SAJIVE KANWAR Vs. AMR INFRASTRUCTURE

JUDGEMENT

(1.) This order shall dispose of CP No. 6 and CP No. 7 of 2017. Both these petitions have been placed before us having been received after transfer from Hon'ble Delhi High Court. In accordance with the notification dated 07.12.2016 enforced with effect from 15.12.2016 the petitioner has filed an affidavit of compliance. It has been prayed that transfer application in CP Nos. 6 & 7 of 2017 be treated as the one u/s. 7 & 9 of the Insolvency and Bankruptcy Code 2016 (for brevity IBC). Both the petitions are directed against a construction company known as AMR Infrastructure Limited. The facts are that the respondent Company was incorporated on 15.06.2006. It has been developing Shopping Mall at Greater Noida. The detail facts have been taken from C.P. No. 6/2017. The petitioner booked shops in the aforesaid shopping mall as per the details given in para 6 of the petitions and they paid a total consideration of Rs. 53,71,452 in accordance with para 7 of CP 6 of 2017. The respondent company had undertaken obligations, inter alia, to pay a fix payment of Rs. 45,000 per month as its "committed return' from June 2008 till the date of delivery of possession. It was also obliged to make further payment of Rs. 5000 per month with effect from February 2010 till the date of possession, if the possession was not delivered by January 2010. According to the petitioner the amount of Rs. 45 lacs was paid in the belief that possession of the shops would be delivered within the agreed period. The possession of the shops has not been delivered by January 2010 and the respondent company has also failed to make payment of assured return from April 2014 onwards. Thus, there has been delay of over 6 1/2 years in completion of the project and delay of 8 1/2 years since the date of receipt of investment from the petitioner. Despite reminder sent by the petitioner, respondents have failed to pay back the investment and the amount of assured return. Even legal notices issued have not evoked any response. The petitioner has filed a petition before the Hon'ble Delhi High Court u/s. 433, 434 & 450 of the Companies Act, 1956. On the enforcement of the IBC the petition has been transferred to NCLT and posted before this Bench. In terms of notification dated 07.12.2016 an affidavit of compliance has also been filed. The affidavit states that these petitions be treated as one filed u/s. 7 and/or 9 of the IBC.

(2.) We have heard learned counsel at length and have perused the paper books with his able assistance. However, we find that the matter is squarely covered by the judgment of this Bench of the NCLT rendered on 23.01.2017 in CP No. (ISB) - 03(PB)/2017. In that case also the respondent was AMR infrastructure Ltd. and the agreement of purchase was similar in pith and substance.

(3.) We had considered the status of the petitioner in that petition as 'Financial Creditor u/s. 7 and have found that the petitioner could not be regarded as a 'Financial Creditor'. We further opined that the money owed by the respondent cannot be regarded as 'Financial Debt' within the meaning of Section 5(7) and Section 7(8) of IBC. The operative paras of the judgment dated 23.01.2017 contained complete answer to the arguments that the petitioner is a 'Financial Creditor' and the respondent owes a 'Financial Debt' to the petitioner. The operative paras 9 to 16 read as under: