TaxTMI 
TaxTMI 
2018 (12) TMI 1945
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....of the case. 2. The petitioner has filed application in Form No.1 as prescribed ¡n Rule 4(1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules 2016 (for brevity 'the Rules'). The contents of the application are supported by the affidavit of Mr. KushalVir Singh Rana, the authorised signatory. The authorised and paid up share capital of respondent-corporate debtor is 5,00,000/- as reflected in the master data (Annexure A/2). It has its registered office at District Solan in the State of Himachal Pradesh and therefore, the matter falls within the territorial jurisdiction of this Tribunal. 3. The facts of the case, briefly stated, are that the financial dealings between the parties are as per the Memorandum of Understanding dated 28.09.2011 (Annexure A/3) and Joint Venture Agreement dated 27.02.2012 (Annexure A/4). The financial creditor made the payment to the respondent to the tune of 4,21,37,850/- which according to the petitioner is covered within the requirement of Section 5(8)(f) of the Code. The financial creditor made the above payments on various dates to the respondent- corporate debtor ranging from 21.10.2011 to 14.05.2018, as per the....
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....ime value of money and includes- (a) . to (e) (any amount raised under any other transaction, including any forward sale or purchase agreement, having the commercial effect of a borrowing;" Explanation has also been added to Clause (f) of Section 5(8) by way of Amendment Act 26 of 2018 with effect from 06.06.2018 and it reads as under: 'Explanation - for the purposes of this sub-clause, (i) any amount raised from an allottee under a real estate project shall be deemed to be an amount having the commercial effect of a borrowing: and (ii) the expressions. "allottee" and "real estate project" shall have the meanings respectively assigned to them in clauses (d) and (Zn) of Section 2 of the Real Estate (Regulation and Development) Act, 2016 (16 of 2016)" 7. In the Memorandum of Understanding (MOU) dated 28.09.2011 (Annexure A-3) the petitioner has been described as 'Promoter' and the respondent as a 'Developer'. The purpose of the agreement is booking and selling of real estate properties to be developed by the 'Developer', namely the respondent. The respondent is engaged in the business of developing, pla....
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....nce rights to the petitioner. The petitioner was entitled to raise the loans in its own name from the bank/financial institutions for the project and there was also the arbitration clause between the parties. 10. The payment schedule has been specified in Annexure-Il attached with the agreement as at page 27 of the paper book which is as under: "First Payment Schedule (0 to 180 days) this schedule ¡s flexible as per Developer/Promoter convenience 25% of total has to be paid in the above mentioned period. Second Schedule: • 10% after completion of plinth work • 10% after the compeletion of slabs • 10% after the completion of masonry work • 10% after the completion of wooden & electric works • 10% after the finishing of all the work including above Final Schedule: • 25% full and final payment will be made at the time of handing over the possession and complete project Total Project Time: 2 years" 11. A Joint Venture Agreement was also executed between Smt. Krishna Devi, Chairman cum Managing Director of the respondent, on behalf of respondent and the petiti....
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....g with interest, if any, is disbursed against the consideration for time value of money and ¡nclude any one or more mode of disbursement as mentioned in clause (a) to (i) of sub-section (8) of Section 5. 15. It was further observed that the question whether the appellants came within the relevant clause of one of the Memorandum of Understanding dated 12.04.2008. In the said case the Investor was interested in booking of a shop for a total consideration amount of 46,67,402/- and the mode of payment by cheque was also mentioned. The relevant term of Memorandum of Understanding was that most of the consideration paid as on 19.03.2008 by the Investor was on the condition that the Developer was ready to pay the monthly committed returns to the Investor. The Investors however was not interested to get the monthly return till December 2008 i.e. for 9 months. Accordingly the Developer undertook to make payment of the consolidated amount of 99,600/- less TDS as applicable every calendar month to the Investor as committed return w.e.f. January 2009 up to the date of handing over of the possession. The other term of the Memorandum of Understanding was that the Investor has given the ....