TMI Blog2023 (1) TMI 551X X X X Extracts X X X X X X X X Extracts X X X X ..... erest of loan was to be adjusted by the developer through the escrow account till such time the entire interest is repaid/adjusted out of the owner share of revenue of the saleable areas - The evidence is there on record of the transfer of the amount in question from the account of the developer to the account of the owner and also the payment of interest by the owner to the developer. It is also a fact on record that the owner stopped the payment of interest and as a matter of fact the amount advanced by the Appellant to the Respondent, used for the purpose of purchasing the land by the owner in its name and the project has not been started at all because the owner failed to take necessary licence for change of land use, triggered the application filed under Section 7 of the Code for resolution of the amount of Rs. 6 Crores advanced as a loan and Rs. 1 Crores as refundable security. The definition of debt and default which is the only thing required for the purpose of maintaining the application under Section 7 of the Code, is satisfied - the Adjudicating Authority has committed a patent error in misreading and mis-appreciating the evidence available on record while dismissing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... monthly and Rs. 6 Crores towards loan with interest @ 24% per annum payable monthly. The Appellant has allegedly paid Rs. 3 Crores vide cheque no. 233452 dated 03.09.2012, Rs. 2 Crores vide cheque no. 233455 dated 03.10.2012 and Rs. 2 Crores vide cheque no. 864177 dated 07.01.2013, a total sum of Rs. 7 Crores out of which Rs. 6 Crores was towards loan and Rs. 1 Crores was refundable deposit. It is also alleged that the said cheques were drawn in the bank account bearing no. 00602560011718 maintained by the Appellant with HDFC Bank, Fort Nanik, Motwani Marg, Mumbai and was duly debited from its account on 04.09.2012, 03.10.2012 and 07.01.2013 and credited to the account of the Respondent. It is further alleged that as per the term sheet, Rs. 6 Crores was advanced as inter corporate deposit (ICD) for a period of 180 days with interest payable @ 24% per annum against security of the post dated cheques, mortgage over the property besides the guarantees. It was also decided to open an escrow account by virtue of escrow agreement which was executed on 04.08.2014. 3. The Appellant filed an application under Section 7 of the Code on 16.05.2019 in the prescribed form 1, in which it is av ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oncile the extremely different terms of the two different documents. This conduct goes against the Appellant s contentions, because the Applicant failed to reconcile the terms of the agreement with those of the term sheet even when it had a clear opportunity to do so. Thus, on one hand the Applicant claims that the term sheet should prevail and on the other hand the Applicant has furthered the contradiction between the agreement and the term sheet. Such doubtful and uncertain conduct on part of the Applicant does not inspire this Tribunal s confidence in the Applicant s contentions regarding the terms of the loan and repayment of the same. Hence, due to the Applicant s failure to clearly establish the terms of advancing the money, the repayment of the money and default by Respondent, the present application is dismissed with no costs. 6. Counsel for the Appellant has submitted that in order to maintain the application under Section 7 of the Code, the Applicant has to establish that there is debt and default. In this regard, it is submitted that both the term sheets of 02.09.2012 and 31.12.2012 categorically shows that the Appellant had advanced a loan of Rs. 6 Crores for a pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion and has to be read alongwith the collaboration agreement which is the basic document. It is submitted that the term sheet etc flows from the collaboration agreement. It is further submitted that the Adjudicating Authority has rightly held that there is difference between the term sheet and the collaboration agreement and both are in force because the collaboration agreement still subsist and has not been terminated as yet, the Adjudicating Authority could not repose its confidence in it and has rightly recorded a finding that the Appellant has failed to establish the terms of advancing the money, its repayment and default, therefore, once the advancement of the loan and the default is not established, the application under Section 7 has rightly been dismissed. He has also argued that there is difference between two demand notices dated 05.09.2017 and 02.04.2019 because in the notice dated 05.09.2017 there is a reference of collaboration agreement whereas in the notice dated 02.04.2019 reference has been made to the term sheet and the guarantee etc. 7. We have heard Counsel for the parties and perused the record with their able assistance. 8. There is no denial of the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X
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