9911796707
TMI Blog2022 (4) TMI 206X X X X Extracts X X X X X X X X Extracts X X X X ..... interest. A careful perusal of the Memorandum of Understanding and also the Joint Venture Agreement entered into between the parties on 28.09.2011 and 27.02.2012 respectively shows that the relationship between the Appellant and Respondent is that of land owner and developer and furthermore viewed from any angle the amount invested by the Appellant towards the completion of the Project cannot be termed to be a Financial Debt as defined under Section 5(8) of the Code. Having regard to the nature of the transactions between the Appellant and the Respondent this Tribunal is of the earnest view that the Appellant does not fall within the definition of term Allottee . Having regard to the terms and conditions of the Memorandum of Understanding and the Joint Venture Agreement entered into between the parties, this Tribunal is of the considered view that the amount invested in the Joint Venture Project by the Appellant herein in his capacity as a Promotor and Investor does not fall within the ambit of the definition of Financial Debt as defined under Section 5(8) of the Code - Appeal dismissed. - COMPANY APPEAL (AT) (INSOLVENCY) No.150 of 2019 - - - Dated:- 4-4-2022 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... project as defined in sub-clause (zn) of Section 2 of the Real Estate (Regulation and Development) Act, 2016 (RERA) cannot be doubted but the question here is whether the petitioner can be treated as an Allottee for taking advantage of the explanation to sub-clause (f) of Section 5(8) of the Code. 20. The term Allotee is defined in Clause (d) of Section 2 of RERA Act. It says that allottee in relation to a real estate project means the person to whom a plot, apartment or buildings, as the case may be has been allotted, sold (whether as freehold or leasehold) or otherwise transferred by7 the promoter, and includes the person who subsequently acquires the said allotment through sale, transfer or otherwise but does not include a person to whom such plot, apartment or building, as the case may be, is given on rent. We find that under the circumstances the petitioner can be considered an allottee under RERA Act. As a Promoter, the petitioner is equally interested in the completion of the project to be marked for the purpose of the business and cannot be an allottee at all. (Emphasis Supplied) 2. Submissions of the Appellant: The Learned Counsel for the Appellant subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fined under Section 5(7) of the IBC. 5. For better understanding of the relationship between the Appellant and the Respondent this Tribunal finds it relevant to reproduce the terms of MOU entered into between the parties on 28.09.2011:- MEMORANDUM OF UNDERSTANDING This Memorandum of Understanding is made and executed at Greater Noida on this day 28th September, 2011 with the purpose of finalizing a business agreement between M/s Rawal Variety Construction Ltd, a company incorporated under the companies Act, 1986 having its registered office at RVC V9illage Jatoli, Raigarh Road, Oachghat, Solan, Himachal Pradesh acting through its director Mr. Rajesh Raval (hereinafter referred to as the Developer) which expression shall mean and include, unless repugnant to the context or is otherwise excluded from the same, its successors-in-interest, administrators, authorised and legal representatives, being the party of the Developer. And M/s Jagbasera Infratech Private Limited, a company incorporated under the Companies Act, 1956 having its registered office at G-83/106 Vijay Chowk, Laxmi Nagar, Delhi-110092 and corporate office at D-212, Second Floor, above Axis Bank, K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I) so raised on the said Plot. 3. The cost of land, its development and construction of the said residential studio units to be raised on the said Plot shall be borne by the Promoter as per Annexure II. The expenses shall include the cost of the architect, sanction of plans, construction of the built up spaces, installation of fire fighting systems as prescribed lifts, generator/individual investors for power back-up, electric sub-station, water storage tanks, installation of lighting equipment for common areas and provision for allied services (as per specification annexed hereto (as Annexure 1A). (Emphasis Supplied) 6. From the above noted Memorandum of Understanding it is crystal clear that the Appellant is classified as a Promoter who seeks to develop the said Plot and construct the studio apartment, club, jogging track, shops, dormitory, children park on the said plot and has entrusted the Project to the Respondent who is arrayed as the Developer in the said Memorandum of Understanding. In fact, the Joint Venture Project in the name and style of Valley View Apartments Project was to be launched and promoted in the name of Appellant herein. 7. At this jun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Clause 15 of the Memorandum of Understanding specifies that promoter shall be entitled to raise loans in its own name from banks/financial institutions for the project. There shall be no liability on the Developer for re-payment of the loans or interest. A careful perusal of the Memorandum of Understanding and also the Joint Venture Agreement entered into between the parties on 28.09.2011 and 27.02.2012 respectively shows that the relationship between the Appellant and Respondent is that of land owner and developer and furthermore viewed from any angle the amount invested by the Appellant towards the completion of the Project cannot be termed to be a Financial Debt as defined under Section 5(8) of the Code. Having regard to the nature of the transactions between the Appellant and the Respondent this Tribunal is of the earnest view that the Appellant does not fall within the definition of term Allottee . This Tribunal in Company Appeal (AT)(Ins) No.780/2020 while dealing with a similar issue has observed as follows:- 15. The MoU entered into is an Agreement of reciprocal rights and obligations. We are of the earnest view that both parties being Joint Development Partner ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
