/11885 1st Floor, AGCR Enclave, Delhi-110092 with Company Appeal (AT) (Ins) No.873 of 2025 (Arising out of Order dated 13.05.2025 passed by the Adjudicating Authority (National Company Law Tribunal, Principal Bench in IA/2432/2024 connected in CP (IBPP) No.01/PB/2023)
IN THE MATTER OF Ms. Monica Bansal W/o Mr. Sumit Bansal ...Appellant R/o 131, Pocket G-4, Sector-11, Rohini, Delhi-110085
Versus
Mr. Rajeev Lochan, ...Respondent Resolution Professional M/s RG Residency Pvt. Ltd. Registration No. IBBI/IPA-002/IP-N00606/2018-19/11885 1st Floor, AGCR Enclave, Delhi-110092 2
With Company Appeal (AT) (Ins) No.874 of 2025 (Arising out of Order dated 13.05.2025 passed by the Adjudicating Authority (National Company Law Tribunal, Principal Bench in IA/2465/2024 connected in CP (IBPP) No.01/PB/2023)
IN THE MATTER OF Ms. Parul Bansal ...Appellant W/o Sunit Bansal R/o 704, Block D-5, Sandeep Vihar, Sector-20, Panchkula, Haryana Through her SPA Holder Mr. Sumit Bansal
Versus
Mr. Rajeev Lochan, ...Respondent Resolution Professional M/s RG Residency Pvt. Ltd. Registration No. IBBI/IPA-002/IP-N00606/2018-19/11885 1st Floor, AGCR Enclave, Delhi-110092 with Company Appeal (AT) (Ins) No.875 of 2025 (Arising out of Order dated 13.05.2025 passed by the Adjudicating Authority (National Company Law Tribunal, Principal Bench in IA/2527/2024 connected in CP (IBPP) No.01/PB/2023)
IN THE MATTER OF Sumit Bansal ...Appellant Legal Heir (LR) of late Prem Bansal S/o late K.L. Bansal R/o 131, Pocket G-4, Sector-11, Rohini, Delhi-110085
Versus
Mr. Rajeev Lochan, ...Respondent Resolution Professional M/s RG Residency Pvt. Ltd. Registration No. IBBI/IPA-002/IP-N00606/2018-19/11885 1st Floor, AGCR Enclave, Delhi-110092 with 3
Company Appeal (AT) (Ins) No.821 of 2025 (Arising out of Order dated 13.05.2025 passed by the Adjudicating Authority (National Company Law Tribunal, Principal Bench in IA/2471/2024 connected in CP (IBPP) No.01/PB/2023)
IN THE MATTER OF Mr. Sumit Bansal ...Appellant Son of Late K.L. Bansal R/o 131, Pocket G-4, Sector-11, Rohini, Delhi-110085
Versus
Mr. Rajeev Lochan, ...Respondent Resolution Professional M/s RG Residency Pvt. Ltd. Registration No. IBBI/IPA-002/IP-N00606/2018-19/11885 1st Floor, AGCR Enclave, Delhi-110092
Present: For Appellant : Mr. Namit Suri and Mr. Ravi, Advocates For Respondent : Mr. Saurabh Jain and Mr. Prayag Jain, Advocates for R-1 Mr. Kumar Anurag Singh, Mr. Zain A. Khan and Mr. Mohd. Abran Khan, Advocates for RP
JUDGEMENT
Per Justice Sharad Kumar Sharma, Member (Judicial)
1. These are set of five Company Appeals, which involve consideration of
common question of fact and law, pertaining to the adjudication of the claim of
the appellants for seeking themselves to be declared as to be a "financial
creditor", in the light of the provisions contained under Section 5(8)(f) of the
Code. For the purposes of brevity they are being decided together. 4
2. The appellants have respectively challenged the Impugned Order dated
13.05.2025 that, was passed in I.A. 2471 of 2024, which was preferred in CP
(IBPP) No. 01/PB/2023.
3. The case of the appellant had been that the respondent - Corporate Debtor
is said to have floated a project under the name and style of "RG Regency Pvt.
