Whether Homebuyers who entered in a separate agreement for providing Monthly Assured Return are also required to meet threshold criteria as per second proviso to Section 7(1) of IBC – Rita Malhotra and Anr. Vs. Orris Infrastructure Pvt. Ltd. – NCLAT New Delhi
In this case, the Corporate Debtor had entered into an Agreement with the Appellants on 24.04.2010 (MOU) for providing Monthly Assured Return (MAR).
The Appellants submitted that the present application has not been filed for default by real estate developer under terms of allotment but for reasons of default under an independent and separate agreement executed between the two parties for MAR.
Hon’ble NCLAT held that:
(i) On a plain reading of the provisions contained in the definition clause under RERA Act, a commercial space/unit allottee is covered under the purview of ‘allottee’ under RERA Act.
(ii) Assured Returns Class of Creditors, they continue to belong to the substratum of ‘allottees’ and therefore continue to be governed by the threshold limit prescribed under second proviso to Section 7(1) of IBC.
(iii) The Appellants cannot be said to go out of the definition of ‘allottees’ merely because they are part of MAR plan or that they should be treated in a different category wherein they are not required to comply with second proviso to Section 7(1).
