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TMI Blog2021 (8) TMI 761X X X X Extracts X X X X X X X X Extracts X X X X ..... l the customers who have booked units in the said project with the involvement of the Operational Creditor. This excel sheet also provides information regarding each customer to verify whether the bookings have been done through the Operational Creditor or not. From the above, it is clear that most of the customers have booked the flats from different sources viz. with a reference of his friend, though newspaper etc. and not through the Petitioner. In view of this, this bench is of the view that no brokerage arises in the flat bookings relating to the customers who have booked flat from the sources other than brokerage. It is therefore clear to the bench that the Corporate Debtor had raised dispute before the Demand Notice was raised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per the agreed terms of the agreement. 3. The counsel for the petitioner further mentioned that the petitioner vide its demand notice dated 20.12.2016 requested the respondent to make payment of the outstanding amount of ₹ 61,69,488/- for the Marketing fee/brokerage as agreed between them. The respondent vide its email dated 31.01.2017 acknowledged its liability and agreed to make part payment of the said amount by 04.02.2017. Again, the petitioner vide an email dated 07.02.2017 requested the respondent for making the payment of the outstanding amount. Thereafter, the respondent vide its email dated 08.02.2017 apologized for the delay in making payments and assured to make payments by 15.02.2017. 4. The counsel for the responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have categorically admitted and informed that they have booked the units in the said Project through referral, friend, advertisement hoarding, customer care or direct walk-in. 6. The counsel for the respondent further stated that as per Clause 7 of the said Agreement, the Petitioner was liable to achieve booking of 100 Units within 6 months from the date of execution of the Agreement. However, the Petitioner breached the Agreement, as it failed to book 100 units in the Project. Also, as per clause 10 of the Agreement dated 09.03.2016, if the customer pays less than 40% or 20% of the sale consideration then the brokerage if any paid to the Petitioner shall be adjusted from the brokerage due on any other unit in the said project. 7. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as of 30.09.2016. Whereas, the notice issued thereafter on 20.12.2016 states the amount due as ₹ 30,50,742/- and as per the email dated 07.02.2017 the amount due and payable was ₹ 27,76,095/-. Further, the amount of debt does not match the invoices attached to the Petition which states the amount to be ₹ 28,49,613/-. This clearly states that the amount claimed by the Petitioner is frivolous and not crystalized. FINDINGS 10. This Petition has been filed by the Operational Creditor, M/s. Indiabulls Distribution Services Ltd u/s 9 for a total claim amount of ₹ 61,69,488/-. The claim is based on an agreement dated 09.03.2016 between the Operational Creditor and the Corporate Debtor wherein the Operational Creditor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an Twenty percent (20%) of the Sale consideration, then the brokerage, if any, paid for such Unit(s) shall be adjusted from the brokerage due to the Consultant on rebooking of such Unit(s) or brokerage due on any other unit in the sold project of the Developer . 11. This bench notes that as per the above clause if unit is cancelled by the prospective purchaser, the Operational Creditor shall not be entitled to any brokerage. In addition, if the purchaser does not pay the minimum of 40%, in case of Self Funded Customer, or 20% in case of a Customer availing loan facility, then no amount will be payable as brokerage fee and any brokerage already paid shall be adjusted from the brokerage future due. 12. This bench notes that in Part-IV ..... X X X X Extracts X X X X X X X X Extracts X X X X
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