9911796707
TMI Blog2022 (3) TMI 410X X X X Extracts X X X X X X X X Extracts X X X X ..... cture Pvt. Ltd. (AIPL), vide Sale Deed dated 16.01.2012 and the Petitioner (SPPL) acquired/purchased 100% Equity Shares of AIPL and took over the management of AIPL and become the land owners with AHCL for development of the projects. The subject matter to this dispute is a Land Parcel in Village Sihi, Tehsil & District Gurgaon, Haryana which is presently part of residential Sector-83 of Gurgaon Manesar Urban Plan 2021 and the project name is called "Ansal Project Hub". 3. There is a Second Land Parcel in the same residential Sector-83 and the project name is called "Ansal Project Boulevard" wherein the Petitioner is the Land Owner and the Corporate Debtor is the Developer. 4. The Third Land Parcel is situated in Village Nawada Fathepur, Tehsil & District Gurgaon, Haryana part of residential Sector-86 Gurgaon Manesar Urban Plan 2021 and the project name is called "Ansal Project Heights 1". In this project there is a difference of opinion, as to who is the actual land owner. According to the Petitioner, Optus Corona is Land Owner and equity is held equally by the Petitioner and the Corporate Debtor. In respect of this land the development has to be undertaken by the Corporate Debt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng developed, Saleable area built and sold. It also deals with the shares to be taken by each of the parties on the JDA & JVA. The future realisable amounts on the projects were also indicated in certain communications. These are not disputed on facts and some of them are contained at page 136 to 145 of the petition. 8. Thereafter, it appears that dissensions set in between the parties resulting in issuance of demand notices dated 06.10.2018, 08.10.2018, 09.10.2018 and 03.11.2018. 9. The notice issued on 03.11.2018, is in Form-3 sub-Rule 1 of Rule 5, referable to Section 8 of the IBC, at Page 160 and marked as Annexure 3. The Respondent/Corporate Debtor has submitted a detailed reply to this notice, on 13.11.2018, and is marked as Annexure 4 at page 291. 10. The petitioner referred to the statutory notice dated 03.11.2018 and to the various claims in term of the MoUs and JVA, which are as follows: "a) Project Hub, Section 83 - Rs. 18,23,63,660/- alongwith an interest @ 24% per annum monthly compoundable starting from 31.03.2014 till the date of payment. b) Project Boulevard, Sector 83-II Rs. 91,77,60,597/- alongwith an interest @ 24% per annum monthly compoundable from 30.04 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the land in question is shown in the recitals of the JDA along with the details of the land and there is also a reference to the MoU of 23.02.2011 which is at page 50. 14. The clause 1 of the JDA, gives the details of the project land and that the petitioner has to hand over the documents relating to the property to the Respondent. 14.1. The clause 4 of the JDA (at Page 52), deals with construction, completion and role of the developer/Corporate Debtor herein. "4.5 Immediately on approval of Building Plans, the Developer shall commence development/construction and complete the construction of the buildings and development work on the said Land in all respects over a period of 36 months from the date of approval of the building plans and start of construction subject to force majeure restraints/restrictions from authority/courts and circumstances beyond the control of the Developers and reasons attributable to the Landowner. 14.2 The cause 7 at page 54 is about "Costs", which is an important clause of the JDA. For better clarity we are reproducing the entire clause: "7.1 All costs relating to Projects Land including costs for obtaining License have been borne by the La ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les realizations for the project, 75% will be passed over to the Landowners. Of sales realizations beyond Rs. 31 Crores, the Landowners shall get a share of 17% till such time the sharing ratio of 39% to the Landowners and 61% to the Developers has been achieved and beyond that the sales realizations would be shared in the agreed ratio of 39% to the Landowners/and 61% to the Developers. The sales realizations shareable between the parties would be excluding the service tax collections. 12.5 That it is agreed between the SPPL and the Developers that the expenses incurred upto 8% of sales revenue on account of marketing brokerage/advertisement etc. shall be borne by Developers entirely. Expenses exceeding 8% of revenue will be borne and paid by Landowners solely: For the purposes of computation of amounts spent on Brokerage/discounts given to customers by the Brokers would be considered as part of Brokerage Expenses. 12.6 That the Car Parking areas shall not be sold and would be utilized by the occupants or visitors to the Project. The receipts on account of car parking charges collected from customers shall be shared between the Developers and the Landowners in the ratio of 25% ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al features, lift wells: lift rooms, staircase, common toilets, circulation area, refuse area and underground and over ground water tanks, electric substation and common facilities. The percentage of super area shall be worked out by the Developers. 12.14 That the Landowner and the Developers shall also be entitled within their rights herein to all permissible future vertical and horizontal exploitation of the Said Land whether by way of additional construction or otherwise as may be legally permitted and the same shall be shared in the ratio of 58% to the Developer and 42% to the Landowner. Both the Developers and the Landowner shall mutually decide on any such future endeavour or opportunity. The cost construction of any additional enhanced FARs shall be borne by the Developer. 12.15 That the Developers/Landowners will open an Escrow Account wherein all collection from the Project will be deposited and the account will be operated under the joint signatures of one signatory from the Developers and one signatory from the Landowner. The Escrow Account will be opened after receipt of sanctions for Building Plans and commencement of construction. 14.4. The clause 14 of the JDA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the time being in force and payable to the Central Government, any State Government or any local authority;" It is fairly admitted by the petitioner counsel that due to the default of service on the part of the Corporate Debtor this petition is being filed. 17. On reading the various clauses of the JDA, which is almost identical in all the three JVAs, 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. It is also to be noticed that in case of dispute, it is a case for Arbitration between the parties in the JVA. We also find that there are clauses in the JVA which state even in respect of interest collected from customers for late payment, which should be shared between lando ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red and Ninety Seven Only) alongwith an interest @ 24% per annum monthly compoundable from 30.04.2015 till the date of payment. c) Ansal Project Heights 1,-An amount of Rs. 120,41,78,064 (Rupees One Hundred and Twenty Crore, Forty One Lakh, Seventy Eight Thousand and Sixty Four only) is due from the Corporate Debtor to the Operational Creditor. The Corporate Debtor has paid an amount of Rs. 113,72,55,038 (Rupees One Hundred and Thirteen, Seventy Two Thousand, Fifty Five Thousand and Thirty Eight only). Therefore, Rs. 6,69,23,026/- (Rupees Six Crores Sixty Nine Lakhs Twenty Three Thousand and Twenty Six Only) alongwith an interest @ 24% per annum monthly compoundable from 30.09.2015 till the date of payment d) Ansal Project Heights 2 - An amount of Rs. 86,04,73,327 (Rupees Eighty Six Crore Four Lakh Seventy Three Thousand Three Hundred and Twenty Seven only) is admittedly due from the Corporate Debtor to the Operational Creditor. The Corporate Debtor has paid an amount of Rs. 71,21,80,671 (Rupees Seventy One Crore, Twenty One Lakh, Eighty Thousand, Six Hundred and Seventy One only). Therefore, Rs. 14,82,92,656/- (Rupees Fourteen Crores Eighty Two Lakhs Ninety Two Thousand Six Hund ..... X X X X Extracts X X X X X X X X Extracts X X X X
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