Back
2026 Supreme(Online)(NCLT) 535
NATIONAL COMPANY LAW TRIBUNAL
Ashish Kalia, Judicial Member, Sanjiv Dutt, Technical Member
GIC Housing Finance Ltd – Appellant
Versus
Truvisory Insolvency Professionals Private Limited – Respondent
IA (I.B.C) No. 3109/MB/2024|CP(IB) No. 651/MB/2023
For the Appellants/Petitioners: Adv. Amay Hadwale, Adv. Geeta Lundwani
For the Respondents: Adv. Utsav Mukherjee, Adv. Saksham Ahuja, Adv. Mayukh Roy, Adv. Shivam Mehra
Tripartite agreement imposing primary refund obligation on developer for loans disbursed directly to it on homebuyers' behalf constitutes financial debt under IBC Section 5(8), qualifying financier as financial creditor distinct from homebuyers.
Headnote:(A) Insolvency and Bankruptcy Code, 2016 - Section 5(8), Section 14, Section 60(5) - NCLT Rules, 2016 - Rule 11 - CIRP Regulations - Regulation 12, Regulation 13 - Financial debt - Tripartite agreement between financier, homebuyers, and developer providing for direct disbursement of loan amounts to developer for pre-EMIs and developer's primary obligation to refund entire amount advanced by financier in event of default, project failure, or non-transfer of title - Held, such disbursement constitutes financial debt as it involves debt disbursed against time value of money with direct contractual obligation on developer; financier qualifies as financial creditor distinct from homebuyers despite admitted homebuyer claims; RP directed to admit claim for rejected portion after setting aside rejection. Distinction drawn from cases where no developer repayment obligation exists. (Paras 4.8 to 4.23)
(B) Insolvency and Bankruptcy Code, 2016 - Section 5(8)(f) - Transaction having commercial effect of borrowing - Direct disbursement to developer on behalf of homebuyers under tripartite agreement, coupled with developer's refund obligation, creates financier-developer relationship satisfying criteria; no duplication of claims as financier's interest protects secured recovery over assets where homebuyer claims rejected. (Paras 4.19 to 4.21)
Facts of the case:
Financier advanced approximately Rs. 76.92 crores directly to developer for 896 homebuyers' pre-EMIs under tripartite agreements; developer defaulted on repayment after project delays; CIRP commenced, RP admitted 181 homebuyer claims but rejected financier's claim as duplicative; IA filed seeking declaration as secured financial creditor, claim admission, delay condonation.
Findings of Court:
Financier declared financial creditor entitled to claim admission for balance 715 rejected homebuyer portions; RP's rejection set aside; no overlapping secured interests as financier's recovery protects distinct commercial stake.
Issues: Whether dues under tripartite agreement for pre-EMIs disbursed directly to developer constitute financial debt qualifying financier as financial creditor; maintainability amid admitted homebuyer claims; effect of clause imposing primary repayment on developer.
Ratio Decidendi: Where tripartite agreement mandates developer to refund entire loan advanced by financier to developer on homebuyers' behalf in defaults or project failure (primary liability), with homebuyer secondary, it establishes direct financial debt under Section 5(8); financier qualifies independently, enabling secured enforcement over assets for rejected claims.
Result: IA allowed; RP directed to admit financier's claim in accordance with law.
| Table of Content |
|---|
| 1. cirp initiation and applicant's ia reliefs sought (Para 1) |
| 2. maintainability and pre-emi as financial debt (Para 4) |
ORDER
[PER: ASHISH KALIA, MEMBER (JUDICIAL)]
1. BACKGROUND
1.1. This Interlocutory Application, IA (I.B.C) No. 3109/MB/2024 (IA) has been filed on 04.07.2025, by GIC Housing Finance Limited, the Applicant under Section 60(5) of the Insolvency and Bankruptcy Code, 2016 (IBC) read with Rule 11 of the National Company Law Tribunal Rules, 2016 (NCLT Rules), seeking directions as follows:
a. During the pendency of the present application, restrain the Resolution Professionals and the CoC from approving any resolution plan in respect of the Corporate Debtor.
b. Declare that the claim of the applicant constitutes a 'Financial Debt' and the applicant be classified in the category of 'Secured Financial Creditor'.
c. Direct the Resolution Professional to admit the claim of the Applicant filed in the category of Secured Financial Creditor d. Condone the delay, if any, in filing the claim of the Applicant e. During the pendency of the present application if any resolution plan is approved by the CoC, direct the Resolution Professional to include the claim of the Applicant in the Resolution Plan if so considered/ approved by the CoC f. Issue necessary directions against the Resolution Professional for defiance of NCLT order dated 12.03.2025 and Regulation 13 of the CIRP Regulations g. And for such other/ further order(s) and/or direction (s) as the facts and circumstances of the case may warrant
1.2 The aforesaid Company Petition i.e., CP(IB) No. 651/MB/2023 was filed by VSJ Investments Private Limited, the Original Financial Creditor in the said Company Petition to initiate the Corporate Insolvency Resolution Process (CIRP) against the Karrm Infrastructure Private Limited (CD). Later, the CD was admitted into the CIRP proceedings vide order of this Tribunal in the Main Application dated 29.02.2024 and Mr. Arun Kapoor was appointed as the Interim Resolution Professional (IRP) of the CD. Later, he was replaced with Truvisory Insolvency Professionals Private Limited as the Resolution Professional (RP) of the CD vide order of this Tribunal dated 16.05.2024.
1.3 The Applicant/GIC Housing Finance Limited has preferred this application before this Tribunal. The Ld. Counsel for the Applicant has given list of prospective home buyers of Corporate Debtor vide Memorandum of Understanding dated 22.04.2017.
2. CONTENTIONS OF APPLICANT
2.1 Since the project was in its early stages of construction, the Corporate Debtor agreed to pay the "Pre-Equated Monthly Instalments" ("Pre EMIs") of the homebuyers for the first three years or until the project was completed and the necessary Occupancy Certificate was obtained by the Corporate Debtor, and possession letters were issued to the homebuyers whichever came later.
2.2 It is stated Applicant disbursed the loan of Rs. 76.92 crores approximately to the Corporate Debtor on behalf of 896 homebuyers. This payment is directly disbursed to the` Corporate Debtor. However, the Corporate Debtor not only failed to construct the said projects and also failed to obtain an Occupancy Certificate but also defaulted on payments for the Pre-EMIs. After accounting for the amounts received from the Corporate Debtor, a total of Rs. 38.13 crores remained to be recovered. Consequently, the applicant filed Special Civil Suit No. 334 of 2023 before the Hon'ble Civil Judge (Senior Division) at Kalyan against the Corporate Debtor for the recovery of the outstanding amounts.
2.3 That certain security Cheques were issued to the applicant in discharge of the Corporate debtors. liability towards part payment of the outstanding Pre-Equated Monthly Instalments (PEMI) however the cheques dishonored. The applicant through its advocates sent a notice dated 28.08.2019 to the Corporate debtor and its directors under Section 138 read with Section 141 of the Negotiable Instruments Act 1881.
2.4 On 29.02.2024, CIRP proceedings st
