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Ashoka Hi-Tech Builders Private Limited vs. Sanjay Kundra and Anr. - (NATIONAL COMPANY LAW APPELLATE TRIBUNAL) (18 Jan 2023)

A collaborator in the development agreement is not a financial creditor



Present Appeal has been filed against the Order by which on an Application filed by the Home-Buyers, the Appellant has been removed from the Committee of Creditors. Appellant's case is that Appellant was a land owner on which the development project was to be constructed and he had filed the claim before the Resolution Professional which was admitted and he was inducted in the Committee of Creditors however subsequently on an Application filed by the Home-Buyers, impugned Order has been passed removing the Appellant from the Committee of Creditors holding that he is not the financial creditor.

Looking into the terms and conditions of the development agreement, the Adjudicating Authority has come to the conclusion that, the Appellant was not a financial creditor since no amount was disbursed for the time value of money on the basis of which the Appellant can be held to be financial creditor.

Judgement of this Tribunal in Namdeo Ramchandra Patil & Ors. Vs. Vishal Ghisulal Jain fully covers the issues and Adjudicating Authority has rightly referred to the Judgement holding that Appellant is not a financial creditor. The terms and conditions of development agreement entered Company Appeal between the appellant and the corporate debtor, makes it clear that the Appellant was a collaborator in the development agreement and not a financial creditor. There was no disbursement for time value of money by the Appellant within meaning of Section 5(8) of the IBC. There is no error in the order impugned. The Appeal is dismissed.


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