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2022 (3) TMI 410 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- On reading the terms of the Joint Development Agreement, it is clear that in the project there are certain things to be done on the part of the petitioner herein, who has given the land as part of the bargain and there is conjoint role on the part of the developer the Respondent herein for completion of the project. No doubt clause 4.5 deals with the period for which the project should be completed but on a perusal of other clauses of JDA, it is clear that both the parties have agreed to certain terms for sharing, on completion of the project and also to take over the property, if it is not sold. In that situation the reading of these clauses makes it clear that the percentage of sharing has already been determined by both the parties and it is evident that they stand as one in the promotion of these project except to the extent that sharing of the revenue has been demarcated in respect of each project according to their terms of agreement. On reading the various clauses of the JDA, which is almost identical in all the three JVAs (Joint Venture Agreement), it appears to be a case of joint Development by proportionate participation of both the parties and sharing of the profits or the built-up area in the manner specified in the JVA. Nowhere, in the JVA, there is an indication to the effect that Respondent has to provide services to the Petitioner, if both are to share the project by putting the land and development works and sharing the land and technical support for development and share the profits, it can be only termed as a case of JV Project and not a case of service provider by one party or the other - The revenue sharing concept which is the key to, this JVA makes it very clear that it cannot be turned as a service owed by the Respondent to the petitioner; both will have to sail together or sink, because of the JVA. Furthermore, we also notice that at page 136 to 145, are the statements given by the respondent in the normal course of business, stating details of the property under development and the share of the petitioner under the JVA. In terms of the JVA a substantial amount of ₹ 23,44,53,000/- has been received by the petitioner from the respondent/corporate debtor and there is a balance of ₹ 03,92,18,660/-. This should at best be termed as an ongoing business liability which should have been resolved between the parties in terms of the JVA. This makes it clear that it is not a case of debt but is a case of liability as between one partner and the other partners in the JVA. There are no merit in this case for admission under Section 9 as an Operational Creditor and the same is dismissed.
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