CIRP can also be initiated against Maintenance Company in case Developer transferred deposit to Maintenance Company – Bhaskar Biswas, Suspended Director of Oxford Facilities Management Vs. Avaani Oxford Owners’ Association – NCLAT New Delhi
The amounts were collected by the Developer and kept with its subsidiary, the Corporate Debtor, for the purpose of maintenance till the Association/ Society or Holding Organization (i.e. Respondent No. 1) gets established to hand over the amounts to the body of the flat owners. Section 5(8)(f) Explanation makes it clear that any amount raised from an allottee under a real estate project shall be deemed to be an amount having the commercial effect of a borrowing. Thus, we accept the claim made by Respondent No. 1 that it is the ‘Financial Debt’. There is Financial Debt due and in default of amount more than threshold stated in Section 4 of IBC. We do not find that there is any error in the impugned order vide which the CIRP was initiated.(p11-12)