Industrial unit allottees with assured returns not financial creditors under S.5(8)(f) IBC; treated as other creditors, distinct from protected homebuyers.

ORDER

I.A. NO. 5593/2023

1. The present application is filed by the Applicants, under Section 60 (5) of the Insolvency and Bankruptcy Code, 2016, to direct the Respondent to admit the entire claim of the Applicants as submitted in Form-CA and to treat the claim of the Applicants as a financial debt, also to direct the Respondent to classify the Applicants as ‘financial creditors in a class’ and to admit them to the Committee of Creditors, also, to provide the status of the Unit No. 4 in pre-engineered building No. WE-IV located at Renaissance Industrial Smart City, Village: Vashere, Post: Amane, Tal: Bhiwandi, Dist: Thane, Maharashtra and to Pass such other(s), direction(s) as deemed fit and proper in the facts and circumstances of the present case.

2.1 Brief Facts of the case are that the Applicants and the Corporate Debtor executed a MoU dated 11.02.2022, wherein it was agreed by the parties to enter into a guaranteed license plan whereby the Corporate Debtor agreed to pay compensation to the Applicants as per the MOU and further, receipt of the entire consideration amount is also acknowledged by the Corporate Debtor in the said MOU.

2.2 Further, the Applicants entered into a Registered Agreement for Sale dated 07.03.2022 with the Corporate Debtor and made payments to the corporate debtor towards consideration of the premises.

2.3 Further, vide order dated 31.03.2023 passed in CP(IB) 979/MB/2022, the Corporate Debtor was admitted into the CIRP and appointed Mr. Birendra Kumar Agarwal as the IRP. Subsequently, the Public Announcement was made by the IRP on 06.04.2023 thereby requesting the creditors of the corporate debtor to submit their claims.

2.4 It is further averred that the Applicants filed their claim before the Respondent by submitting their claim vide Form - C (Claim by Financial Creditors), and that on request made by the Respondent, the Applicants sent a revised claim form (Form - CA for submission of claim by financial creditors in a class) dated 31.08.2023 to the Respondent with revised rate of interest applied to their claim amount vide email dated 04.09.2023. Further, the Applicants had also sent a letter dated 31.08.2023 to the Respondent intimating them that the premises be kept out of the CIRP process and that Sale Deed be executed in favor of the Applicants upon completion of construction of the premises.

2.5 It is submitted that after submission of revised claim form, the Respondent vide email dated 29.09.2023 admitted the claim of the Applicants to the extent of Rs. 3,95,85,112/-, however, it is contended that the Respondent admitted the claim of the Applicants as a "claim belonging to other creditors" instead of a "claim belonging to financial creditors in a class" and also did not include the interest component of Rs. 59,08,078/- in the total admitted claim amount.

2.6 It is contended that the claim of the Applicants is a financial debt under section 5(8) of the Code, as the Applicants are allottees who have bought premises from the Corporate Debtor and the said project for which the claim is filed is registered under RERA and bears registration number P51700013956 and hence, is to be considered a real estate project. It is further contended that, the Respondent has erred in not considering the interest component as mentioned in the Claim Form when the provisions for the same are clearly mentioned in the MOU at Clause No. 5. In this regard reliance has been placed on Section 2(d), (j) and (zn) of the Real Estate (Regulation and Development) Act, 2016.

2.7 Further, the reliance has be