Ltd.", and the appellants of these company appeals claim themselves that, they
are the purchasers of the flats, as it is under consideration herein in relation
to flat No.B-1603, B-2601, B-2602 and H-2406, which was measuring about
6599 sq. ft. claimed to have been conveyed, to them for the total consideration
of Rs.1,35,00,000/-. The appellant's contention is that as the consequence of
the aforesaid offer for purchase of the aforesaid flats, the appellant allege that,
they have paid the full and final payment of the said consideration and in
pursuance to which, an agreement for sale, too was said to have been executed
on 24th November, 2015 between the appellant and the corporate debtor and in
continuation thereof, it is claimed by the appellant i.e. the home buyers, that No
Dues Certificate towards the payment and the receipt in lieu thereof was also
issued by the corporate debtor in their favour.
4. The claim of the appellants in the pleading that, was raised before the
learned Tribunal, was to the effect that, as a consequence of execution of
agreement for sale on 24th November, 2015, the corporate debtor, has also given
a symbolic possession of the booked flats, along with some value appreciation
cheques to the appellant with an assurance that, the corporate debtor would be
completing the project and would be delivering the possession of the property
latest by 30th September, 2018. In view of the conditions mentioned for 5
furnishing of appreciation cheques, the appellants contend that, they have
handed over the appreciation cheques to the respondent on 31st March, 2019;
but because of the fact, the corporate debtor had informed the appellant vide its
e-mail communication of 26th April, 2024 that, because of the information as it
was supplied by the corporate debtor, they have never received the status of the
claim from the corporate debtor for the respective amount, which they have said
to have been deposited.
5. The appellants' case had been that they have filed an objection to the
admission of the claim but that, was not aptly responded by the corporate debtor
and due to which, the appellants were constraint to invoke an arbitration clause
and initiate arbitration proceedings by filing an arbitration case, as per the
Common Condiments Clause 10, of the agreement for sale deed dated
24.11.2015.
6. While the proceeding of the company petition were being carried, the
appellant on 02.05.2024 are said to have filed an application, bearing I.A.
No.2471 of 2024 contending thereof that an appropriate directions may be
issued to the respondent to admit the full amount of claim of the appellant to
the tune as referred to in the relief clause of the respective I.A. preferred by the
appellant. More importantly, a direction was also sought to the respondent to
recognise the appellants, as a financial creditor. Primarily the controversy herein
in these five company appeals are as to whether at all, under the given set of
circumstances, the appellant could have been accorded the status of the
financial creditor, as contemplated under Section 5(8)(f) of the I&B Code. The
contention of the appellant had been that, the learned Adjudicating Authority by 6
the impugned Order had upheld the validity of agreement to sale dated
24.11.2015, which was said to have been executed between the appellant and
the corporate debtor and had directed the remittance of the amount of
Rs.1,35,00,000/- too, but had simultaneously declined to recognize the
appellant and accord them the status of, being the financial creditor in terms of
the Explanation to Section 5(8)(f) of the Code.
7. The facts, which had been brought on record would involve the
interpretation of the contents of the agreement for sale that, was executed inter
se between the parties on 24.11.2015. If we go through the contents of the
agreement for sale, what could be seen is that the said agreement for sale is an
unregistered document, in relation to an immovable property, and it has a
reference that, the entire amount has been remitted and no dues were left to be
paid, but simultaneously and rather peculiarly in itself, it contained a Clause
7(d) pertaining to the confirmation to give an appreciation to the second party of
the said agreement by giving an appreciation cheque relevant Clause 7(d) is
extracted hereunder:-
"7(d) That, The First Party has also Confirmed to give
appreciation to Second Party in the said Unit, The First Party
is giving appreciation Cheque for the said unit. The details of
Cheques are as follows:
Date Cheque No. Amount In favour of
30-09-2018 969845 9,11,250/- Sumit Bansal
" 7
Further, the agreement for sale as it was witnessed by the parties also contains
Clause 10, which prescribes for that, in case of any dispute inter se between the
parties, they would be at liberty to invoke an arbitration proceeding. Clause 10
of the agreement for sale is extracted herein under:
"10. (repeated number) That if there shall be any difference or disputes between the parties or any matter arising hereunder, the same shall be referred to only one arbitrator, who shall be appointed by the Second Party Only. The award given by so appointed arbitrator shall be final and binding on all the parties. The arbitration under this clause shall be deemed to be arbitration under the Arbitration and Conciliation Act, 2015 or any other statutory modification thereof. The courts of Delhi / New Delhi shall abide by the award given by the arbitrator. All expenses of arbitration including arbitrator fees etc. shall be borne by the first party only."
