TaxTMI 
TaxTMI 
2022 (9) TMI 275
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....f facts of the case necessary to be noticed for deciding this Appeal are: The Corporate Debtor owns free hold plot of land bearing Khasra No. 1008, 1009/1 & 1009/2. 1010, 1011 & 1012, at Village Maharauli, NH-24, District Ghaziabad (U.P.) total area admeasuring 6960 square meter. The Corporate Debtor represented to the Respondent No. 1 that they desire to get develop a Group Housing Project in the said land and they expressed their desire to obtain necessary infrastructure and man power to construct and market flats/units etc. The Operational Creditor and the Corporate Debtor decided to enter into a 'Development Agreement' for the purposes of carrying out the project on the land owned by the Corporate Debtor. An Email dated 03.10.2016 was sent on behalf of the Operational Creditor to the Corporate Debtor addressed to Mr. Paramjit Gandhi forwarding the copy of the proposed development agreement dated 01.10.2016 requesting to give their consent to the development agreement to go ahead. Mr. Paramjit Gandhi immediately replied the email on 03.10.2016 stating that they will not sign till they receive substantial amount credited with them. The Operational Creditor had made payment ....
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.... to pay amount of Rs. 23.60 Crore for taking over the Corporate Debtor, in confirmation of said negotiation, amount of Rs. 3 Crore was paid. It was pleaded that in result of the payment of Rs. 3 Crores an agreement to sell dated 19th April, 2017 was signed between the parties. In pursuance of signing of the Agreement four post-dated cheques of Rs. 5.15 Crores was handed over. On 04th July, 2017, Cheque of Rs. 5.15 Crores was deposited in the Bank which was dishonored. It was pleaded that Section 8 Notice was never served. Legal Notice dated 17.05.2018 has been issued to the Operational Creditor to fulfill its part of the Agreement dated 19th April, 2017. A Replication was filed by the Operational Creditor pleading that all correspondence was done by Mr. Paramjit Gandhi who was 50 percent shareholder in the Corporate Debtor and another 50 percent was held by the brother of Mr. Paramjit Gandhi, Shri Gagan Deep Gandhi. The Operational Creditor pleaded that amount of Rs. 4 Crores has been extorted by the Corporate Debtor. Agreement dated 19th April, 2017 was not admitted. It was further pleaded that there does not exist any agreement dated 25th April, 2017 which is a tampered documen....
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....he parties. The Operational Creditor has written Email and letter dated 04th August, 2017 and 06th September, 2017 for signing a term sheet which was not done. The Corporate Debtor at no point of time prior to filing Section 9 Application communicated that they have signed term sheet dated 25th April, 2017. On account of non-signing of Agreement, the Operational Creditor was compelled to send notice dated 26th December, 2017 for refund of the amount paid. It came to the notice that the Corporate Debtor has already sold 20 flats to the third party namely Navjyoti Associates Private Limited by registered sale deed executed in the year 2014. It is submitted that the Adjudicating Authority has rightly admitted the Application under Section 9 of the Code. 5. We have considered the submissions of Learned Counsel for the parties and have perused the record. 6. We need to first notice the nature of transactions between the parties to find out as to whether the Corporate Debtor owed any Operational Debt. 7. The Draft Development Agreement dated 01.10.2016 is the first document which was forwarded on behalf of the Operational Creditor to the Corporate Debtor for approval and to further go....
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....f the Application under Section 9 along with all the documents filed has been brought on record by the Appellant as Annexure A-6 (Colly), Volume-II of the Appeal Paper Book. Operational Creditor in the Application has categorically come with the case that in spite of Development Agreement forwarded to the Corporate Debtor in October, 2016, the Development Agreement was not signed. The Corporate Debtor was unwilling to go ahead with the Development Agreement hence notice dated 26.12.2017 was issued claiming refund. A reply has been filed to Section 9 Application by the Corporate Debtor which has also been noted by the Adjudicating Authority in the Impugned Order. The Copy of the Reply filed by the Corporate Debtor to Section 9 Application is on the record at Page 273 to 307 of the Appeal Paper Book to which Replication was also filed by the Operational Creditor. Reply by the Corporate Debtor to Section 9 Application has to be looked into to find out as to what was pleaded by the Corporate Debtor before the Adjudicating Authority. When we look into the Reply filed by the Corporate Debtor, in the Reply, the payment of Rs. 3 Crores have been admitted in paragraph 4. In paragraph 4, ref....
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....ou shall be liable for civil proceedings under the Indian Contract Act, 1872 and criminal proceedings under the Indian Penal Code, 1860." 11. When we look into the pleadings including Legal Notice by the Corporate Debtor it is clear that what they claim to have entered between the parties is Agreement to Sell dated 19th April, 2017, there was no mention of the Term-Sheet dated 25th April, 2017 which according to the Appellant is the only document entered between the parties and filed along with the Appeal. The pleadings in the Reply of the Corporate Debtor which was the first defense set up by the Corporate Debtor in reply to Section 9 Application clearly relates to claim of the Appellant where signing of any Term-Sheet dated 25th April, 2017 between the parties is not even claimed. The Reply has been filed by the Corporate Debtor in June, 2018 and when there is no mention of any Term-Sheet dated 25th April, 2017 in the detailed Reply we are inclined to accept the submission of the Operational Creditor that Term-Sheet dated 25th April, 2017 is fabricated document by the Corporate Debtor-Appellant and cannot be relied on. It is further relevant to notice that Agreement to Sell date....
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....ed No. 457 dated 18.01.2013 duly registered with the Sub-Registrar [V], Ghaziabad at Bahi No. 1, Jild No. 3252 (pages No. 1 to 247) and Sale Deed No. 603 dated 23.01.2013 at Book No. 1, Volume No. 3266 (page No. 263 to 290) at Ghaziabad (U.P.) (B) AND WHEREAS the FIRST PARTY has requested and assured that the Land Use of said plot as per the orders issued vide case No. 14/2008-09 (under section 14) of UPJV &BVA dated 04.02.2009 by the Court of Sub District Magistrate [First Class], District Ghaziabad [U.P.] and as per letter of Ghaziabad Development Authority (hereinafter referred to as "GDA") bearing no. 189/Master Plan/13 dated 06.12.2013 is Residential/Commercial copies of the aforesaid order/letter are as per Annexure-I and Annexure 2 respectively]. (C) AND WHEREAS THE FIRST PARTY is desirous to get developed a Group Housing Project upon the said plot. (D) AND WHEREAS the SECOND PARTY has represented that they possess necessary infrastructure and manpower to construct and market the Residential Flat/Units/Apartments/Houses/Shops as proposed under this Agreement. (E) AND WHEREAS the FIRST PARTY and the SECOND PARTY have desired and agreed to enter into a joint venture De....