2022 (11) TMI 703

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....0 of 2021 'Indiabulls Distribution Services Ltd. Vs. Xrbia Developers Ltd.', CA (AT) (Ins) No. 1031 of 2021 'Indiabulls Distribution Services Ltd. Vs. Xrbia Aobode Developers Pvt. Ltd.', CA (AT) (Ins) No. 1032 of 2021 'Indiabulls Distribution Services Ltd. Vs. Xrbia Developers Ltd.' and CA (AT) (Ins) No. 1033 of 2021 'Indiabulls Distribution Services Ltd. Vs. Xrbia Warai Developers Pvt. Ltd.' as the issue involved in the aforesaid appeals are common and the impugned order has been passed on the same date i.e. 13.08.2021 dismissing the application filed under Section 9 of the Insolvency and Bankruptcy Code, 2016 (in short 'Code') by the same findings. CA (AT) (Ins.) No. 1029 of 2021 2. This appeal is against the order dated 13.08.2021 passed by the Adjudicating Authority (National Company Law Tribunal, Mumbai Bench) by which CP (IB) No. 4436/IBC/MB/2019 filed by the Appellant (Indiabulls Distribution Services Ltd.) for a total claim of Rs. 17,35,762/- has been dismissed. The claim of the Appellant is based on the agreement dated 09.03.2016, entered into between Xrbia Chakan Developers Pvt. Ltd. (Developers) with Indiabulls Distribution Services Ltd./Appellant (Consultant) to m....

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....y was filed by the Respondent on 05.08.2019. CA (AT) (Ins.) No. 1033 of 2021 6. The Appellant filed an application under Section 9 of the Code before the Adjudicating Authority bearing CP (IB) No. 4416/IBC/MB/2019 for a claim of Rs.1,28,70,576/- based on the Agreement dated 09.03.2016 entered into between Xrbia Warai Developers. Pvt. Ltd. (Developers) with Indiabulls Distribution Services Ltd./Appellant (Consultant) as per which the Appellant was to get his brokerage on booking of the units in the project called 'Xrbia Courtyard Home'. The demand notice dated 19.02.2019 was served in terms of Section 8 of the Code by the Appellant, in Form-3, to which reply was filed by the Respondent on 05.08.2019. 7. It is pertinent to mention that the amount claimed in all five appeals by the Appellant is Rs. 17,35,762/-, Rs. 61,69,488, Rs. 1,67,662/-, Rs. 8,99,276/- and Rs. 1,28,70,576/- towards his brokerage for the units booked/sold. 8. As we have already observed that all the five applications have been dismissed by the Adjudicating Authority on the ground of a pre-existing dispute which has been based upon the email dated 01.03.2017 and similar findings have been returned, there....

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....oked Unit &. availed Finance facility from a Financial Institution then in such cases the Developer shall issue a cheque, of amount equivalent to 50% of the marketing fee/brokerage amount due to the Consultant on receipt of 10% of Sale Consideration from the said Identified Buyer of the Unit(s). The Balance payment of 50% of the marketing fee/brokerage amount due to the Consultant on receipt of next 10% of Sale Consideration from the said Identified Buyer of the Unit(s). It is specifically agreed by the parties that the pay out of marketing fee shall be made on 7th of each month for the Unit(s) booked in previous month by a customer(s) identified by the Consultant." 7. The Consultant shall endeavour to offer to book 100 (One Hundred Only) Unit(s) in the Project within a period of Six (06) months from the date of execution of this Agreement. The Consultant shall be entitled to increase the above-said period of its sole discretion provided however that unbooked/unsold Unit(s) are available in the Project. 10. In the event the booking for a particular Unit is cancelled by the customer/buyer/purchaser, the Consultant shall be entitled to receive hundred perce....

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.... -32353 3) Switched Off 7 0 Grant Total 138 4150817 11. Counsel for the Appellant has vehemently argued that nothing is clear from the impugned order, passed separately in all the five appeals, by the Adjudicating Authority as to how the email dated 01.03.2017 highlights a pre-existing dispute, therefore, according to the Appellant, the impugned order is a non-speaking order and deserves to be set aside on this ground alone. 12. We have straightway asked Counsel appearing on behalf of the Respondent in the aforesaid appeals to explain the meaning of the email dated 01.03.2017 in order to understand as to how it would tantamount to a pre-existing dispute to non-suit the Appellant in his application filed under Section 9 of the Code. Counsel for Respondent has failed to give any satisfactory answer and all that has been stated that the Appellant had actually not booked as many flats in all five projects, mentioned hereinabove, as has been claimed in the application filed under Section 9 of the Code. 13. We have heard Counsel for the parties and perused the record with their able assistance. 14. It is an admitted fact that the genesis of their relationshi....