TaxTMI 
TaxTMI 
2022 (9) TMI 906
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....8.09.2021 passed by the Adjudicating Authority (National Company Law Tribunal), Mumbai Bench, Court No.5 by which order I.A. No. 1035 of 2021 filed by the Landowners/ Intervenors has been rejected. The brief facts of the case necessary to be noticed for deciding these Appeals are: (i) The Corporate Debtor - 'M/s Wadhwa Buildcon LLP' is a real estate company. A Development Agreement dated 23.01.2006 was entered between M/s Wadhwa Buildcon LLP and the Landowners including the Appellants - 'Namdeo Ramchandra Patil' and 'Ravikant Ramchandra Patil' for development of a parcel of land belonging to the Landowners including the Appellants. As a consideration for the development rights given by the Landowners, Corporate Debtor had agreed to give 45% of the constructed area out of the total construction to the Landowners. Area sharing between the parties was in the ratio of 45:55. In pursuance of the Development Agreement, development was carried out by the Corporate Debtor. (ii) On an application filed by Bank of India under Section 7 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as 'I&B Code') an order was passed by the Adjudicating Authority on 28.....
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....1035/2021 In Company Petition no. 2946/MB/2019 in the matter of Bank of India V/s M/S Wadhwa Buildcon LLP passed by the Ld. Adjudicating Authority and reject the IA - 1035/2021 filed by the Bank of India challenging the inclusion of Appellants as Financial Creditors. ii. The Hon'ble Appellate Tribunal may be pleased to pass any such further or other order(s) as this Hon'ble Appellate Tribunal may deem fit and proper in the facts and circumstances of the case to grant justice to the appellants and the company." Prayers made in Company Appeal (AT) (Ins.) No. 940 of 2021: "A. Set aside Clause 30, 31 and 32(ii) of the Impugned Order dated 8th September 2021 Hon'ble National Company Law Tribunal (NCLT), Mumbai Bench in CP No. 2946/I&B/2019 titled as Bank of India Vs Vishal G Jain; Alternatively B. Omit/ modify/ expunge the unsubstantiated allegations / adverse remarks/observations and directions made against the Appellant in para 30, 31 and 32(ii) of the impugned order dated 8th September 2021; C. Pass any other order as this Hon'ble Tribunal may deem fit in the fact and circumstances of this case and in the interest of justice" 3. We h....
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....Debt. 7. We have considered submissions of learned counsel for the parties and perused the record. 8. The relevant facts including the Development Agreement dated 23.01.2006 entered between the parties i.e. the Corporate Debtor and the Landowners are captured in Para 22 of the order of the Adjudicating Authority, which is useful to extract. Para 22 is as follows:- "22. The Bench notes that the Corporate Debtor Company i.e., M/s Wadhwa Buildcon LLP, is a Real Estate Company against which Corporate Insolvency Resolution Process had commenced on 28.07.2020. The real estate Project undertaken by the Corporate Debtor are in the nature of joint venture project viz. Wadhwa Rhodesia has been undertaken by the Corporate Debtor on a parcel of land belonging to the 6 land owners viz. Mr. Namdeo Patil, Mr. Parshuram Patil, Mr. Ashok Patil, Mr. Vinayak Patil, Mr. Nana Patil, Mr. Ravikant Patil. As a consideration for the development rights, the Corporate Debtor has agreed to pay, as per the Development Agreement dated 23.01.2006, 45% of the constructed area out of the total construction. Thereby, the Corporate Debtor had an area sharing arrangement in the ratio of 45:55. In addit....
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....he 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);] (g) any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price and for calculating the value of any derivative transaction, only the market value of such transaction shall be taken into account; (h) any counter-indemnity obligation in respect of a guarantee, indemnity, bond, documentary letter of credit or any other instrument issued by a bank or financial institution; (i) the amount of any liability in respect of any of the guarantee or indemnity for any of the items referred to in subclauses (a) to (h) of this clause;" 11. We may now also notice the definition of 'allottee' under the RERA Act, 2016 as contained under Section 2(d):- "2(d) "allottee" in relation ....
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....Hon'ble Supreme Court in "Pioneer Urban Land and Infrastructure Ltd. vs. Union of India, (2019) 8 SCC 416", where the term 'disbursal' was explained in Para 70 of judgment and following has been observed:- "70. The definition of "financial debt" in Section 5(8) then goes on to state that a "debt" must be "disbursed" against the consideration for time value of money. "Disbursement" is defined in Black's Law Dictionary (10th ed.) to mean: "1. The act of paying out money, commonly from a fund or in settlement of a debt or account payable. 2. The money so paid; an amount of money given for a particular purpose."" 14. We may also notice judgment of the Hon'ble Supreme Court in "Anuj Jain, Interim Resolution Professional for Jaypee Infratech Limited vs. Axis Bank Ltd. & Ors., (2020) 8 SCC 401", where Hon'ble Supreme Court while examining the definition under Section 5(8) of the I&B Code noticed the essentials for Financial Debt. In Para 46, the Hon'ble Supreme Court has again emphasised that essential element is disbursement against time value of the money. Para 46 of the judgment is as follows:- "46. Applying the aforementioned fundamental principles to the....