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TMI Blog2022 (3) TMI 410X X X X Extracts X X X X X X X X Extracts X X X X ..... he revenue has been demarcated in respect of each project according to their terms of agreement. On reading the various clauses of the JDA, which is almost identical in all the three JVAs (Joint Venture Agreement), it appears to be a case of joint Development by proportionate participation of both the parties and sharing of the profits or the built-up area in the manner specified in the JVA. Nowhere, in the JVA, there is an indication to the effect that Respondent has to provide services to the Petitioner, if both are to share the project by putting the land and development works and sharing the land and technical support for development and share the profits, it can be only termed as a case of JV Project and not a case of service provider by one party or the other - The revenue sharing concept which is the key to, this JVA makes it very clear that it cannot be turned as a service owed by the Respondent to the petitioner; both will have to sail together or sink, because of the JVA. Furthermore, we also notice that at page 136 to 145, are the statements given by the respondent in the normal course of business, stating details of the property under development and the share of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 and the project name is called Ansal Project Heights 1 . In this project there is a difference of opinion, as to who is the actual land owner. According to the Petitioner, Optus Corona is Land Owner and equity is held equally by the Petitioner and the Corporate Debtor. In respect of this land the development has to be undertaken by the Corporate Debtor/AHCL. Whereas, according to the Ld. Counsel for the Corporate Debtor/AHCL, the land in respect of Sector-86, relatable to the Ansal Projects Heights 1, actually belongs to M/s. Resolve Estates Private Limited, as stated in the Memorandum of Understanding and Joint Venture Agreement (page 80 and 90 of the petition). 5. The Fourth Land Parcel is situated at Village Wazirpur, Tehsil District Gurgaon, Haryana, part of residential Sector-92 Gurgaon Manesar Urban Plan 2021 and the project name is called Ansal Project Heights 2. In this, according to the Ld. Counsels for the Petitioner and the Corporate Debtor, they own 50% each of the land as joint owners and the project Ansal Project Heights 2, has to be developed by the Corporate Debtor. 6. In this background, there was an MOU and Joint Venture Agreement, which are annexed an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the statutory notice dated 03.11.2018 and to the various claims in term of the MoUs and JVA, which are as follows: a) Project Hub, Section 83 - ₹ 18,23,63,660/- alongwith an interest @ 24% per annum monthly compoundable starting from 31.03.2014 till the date of payment. b) Project Boulevard, Sector 83-II ₹ 91,77,60,597/- alongwith an interest @ 24% per annum monthly compoundable from 30.04.2015 till the date of payment. c) Project Heights, Sector 86 ₹ 36,32,83,026/- alongwith an interest @ 24% per annum monthly compoundable from 30.09.2015 till the date of payment. d) Project Heights, Sector 92 ₹ 28,16,72,656/- alongwith an interest @ 24% per annum, monthly compoundable starting from 31.12.2014 till the date of payment. 11. Amount claimed to be in default and the date on which the default occurred and the final amounts are stated in Para 2 at Page 166 167, which is as follows: It will be not out of place to state that to support this claim, strong reliance is placed on the four MoUs and two JVAs and one JDA as per para 6 of the Order. 12. The Respondent/Corporate debtor disputes the claims in the reply dated 13.11.2018 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ans and start of construction subject to force majeure restraints/restrictions from authority/courts and circumstances beyond the control of the Developers and reasons attributable to the Landowner. 14.2 The cause 7 at page 54 is about Costs , which is an important clause of the JDA. For better clarity we are reproducing the entire clause: 7.1 All costs relating to Projects Land including costs for obtaining License have been borne by the Landowner/SPPL and both Landowners/SPPL shall remain liable to bear any demands/claims that the land in future as well. The responsibility of Landowner SPPL will remain restricted to providing/contributing Project Land duly Licensed, and free of any charge/mortgage or liens to the Developer for development of the Project. 7.2 All costs and expenses including the fees of the Architects, Engineers, Consultants, Electricity/Water Board and staff/workforce of the Developer for the preparation of lay out/building plans and obtaining of various approvals of the same including payment of submission fees, scrutiny fees shall borne and paid by Developer alone. 