AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2024 (9) TMI 566
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....erm sheet is bedrock of the litigation between the parties, therefore, the same is reproduced as under : - 3. The case set up by the Appellant is that a sum of Rs. 2.77 Cr. was disbursed to the Respondent in terms of the term sheet and since the term sheet has been cancelled, therefore, the Appellant is entitled to the refund of the entire amount of advance alongwith interest @ 18%. It is submitted that the amount in question given to the Respondent was loan, therefore, the Tribunal has committed a patent error in treating the said amount as investment on the part of the Appellant while dismissing the application. In this regard, he has drawn our attention to the finding recorded by the Tribunal which read as under:- "44. We refer to clause 6.96 of the Term Sheet headed as 'Allocation ' which is reproduced hereinbelow: "The First Party shall be allotted 30% of the total sanction area and the Second Party shall be allotted 70% of the total sanction area. The Parties shall mutually demarcate their allotted areas after obtaining the plan sanctioned. Each party shall be entitled to deal with their respective allocations" 45. Having considered the respectiv....
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....ioned in the term sheet, no rate of interest was fixed nor any time lines was ascertained for the service of interest, therefore, it does not fall within the definition of financial debt as defined under Section 5(8) of the Code. It is also submitted that Respondent was having the land but there were bragadars sitting over it who had barga rights in terms of West Bengal Land Reforms Act, 1955. In simple language, bargadars are called the sharecropper. It is submitted that as far back as on 08.11.2016, the Respondent even took the legal advice from the Solicitor in this regard and it was opined by the Solicitor that as per Section 15(2) of the Act the transfer of barga right by the bargadars is prohibited. It is further submitted that the Tribunal has rightly dismissed the application while referring to clause 6.9 of the term sheet as per which, after the clearance of the title of the Respondent, 30% land was to go to the Respondent and 70% was to go to the Appellant, therefore, it is submitted that it was not a case of advancement of the loan but it was a case of investment in the land as an investor. It is further submitted that none of the judgments relied upon by the Appellant a....
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....ment of 352.28 (three hundred and fifty two point two eight) decimal land at Mouza Badehooghly, within Ward No. 22 (formerly) of Rajput Sonarpur Municipality as appearing below: 1. Parties 1.1 First Party City Star Infrastructures Limited, a company incorporated under the Companies Act, 1956; having its registered Office at 5 Gorky Terrace, Kolkata-700017, being represented by- its For CITYSTAR INFRASTRUCTURES LTD. lam balam 115 Trocafied with CamScanner Document 2 1.2 Second Party Mechika Hulldcon LLP, a limited Habliley partnership firm incorporated under the Limited Liability Partnership Act, 2005, having; its registered Office at Room No. 18, 5th Floor. 2013, British Iulia Street, Kolkata-700069, being represented by its Partner, Mahesh Periwal, con of Late Bijay Periwal. 2. Said Property Land measuring (i) 68 (sixty cight) decimal, more or less, comprised in R.S./L.R. Dag No.3 And (H) 12 (twelve) decimal, more or less, comprised In R.S./L.R. Dag No.4 (ili) 23 (twenty three) decimal, more or less, comprised In R.S./L.R. Dag No.5 And (iv) 25 (twenty five) decimal, more or less, comprised in R.S./L.R: Dag No.6 And (v) 98 (nincty eight) decimal. more or les....
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....rtir: 5. Details of Said Property 5.1 and Description Measurement Land measuring 352.28 (three hundred and fifty two) decimal, more or less, subject to survey and physical verificatiun by Second Party. 6. Terms Agreed 6.1 Mutation The First Party shall at its own cost and responsibility mutate its name in the records of the Block Land And Land Reforms Office. Sonarpur and also in the records of Rajpur- Sonarpur Municipality, with respect to entirety of the Said Property, within 4 to 5 months from the date of this present. 6.2 Conversion The First Party shall at its own cost and responsibility convert the entirety of the Said Property to homestead land in the records of the Lind Reforms Office, Sonarpue, within 3 (three) months after getting the mutation done. 6.3 ULC Clearance The Second Party shall obtain ULC clearance with respect to the Said Property in the name of The Party Second Party has atrepted the deal of the now recording bry this presents. Party and terms and conditions has- been finalized betseeen the Parties, which the Partir: The hereby First and Description Measurement Meehika Bulldcon LLP STAR INFRASTRUCTURES L....
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....mmencement Construction Covenants of the Second Party True Cop Mashiko Buildcon LLP Document 5 (11) | Ks.1,25,00,000/- (Rupees one crore and twenty five lac), within seven (7) days from the date of removal of Baragadars from BL&LRO records and correction of records by mutation in the name of the First Party at BL&LRO. (ili) Rs.51,00,000/- (Rupees fifty one lac) within 7 (seven) days from the date of getting conversion certificate of the Said Property. 6.14 Adjustment. . Consideration of The Security (i) (ii) . First Party shall adjust the entirety of the Deposit in the following manner: 50% of the deposit amount i.e. Rs. 1,75,50,000.00 (Rupees One Crore . Seventy-five Lacs fifty thousand only) at the time of first sale out of the allocation of the First Party and the Second Party each, by taking the average rate of both the sales (Ascertained Value) and by earmarking out of the Allocation of the First Party in a just and equitable manner such area as is calculated after dividing Rs: 1,75,50,000.00 by the Ascertained Value and allowing the Second Party to exclusively use/sell such arca and adjust/retain the consideration thereof as refund' of Rs. 1,75,50....
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....it. The amount so adjusted shall remain fixed at Rs. 175,50,000.00 irrespective of the actual rate at which the Second Party sells this carged out area out of the allocation of the First Party. In case Document 6 First Party falls short to ensure refund of the entire balance deposit amount of Rs. 1.75.50,000.00, the First Party shall pay in cash such shortfall to the Second Party within 7 days of the Completion of the Project. 83 The First Party shall provide all necessary cooperation to the Second Party to ensure the proper refund of the Security Deposit. S. Miscellaneous 8.1 Due Diligence The Second Party shall cause due diligence with respect to the Said Property and may cause paper publication with respect to the same and the First Party hereby grants its full consent to that effect. The preliminary observation report has already been sent to the First Party the details observation report with complete response to requisition on title of the Said Property shall be sent to the First Party within 45 (forty five) days from the date of execution of this Term Sheet. . 8.2 Title Certification The Advocate of the Second Party (Advocate) shall certify the tit....
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....nsation to the extent of unsold units under consideration. 9. Termination Title Defects: if the title of the Said Land, either in part or in full, appears to be defective and incurable in nature then the Second Party shall have the option to cancel this Term Sheet and on such cancellation/termination the First Parties shall refund the entirety of the Advance along with an interest @15% (eighteen) per annum, within 15 (fifteen) days from the date of demand. No Termination: Neither of the Parties shall be liable to cancel this Agreement or opt out from the Project, save and except the circumstances mentioned herein. 10. Further Documentation The Parties hereby confirm and agree that, the Parties shall execute all other documents including but not limited to the Joint Venture Agreement etc, at mutually agreed stage and as to be necessary to give better and further effect of their understanding. Arbitration All disputes and differences by and between the Parties hereto in any way touching this Term Sheet or relating liereto or arising out herefrom shall be referred by the Parser to the arbitration TAB (HARD Bulldcon LLP O"STAR INFRASTRUCTURES LTD 7 Documen....