RERA has locus to challenge CIRP initiation Order in Real Estate Insolvency in appeal under Sec. 61 of IBC before NCLAT | CIRP cannot be initiated under Sec. 9 of IBC on the basis of Barter Agreement/Transactions – Real Estate Regulatory Authority v. D.B. Corp Ltd. & Anr. – NCLAT New Delhi
Hon’ble NCLAT held that:
(i) Question of locus to file an Appeal as an aggrieved person and the question as to whether appeal filed by the aggrieved person is to succeed, are two different questions and the question of locus is not dependent on success of the grounds in the Appeal.
(ii) In view of the sequence and events of the facts which took place and various proceedings drawn by RERA much prior to issuance of notice under Section 8 of the Code by the Operational Creditor, we are satisfied that Appeal filed by the RERA cannot be thrown out on the ground of locus. The RERA held to be aggrieved person within the meaning of Section 61 of the Code.
(iii) RERA has locus to file Company Appeal.
(iv) From the definition of claim under Section 3(6) of IBC it is clear that both sub-clause ‘(a)’ and ‘(b)’ refers to “a right to payment”. The claim must subsist for a debt being debt to become operational debt must relate to a right to payment unless operational creditor has a claim i.e. a right to payment against the corporate debtor, no operational debt can arise to enable Operational Creditor to initiate proceeding under Section 9 of the Code.
(v) NCLAT concludes that Application filed under Section 9 by the Operational Creditor alleging Operational Debt was non-maintainable since there was no operational debt on basis of which payment of money could have been demanded by the Operational Creditor from the Corporate Debtor on account of non-discharge of Barter Component by the Corporate Debtor.