7.3 All costs and expenses relating to internal development and constructio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es exceeding 8% of revenue will be borne and paid by Landowners solely: For the purposes of computation of amounts spent on Brokerage/discounts given to customers by the Brokers would be considered as part of Brokerage Expenses. 12.6 That the Car Parking areas shall not be sold and would be utilized by the occupants or visitors to the Project. The receipts on account of car parking charges collected from customers shall be shared between the Developers and the Landowners in the ratio of 25% to Landowners and 75% to the Developer after deducting the expenses on maintenance of the Car Parking areas. However, if any portion of Car Parking spaces are also sold, the revenues arising out of such sale/lease would be shared in the ratio of 42% to SPPL and 58% to the Developer. 12.7 That the Revenue received from renting out of spaces available for hoardings, antenna and other common display areas as mutually identified by the parties hereto would be shareable between the Landowners and Developers in the ratio of 25% and 75% respectively after netting office excluding any expenses incurred in connection therewith. 12.8 That realizations from administrative charges recovered f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ture endeavour or opportunity. The cost construction of any additional enhanced FARs shall be borne by the Developer. 12.15 That the Developers/Landowners will open an Escrow Account wherein all collection from the Project will be deposited and the account will be operated under the joint signatures of one signatory from the Developers and one signatory from the Landowner. The Escrow Account will be opened after receipt of sanctions for Building Plans and commencement of construction. 14.4. The clause 14 of the JDA (page 60), relates to Security Deposits for Performance which is reads as follows: 14.1 That in addition to the share of receivables, the Developer has paid a sum of ₹ 2.50 Crores as Refundable Interest Free Security Deposit to SPPL. The Refundable Deposit of ₹ 2.50 Crores would be refunded in five instalment namely ₹ 1.50 Crore on completion of superstructure of the building and balance ₹ 1 Crore on completion of building for fit outs. 14.5. The clause 17 of the JDA refers to No objection Certificate/Execution of Transfer Documents on Completion of Project/Authorisation. This clause deals with the role of both i.e., Landowner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... services to the Petitioner, if both are to share the project by putting the land and development works and sharing the land and technical support for development and share the profits, it can be only termed as a case of JV Project and not a case of service provider by one party or the other. It is also to be noticed that in case of dispute, it is a case for Arbitration between the parties in the JVA. We also find that there are clauses in the JVA which state even in respect of interest collected from customers for late payment, which should be shared between landowner and developer in a particular ratio. It therefore goes beyond mere construction and development, it goes farther subsequent to the completion of the project, if the units are given to the intending purchaser and there is a delay in payment even that will be shared between parties. The revenue sharing concept which is the key to, this JVA makes it very clear that it cannot be turned as a service owed by the Respondent to the petitioner; both will have to sail together or sink, because of the JVA. Furthermore, we also notice that at page 136 to 145, are the statements given by the respondent in the normal course of bus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Three Thousand and Twenty Six Only) alongwith an interest @ 24% per annum monthly compoundable from 30.09.2015 till the date of payment d) Ansal Project Heights 2 - An amount of ₹ 86,04,73,327 (Rupees Eighty Six Crore Four Lakh Seventy Three Thousand Three Hundred and Twenty Seven only) is admittedly due from the Corporate Debtor to the Operational Creditor. The Corporate Debtor has paid an amount of ₹ 71,21,80,671 (Rupees Seventy One Crore, Twenty One Lakh, Eighty Thousand, Six Hundred and Seventy One only). Therefore, ₹ 14,82,92,656/- (Rupees Fourteen Crores Eighty Two Lakhs Ninety Two Thousand Six Hundred and Fifty Six Only) alongwith an @ 24% per annum monthly compoundable starting from 31.12.2014 till the date of payment. 20. The reading of it makes it clear that in terms of the JVA a substantial amount of ₹ 23,44,53,000/- has been received by the petitioner from the respondent/corporate debtor and there is a balance of ₹ 03,92,18,660/-. This should at best be termed as an ongoing business liability which should have been resolved between the parties in terms of the JVA. This makes it clear that it is not a case of debt but is a case of liabi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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