8. It is not in controversy that on account of the alleged breaches, which the
appellant contends to level against the respondent, the appellants had already
invoked the arbitration proceedings and these proceedings of arbitration are still
in progress and are yet to be decided by the Arbitrator. It is further not disputed
that, in the arbitration proceeding, which had been thus initiated, the appellants
have prayed for the relief to the effect that, whatsoever alleged amount they have
already paid as consideration towards the property that, was said to have been
covered by the agreement for sale dated 24.11.2015, the amount may be
remitted. We will have to consider as to what bearing would the relief clause of
the arbitration agreement, would have wherein the appellant had already prayed
that a direction may be issued to the corporate debtor to forthwith pay the 8
amount as claimed to be payable against respective property as invested by the
appellants, with a prayer for payment of an additional amount of interest payable
@ 12% w.e.f. 1st October, 2018 till the date of its actual recovery. These
proceedings are admittedly pending consideration.
9. Another fact, which is revealed from the record is that, while the recourse
to the arbitral proceedings have already been resorted to by the appellants, and
the same is pending consideration. Further in lieu of sale consideration, which
has been paid by the appellant, the appreciation amount for which a cheque was
issued by the respondent (corporate debtor) had bounced. The appellant had also
initiated proceeding under Section 138 of the Negotiable Instrument Act and
same is pending consideration.
10. It is under these circumstances that the appellant had filed their respective
I.A.s, being I.A. Nos. 2527 of 2024, 2531 of 2024, 2432 of 2024, 2465 of 2024
and 2471 of 2024. In all these I.A.s. those were preferred on 25.04.2024, the
applicants to it, i.e. the appellants herein, while invoking the provisions
contained under Section 60(5) of (I&B) Code, besides raising a claim, contended
that, the respondent to admit the full amount as respectively paid by each of
them individually, owing to the consideration that has exchanged hands because
of the agreement for sale. They have simultaneously prayed that their status may
be recognised as to be that of a "financial creditor", in the class of allottees. It is
this limited issue of class of classification of the appellant as claimed to be that
of "financial creditor", is under consideration in the instant company appeals.
11. The question that falls for consideration is that, admittedly, 9
1. The appellant's agreement for sale is an unregistered document and that
too in relation to an immovable property, which may also engage
consideration, as to whether at all it could be read in evidence for
incidental purposes.
2. When the appellants themselves have filed an application on 25.04.2024
by invoking Section 60(5) of I&B Code, wherein they have prayed for to
remit the full amount of claim, whether at all they could under the given
set of circumstances be at all treated as to be an allottee, who could in
turn be considered as to be a financial creditor.
