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TMI Blog2023 (3) TMI 177X X X X Extracts X X X X X X X X Extracts X X X X ..... t. The Appellant and the Corporate Debtor also entered Assured Return Agreement dated 22.07.2016, whereby it is stated that the Corporate Debtor will pay @ 16% per annum of BSP received or Rs. 28,949/- as Assured Return rate for a total period of 30 months or till possession whichever is later. There is no doubt that the Appellant had purchased two cottages and to that effect entered Agreement to Sell and also entered an agreement for Assured Return dated 22.07.2016. From the perusal of the said document, it is crystal clear that the Appellant is a homebuyer and paid an amount of Rs.45,00,000/- pursuant to the agreement and terms conditions as mentioned there at. The bone of contention of the Appellant is that the Appellant cancelled the Agreement to Sell by a Cancellation Agreement dated 20.11.2018 - From the perusal of the said Cancellation Agreement dated 20.11.2018 annexed as Annexure A-11 at pages 152 to 155, we find that the only signature of the buyer affixed on each page of the said document, however, there is no signature affixed by the Corporate Debtor and there are no signatures of the witnesses. Therefore, this Tribunal reluctant to decide its authenticity and vali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d time, the Appellant approached the Respondent for full refund of already paid amount which was agreed by the Respondent and on its solicitations the Appellant paid an additional amount of Rs. 5,00,000/- which was subsumed into earlier paid amount and a loan agreement was entered into on 20.11.2018 for full amount of Rs. 50,00,000/- to be repaid to the Appellant within 3 to 6 months alongwith interest @ 18%. It is submitted that two cancellation agreements were signed by the both the parties cancelling the Agreement to Sell dated 15.04.2016. 4. It is submitted that the having no other alternate the Appellant filed Section 7 Application before the Adjudicating Authority and the Respondent filed a Reply to the said Application on 19.08.2019 whereby it admitted all the concerns raised by the Appellant. However, the Respondent filed 2nd Reply dated 17.01.2020 without the leave of the Tribunal violating the NCLT Rules and in the 2nd Reply, the Respondent made contradictory and false statement made on affidavit by denying the existence of any loan due to the Appellant. However, in the Respondent / Corporate Debtor admitted the due amount in its 1st Reply affidavit. 5. It is submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Debtor shall pay the assured monthly rental at the rate given in Annexure-A of the Agreement to Sell. Further, as per Clause (14) of Agreement to Sell, the Corporate Debtor has given an option to buy back the property from the Appellant under different rates after the expiry of different period. 12. The Learned Counsel further submitted that the case of the Appellant s is in the nature of speculative investors and covered by judgment of this Tribunal in the matter of Anikit Goyal vs. Sunita Agarwal (2021) 131 taxmann.com 219(NCLAT) para 18. Also relied upon the judgment of this Tribunal in the matter of Nidhi Rekhan Vs. Samyak Projects Pvt. Ltd. (2022) 138 Taxmann.com 236 NCLAT para 17. 13. It is submitted that the Appellants at the time of signing the agreement dated 15.04.2016 paid a consideration of Rs. 22,50,000/- for each cottage totalling to a sum of Rs. 45,00,000/- for two cottages. Further, the Appellants themselves did not want to complete the sale and has not shown the readiness and willingness in getting the possession and transfer of the said cottages. The Appellants are due payment of balance sale consideration of Rs.1,07,66,000/- for both cottages. The Appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct Almora for a total consideration of Rs. 76,33,000/- for each cottage . 18. Further, in the very same column, it has been stated that the two separate Agreements to Sell dated 15.04.2016 were executed between the Corporate Debtor and the Appellant, and in pursuance thereof a sum of Rs.45,00,000/- for the two cottages were paid. In Column-2, the Appellant claimed an amount of Rs.52,70,000/-, however, the said amount claimed to be under cancellation agreement dated 20.11.2018. 19. We have perused the Agreement to Sell dated 15.04.2016 from the preamble, it is clear that the Corporate Debtor in the capacity as seller and developer and the Appellant being the purchaser entered the said agreement. The covenant of the agreement emphasises that the project / cottages will take approximately 30 months to complete and the same will be delivered after completion of construction. The total consideration of each cottage mentioned as Rs. 76,33,000. /-. In Clause 14 of the Agreement to Sell, the Corporate Debtor / Seller has given a buy back option to the Appellant/ Buyer for the said property as per the terms mentioned there at. The Appellant and the Corporate Debtor also entered Assu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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