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Judgment
O R D E R
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 claim as Operational Creditor. Challenging the said decision an I.A was filed, which has been rejected.
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.
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.
We have considered the submissions of the parties and perused the records.
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.”
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.
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.
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.