12. Owing to the fact that, the appellants have already invoked Clause 10 of
the Agreement for Sale dated 24.11.2015, when they had filed an arbitration
proceeding in which they have claimed for the refund of the amount of sale
consideration, then they themselves by their own action have renounced or
waived their status, being that of the allottee who could claim to be declared as
a financial creditor so as to be brought within the ambit of Section 5(8) of the
I&B Code and more so when the cheque of refund of amount that was issued by
the Corporate Debtor and the same had been was presented by the appellant for
its encashment, which upon its dishonour by the bank, the appellant had filed
the proceeding under Section 138 of Negotiable Instruments Act. These two
facts, which could be culled out from records are that they admit the refund,
they admit that the cheque was dishonoured and they admit that they are
already in a proceedings under Section 138 of Negotiable Instruments Act, we
are pursuing their remedies for the purposes of ensuing the remittance of the
amount that, was covered by the cheques which stood bounced by the bank. 10
13. What is important is that if we consider the language and intent contained
under Section 5(8) of I&B Code, there are certain basic elements, which are
required to be satisfied before the allottee could bring himself within the ambit
of the financial creditor. The financial creditor has been independently defined
under Sub-Section 7 of Section 5 of the Code. The same is extracted herein:
"5(7) "financial creditor" means any person to whom a financial debt is owed and includes a person to whom such debt has been legally assigned or transferred to"
14. If the language used in the definition of "Financial Creditor, the legislative
has specifically prescribed that, there has to be a "financial debt i.e. owed", to
whom such debt has been "legally assigned or transferred". In the instant case,
because of the fact that, the amount remitted under the agreement for sale since
there was a breach in the allotments and the appellant had admittedly had
already invoked the Arbitration Clause, where they themselves have claimed for
remittance of the amount. In that eventuality, they do not continue to enjoy the
status of that being of an allottee, may be that, there happens to be an agreed
agreement for sale though being unregistered. For the purposes to bring a person
within the ambit of a financial creditor as prescribed under Sub-Section 7 of
Section 5, it uses the expression "financial debt". Word "financial debt" has been
more elaborately dealt with under Sub-Section 8 of Section 5 of the Code and
particularly, if we look into sub-clause (f). The definition of financial debt is
extracted hereunder:-
11
"5(8) "financial debt" means a debt along with interest, if any, which is disbursed against the consideration for the time value of money and includes--
(a) money borrowed against the payment of interest;
(b) any amount raised by acceptance under any acceptance credit facility or its de-materialised equivalent;
(c) any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument;
(d) the amount of any liability in respect of any lease or hire purchase contract which is deemed as a finance or capital lease under the Indian Accounting Standards or such other accounting standards as may be prescribed;
(e) receivables sold or discounted other than any receivables sold on non-recourse basis;
(f) any amount raised under any other transaction, including any forward sale or purchase agreement, having the commercial effect of a borrowing;
[Explanation.--For the purposes of this sub-clause,--
(i) any amount raised from an allottee under a real estate project shall be deemed to be an amount having the commercial effect of a borrowing; and
(ii) the expressions, "allottee" and "real estate project" shall have the meanings respectively assigned to them in clauses (d) and (zn) of section 2 of the Real Estate (Regulation and Development) Act, 2016 (16 of 2016);]
(g) any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or 12
price and for calculating the value of any derivative transaction, only the market value of such transaction shall be taken into account;
(h) any counter-indemnity obligation in respect of a guarantee, indemnity, bond, documentary letter of credit or any other instrument issued by a bank or financial institution;
(i) the amount of any liability in respect of any of the guarantee or indemnity for any of the items referred to in sub- clauses (a) to (h) of this clause;"
15. The connotation given therein would be about the amount that has been
raised under any other transaction including any forward sale or purchase
agreement, it only classifies as to what the "debt" would be and for the said
purpose, we will have to borrow the definition of debt as given under Sub-Section
11 of Section 3 of the Code. It means a liability or an obligation. The "debt" has
been defined as under:-
"3(11) "debt" means a liability or obligation in respect of a claim which is due from any person and includes a financial debt and operational debt;"
16. The liability or an obligation, it prescribes a continuation feature to sustain
a claim that obligation is continuous and not a ceased obligation, which is due
to be paid by the CD, to a person as it is the case at hand. And that has made it
inclusive of the financial debt. In the instant case, filing of an I.A. in which the
impugned order has been passed where the appellant has sought determination
of its status to be declared as to be a financial creditor, may not be possible for
the reason being that according to the debt as defined under Sub-Section 11 of 13 Section 3, it has to be "liability or an obligation". The aspect of liability and
obligation, so far as the appellants are concerned that, stood ceased as soon as
they have accepted the cheque of refund of amount issued by the respondent
and which by their voluntary action had presented before the bank for its
encashment in their accounts. The very conduct of the appellant do not bring
themselves that, the corporate debtor owes a debt in the shape of a liability which
is continue in nature so as to enable him to claim for a declaration as a financial
creditor. Essence that and has already marginally referred, Sub-Section 7 of
Section 5 cannot be excluded to be considered, before we embark upon Sub-
Section 8 of Section 5, which has been consistently harped upon by the learned
Counsel for the appellant and by way of repetition we would say that in order to
acquire status of financial creditor, the feature of being a financial creditor, there
has had to be a financial debt as covered under Sub-Section 8 of Section 5 and
it is owed by the corporate debtor which prescribes for with continuity of existing
liability of remittance and will not include within itself the already remitted
amount to be called as debt to the classified as financial creditor. In the present
set of circumstances of the instant case, there is no owing of debt, by the
corporate debtor because it already stood remitted at the time and stage when
the appellant had filed I.A. seeking the refund of its claim and if that be the
situation where it does not fall to be a debt as it was already a discharged liability
of debt, the appellant cannot be declared as to be a financial creditor until and
unless they themselves sustain to prevail upon the fact that the debt is
continuing to enable them to entitle seek a declaration.
14
17. The learned Counsel for the respondent had argued that, the relief sought
by the appellant and particularly as it has been has involved consideration in
the instant Company Appeals qua their claim of declaration as to be that of a
'financial creditor', cannot be sustained for the reason being that, according to
their own admitted conduct of the appellant and if we look it from the perspective
of the pleading raised by them in the arbitration proceedings particularly the
reference was made to para - 4 and 5 which is extracted hereunder:-
" 4. That as per the Agreement to Sell/Arbitral agreement dated
22nd October, 2015, the respondents had agreed to complete the
construction and deliver the fully constructed, vacant and
peaceful actual possession and absolute ownership of the flats to
the Claimant in 2018 but they could not complete the same in the
agreed period.
5. That at the time of execution of the documents, the
respondents also gave symbolic possession of the booked flats on
papers. The appreciation cheques alongwith the cheque of
principal amount invested with the respondents and cheques of
personal guarantee and personal guarantee appreciation cheques
were also handed over to the claimant in June, 2018 at the time
of handing over the Agreement to Sell dated 24 /11/2015."
18. It is submitted by the Counsel for the respondent that if those were the
conditions of para 4 and 5 of pleadings, for invocation of the arbitration clause,
the agreement for sale itself cannot be treated to be the a complete transfer or a
delivery of the property in question because its own case of the appellant in the 15
pleading raised before Arbitration Tribunal that it was only a symbolic
possession was given and was dependent upon satisfaction of certain
connections which were to be satisfied, and besides there was an admitted
expression given that, it was agreed by the respondent to complete the
construction and to deliver the fully constructed vacant and peaceful possession.
What is being argued by the Counsel for the respondent is that if that is the
pleading raised by the appellant in the arbitration proceedings, the features as
pleaded in para - 4 and 5 of the arbitration proceeding (extracted above), that
itself does not brings the appellant within the ambit of being an allottee, as
alleged to entitle them for a declaration to be a financial creditor under Sub-
Section 7 of Section 5 of I&B Code.
19. The learned Counsel for the appellant in response to it, had heavily relied
upon a judgement as rendered by the Hon'ble Apex Court in the matters of Civil
Appeal No.3806 of 2023 Vishal Chelani & Ors. Vs. Debashis Nanda. What is
being tried to be argued by the learned Counsel for the appellant is that, there
cannot be a classification or a sub-classification, as amongst the class of
allottees and hence, it has submitted that under the strength of the Judgement
of Vishal Chelani (supra), it has laid down that when as per law of the country
there cannot be a classification between the class of allottees. They have to be
treated commonly for the purposes of allotment, but there are various factual
distinction in the applicability of this Judgement in the present Company Appeal
for the reason being that, the parity of equivalence that is being sought by the
appellant in the matter of Vishal Chelani was at a stage where the judgement of
the NCLAT was put to challenge, where it was ruled that the beneficiary of a 16
decree of Utter Pradesh Real Asset Regulatory Authority, and the order of the
resolution professional by proposing that they are to be treated differently with
other home buyers and allottees was held otherwise than what was laid down by
the NCLAT. It had ruled in these circumstances that even if the allottee is a
holder of a decree that, he cannot be meted out with a distinct treatment with
other allottees may be even because he is a holder of a decree and that is what
is being laid down by the Hon'ble Apex Court in para - 8 of the said Judgement,
which is extracted here under:-
"8. The Resolution Professional's view appears to be that once an
allottee seeks remedies under RERA, and opts for return of money
in terms of the order made in her favour, it is not open for her to
be treated in the class of home buyer. This Court is unpersuaded
by the submission. It is only home buyers that can approach and
seek remedies under RERA - no others. In such circumstances,
to treat a particular segment of that class differently for the
purposes of another enactment, on the ground that one or some
of them had elected to take back the deposits together with such
interest as ordered by the competent authority, would be highly
inequitable. As held in Natwar Agarwal (HUF) (Supra) by the
Mumbai Bench of National Company Law Tribunal the underlying
claim of an aggrieved party is crystallized in the form of a Court
order or decree. That does not alter or disturb the status of the
concerned party - in the present case of allottees as financial
creditors. Furthermore, Section 238 of the IBC contains a non 17
obstante clause which gives overriding effect to its provisions.
