TMI Blog2022 (11) TMI 703X X X X Extracts X X X X X X X X Extracts X X X X ..... f a demand notice before filing the application under Section 9 of the Code. Not only that the demand notice in the case of Xrbia Eiffel City II i.e. CA (AT) (Ins) No. 1029 of 2021 is not replied by the Respondent but also reply to the other demand notices were filed much after the period prescribed under the Code. Be that as it may, the Adjudicating Authority has dismissed the application, filed under Section 9 of the Code by the Appellant, on the ground that there was a pre-existing dispute which was raised before filing the petition and was clearly intimated in the email dated 01.03.2017. The perusal of the said email dated 01.03.2017 does not make out any head or tail and there is no specific finding recorded by the Adjudicating Authority explaining as to how it has reached to the conclusion that the said email raised a dispute already existing between the parties. The impugned order is in violation of the principle of natural justice because the impugned order is a non-speaking order - the matter is remanded back to the Adjudicating Authority to decide them afresh by giving reasons and passing a speaking order - appeal allowed. - Company Appeal (AT) (Ins.) No. 1029 , 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 61,69,488/-. Agreement dated 09.03.2016 was entered into between Xerbia Developers Ltd. (Developers) and Indiabulls Distribution Services Ltd./Appellant (Consultant) as per which the Appellant was to market the units of the project Xrbia Vangani of the Corporate Debtor. The Appellant was to receive brokerage on account of the booking of the units for sale to the prospective buyers. The demand notice dated 19.02.2019, in Form-3, was served in compliance with Section 8 of the Code to which reply was filed by the Respondent on 05.08.2019. CA (AT) (Ins.) No. 1031 of 2021 4. The Appellant filed an application under Section 9 of the Code before the Adjudicating Authority bearing CP (IB) No. 4421/IBC/MB/2019 for a total claim of Rs. 1,67,662/-. The claim is based upon an Agreement dated 09.03.2016, entered into between Xrbia Abode 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 Xrbia Abode City . The Appellant served a demand notice dated 19.02.2019 in, Form-3, in compliance with Section 8 of the Code which was replied by the Respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all the five cases are the same, therefore, it would be relevant to refer to Para 6, 7 10 of the agreement which highlights the manner and extent in which the Appellant would be entitled to its brokerage. 6. The Consultant shall be entitled to use the Collaterals for offering to book the Unit(s) for the prospective customers and shall be entitled to the commission/brokerage in the event of such customer(s) bookings the Unit(s) which is specified in ANNEXURE-C, being 8.5.%. of Sale Consideration of the Unit booked for a customer by the Consultant in the Project exclusive of the Service Tax payable under the law prevailing at that time (Brokerage). The aforesaid Brokerage shall become due and payable to the Consultant by the Developer as soon as the Consultant procures a booking and shall be disbursed in the manner as specified in ANNEXURE-D. The service tax on the aforesaid Brokerage shall be levied separately the Brokerage shall be subject to TDS, as applicable from time to time. The Developer undertakes to issue/handover cheque(s) in favour of Consultant towards discharge of its Obligation. It is agreed undertaken by the Developer that it shall issue cheque(s) towards d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sale Consideration. However, in the event the customer/buyer/purchaser has paid less than Forty percent (40 %) of the Sale Consideration in case of Self Funded Customers AND in case of Identified Customers Identified Customers availing Finance Facility then if customer/buyer/purchaser has paid less than Twenty percent (20 %) of the Sale Consideration, then the brokerage, if any, paid for such Unit(s) shall be adjusted from the brokerage due to the Consultant on rebooking of such Unit(s) or brokerage due on any other unit in the said project of the Developer. 10. The Appellant, in all the five cases, served demand notice dated 19.02.2019 as prescribed under Section 8 of the Code. In the case of Xrbia Eiffel City II, the Respondent did not file the reply to the demand notice whereas in all other cases, the reply was filed after a period of six months. The Adjudicating Authority has dismissed the application, subject matter of all five appeals, on the ground that there was a pre-existing dispute between the parties which has been clearly intimated vide email dated 01.03.2017. The said email has been made a part of the memorandum of appeal as Annexure A-7 and is reproduced as un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able assistance. 14. It is an admitted fact that the genesis of their relationship as a developer and consultant is the agreement dated 09.03.2016 as per which the Respondent was liable to pay consultation charges to the Appellant for the booking of the unit(s) in terms of the clauses of the agreement much less clause 6 and 10 which we have reproduced hereinabove. The Appellant has claimed separate amount in separate applications on the basis of number of units booked in the separate projects and also claimed their dues by way of a demand notice before filing the application under Section 9 of the Code. Not only that the demand notice in the case of Xrbia Eiffel City II i.e. CA (AT) (Ins) No. 1029 of 2021 is not replied by the Respondent but also reply to the other demand notices were filed much after the period prescribed under the Code. 15. Be that as it may, the Adjudicating Authority has dismissed the application, filed under Section 9 of the Code by the Appellant, on the ground that there was a pre-existing dispute which was raised before filing the petition and was clearly intimated in the email dated 01.03.2017. The perusal of the said email dated 01.03.2017 does not ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
