TaxTMI 
TaxTMI 
TaxTMI 
2021 (11) TMI 733
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....f facts of these Appeals are that M/s ANS Apartments Pvt. Ltd. (ANS) Corporate Debtor (Respondent) proposed to develop a Residential Project of 16 Multi-Storied Towers with Project name "Alstonia" at Plot No. 10, Sector Pi-2, Greator Noida, UP. Due to financial constraints, ANS could not complete the project and therefore, ANS entered into a written MOU dated 03.12.2012 with Rajput Properties & Developers Pvt. Ltd. (RPD) to complete the construction of 5 towers i.e. D, E, F, G and K. As per the MOU, RPD has to carry out the entire construction and internal development. The ANS has already incurred a cost of construction Rs. 17,03,55,527/-. It was agreed that RPD will make payment of aforesaid amount to the ANS within 12 months as per the schedule. As per the clause 17 of the MOU, RPD is entitled to sell its share of saleable area directly and collect all dues in favour of ANS Apartments Pvt. Ltd. A/c Shri Rajneegandha Greens (Dedicated Joint Signatory Account) and the amount will be transferred to RPD as per mutually agreed mechanism. As per Clause 22 of the MOU, RPD is entitled to construct and market flats to its share in the project site in the name and style of Shri Rajneegandh....
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....each falls within the definition of claim as defined under Section 3 (6) of the Insolvency and Bankruptcy Code, 2016 (IBC). 7. Ld. Counsel for the Appellant submitted that the MOU dated 03.12.2012 is in the nature of agency. For this purpose, he drew our attention towards the different clauses of the MOU and clause 6 of deed of termination of the MOU and submitted that the terms clearly show that the right, title and interest of the project land was agreed to be retained by the ANS (Respondent/Corporate Debtor). Minutes of meeting dated 15.04.2013 would show that ANS was only authorised to issue allotment letter. Therefore, ANS being a principal is bind by the acts of his agent RPD and obliged to honour the terms and conditions agreed between the Appellants and RPD. 8. Ld. Counsel for the Appellants further submitted that the MOU dated 03.12.2012 is not a collaboration agreement but an agency agreement. The Hon'ble Supreme Court in the case of Faqir Chand Gulati vs Uppal Agencies Pvt. Ltd. & Anr (2008) 10 SCC 345 has specifically dealt with meaning of joint venture/development agreement/collaboration agreement and held important features of such agreement. In the light of the Jud....
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....lotment of units in project Shri Rajneegandha Greens which as per the said MOU constitutes of the area allowed to RPD. The rights and liabilities with respect to this project are on account of RPD and even otherwise RPD undertook to indemnify ANS against any claim of allottees like the Appellants. Since, the payments were made to RPD for allotment of unit, in case of any dispute between RPD and ANS, the remedy of Appellants would lie against RPD. Ld. Adjudicating Authority has rightly held that there is no jural relationship between the Appellants and ANS (Respondent). Thus, the Appeals are liable to be dismissed. 12. After hearing Ld. Counsels for the parties, we have minutely examined the documents on record. 13. Following issues arise for our consideration. (a) Whether RPD being agent of ANS collected the part sale consideration from the Appellants? (b) Whether there is jural relationship between the Appellants and ANS? Issue No. (a) Whether RPD being agent of ANS collected the part sale consideration from the Appellants? 14. We have considered the MOU, on 03.12.2012 ANS entered into a MOU with RPD to complete the construction of five towers i.e. D, E, F, G & K. ANS h....
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....f Deed of MOU 23.08.2013 v. Letter send by RPD to ANS for issue of credit note. 18.02.2014 vi. Request by RPD to ANS for issuing allotment letter in favour of the Appellants. 18.02.2014 18. We have considered the relevant clauses of MOU, clause 17 and 31 of the MOU provides that RPD shall sell its share of saleable area directly and collect all dues in favour of ANS Apartments Pvt. Ltd. A/s Shri Rajneegandha Greens (Dedicated Joint Signatory Accounts) and the same will be transferred to RPD as per mutually agreed mechanism. It is also agreed that both the parties shall collect the sale proceeds from the sale of their respective areas in the name of ANS Apartments Pvt. Ltd. A/c Shri Rajneegandha Greens only. After execution of MOU between ANS and RPD, there was a meeting held on 15.04.2013 in which documentation and allotment procedure is decided. Thereafter, another meeting was held on 11.05.2013. The Minutes of the meeting is Annexure A-4. The Minutes which are relevant for the purpose of these Appeals are as under:- "1...... 2...... 3. All proceeds of dues from flats of tower G,F,K,D,&E will henceforth be deposited in joint A/c ANS Apartments Pvt. Ltd. A/c Shri Rajn....