Consequently its provisions acquire primacy, and cannot be read
as subordinate to the RERA Act. In any case, the distinction made
by the R.P. is artificial; it amounts to "hyper-classification" and
falls afoul of Article 14. Such an interpretation cannot therefore,
be countenanced."
20. This case was factually based upon altogether a different circumstance
where a classification was being made as amongst the allottees based upon a
class of allottees being a decree holder by Judgement rendered by RERA, and it
was a classification that was made since the allottees were under a decree of
RERA, and was advocated that, they have to be distinctly treated as compared
to other allottees. It is under these circumstances, the Apex Court has
considered the implication of Explanation to Sub-Clause (f) of Sub-Section (8) of
Section 5 of I&B Code. That cannot be a similar factual situation here, because
here it is not a claim of a allottee claiming their status to be determined as a
financial creditor, based under the strength of a decree, as held amongst a class
of allottees. This is a case where the appellant had referred to the Judgement of
Vishal Chelani (supra), without even being termed to be classified as to be an
'allottee', owing to their own case as it could be determined from the terms of the
agreement for sale dated 24th November, 2015 and that of the Judgement of
Vishal Chelani (supra) which had treated the classification based upon the
Judgement of RERA, and more importantly when it is their own case of the
appellant that they have invoked arbitration proceedings for refund of money. In
that eventuality, they cannot sail on two boats simultaneously by resorting to 18
the recourse of arbitration proceedings under Section 138 of Negotiable
Instrument Act. On one hand, raising a claim excepting the money to be
refunded to them through cheque and it is still being argued that they continue
to enjoy the status of being an 'allottee', so to be classified as to be a "financial
creditor". As soon as the appellant have filed a claim by invoking Clause 10 of
the agreement for sale raising a claim for the refund of the amount to be remitted
to them, the appellant by their own conduct, cannot be brought within an ambit
of financial creditor under Sub-Section 7 of Section 5 of the Code even on reading
of the Explanation of Sub-Clause (f) of Sub-Section 8 of Section 5 of the Code.
21. Besides that, also because of covenants of the agreement itself is quite
explicit enough and more particularly, when according to their own admission
of the appellant since, we are of a considered view that they do not fall within
the scope of the "allottee" to bring them within an ambit of financial creditor and
since their claim of the amount was not continuous because it has been sapped
by the receipt of money that has already been refunded to them, by the corporate
debtor they cannot claim for the relief No.2 as it was claimed by them in the
respective I.A. filed in the Company Petition, which has been rejected by the
Impugned Order.
22. Hence we could safely conclude mainly while recording our finding based
on the facts of acceptance of an execution of the agreement for sale that in itself
may not amount to providing a legal sanctity to the agreement for sale and the
conditions of the agreement as contained there, and there is no perversity in the
finding recorded by the Tribunal while interpreting the implications of Vishal
Chelani (supra) by holding that the jurisdiction of the claimants in the case of 19 Vishal Chelani (supra) since being that of a continuous allottee, the appellant
cannot be placed on same pedestal owing to the grounds which we have already
considered and because of the aforesaid fact, we find that the reasoning, which
has been assigned by the learned Tribunal for declining to accord the appellant
the status being that of a financial creditor do not call for another interference
by us hence company appeals are dismissed.
All pending Interlocutory Applications stand closed.
[Justice Sharad Kumar Sharma] Member (Judicial)
[Indevar Pandey] Member (Technical)
19.08.2026
rs
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