TRI – PARTITE LOAN AGREEMENT
This Tripartite Loan Agreement (Herein after referred to as the “Agreement”) has been made, prepared and executed on this ... day of _____, 201_, in Mumbai, Maharashtra
AMONG AND BETWEEN
....................................................., an Adult Indian Inhabitant S/o/W/o/D/o Mr.............. having PAN #(..............) and Aadhar Number _____________, having address at ....................................................., Mumbai- 400 069, (Hereinafter referred to as the “Investor”) which expression shall, unless it be repugnant to the context or meaning thereof, be deemed to mean and include all its associates, directly or indirectly involved in the business, its successors in office, administrators and permitted assigns of the FIRST PART;
....................................................., an Adult Indian Inhabitant S/o/W/o/D/o Mr.............. having PAN #(..............) and Aadhar Number _____________, having address at ....................................................., Mumbai- 400 069, (Hereinafter referred to as the “Borrower”) which expression shall, unless it be repugnant to the context or meaning thereof, be deemed to mean and include all its associates, directly or indirectly involved in the business, its successors in office, administrators and permitted assigns of the SECOND PART;
BIGWIN INFOTECH PRIVATE LIMITED, a Private Limited Company registered and incorporated within the provisions of the Companies Act, having its registered office addressed at 113, Udhyog Bhawan, Sonawala Road, Goregaon (East), Mumbai- 400063, (Hereinafter referred to as the “BigWin”) which expression shall, unless it be repugnant to the context or meaning thereof, be deemed to mean and exclude all its associates, directly or indirectly involved in the business, its successors in office, administrators and permitted assigns of the THIRD PART;
(That for the sake of brevity and convenience, the First Party, Second Party and Paisadukan shall collectively hereinafter be referred to as the “Parties” to this Agreement)
- The Investor seeks to collaborate with BigWin with an intention of investing an amount, duly specified herein this Agreement, in and to the Online peer to peer digital marketplace/lending and/or borrowing platform /Paisadukan/BigWin for the purpose of lending the same to the Borrowers through active facilitation by BigWin through its Peer to Peer platform.
- The Borrower seeks to collaborate with BigWin with an intention of borrowing/acquiring a debt/loan, duly specified herein this Agreement, from the Investor vide active facilitation from the Online peer to peer digital marketplace/lending and/or borrowing platform /Paisadukan/BigWin through its Peer to Peer platform.
- BigWin Infotech Pvt. Ltd. is a private limited company involved in the business of Peer to Peer (P2P) lending market as Non-Banking Financial Company operating from a platform namely “Paisadukan” (Hereinafter referred to as “Online peer to peer digital marketplace/lending and/or borrowing platform /Paisadukan/BigWin”) which is duly recognised by the Reserve Bank of India.
- That each Party herein is competent to execute this Agreement, and each Party has taken all approvals required under the Law and other actions for the execution of this Agreement and the execution hereof constitutes legal, valid and binding obligations of both Parties; and that there are no suits, actions or proceedings against either Party pending before any Court of Law, which might affect either Party’s performance of the obligations hereunder.
- That the Parties hereto are desirous of entering into this Agreement to record their understanding, terms and conditions thereof as hereinafter appearing and as such have hereby offered their acceptance to the considerations of either Party to this Agreement.
IN CONSIDERATION OF THE MATTERS DESCRIBED ABOVE AND OF THE MUTUAL BENEFITS AND OBLIGATIONS SET FORTH IN THIS AGREEMENT, THE RECEIPT AND SUFFICIENCY OF WHICH CONSIDERATION IS HEREBY ACKNOWLEDGED, IT IS THEREFORE AGREED TO, DECLARED AND RECORDED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS:-
- DEFINITIONS AND INTERPRETATIONS
- In this agreement (including any recitals, annexure, schedules or exhibits attached thereto) except where the context otherwise requires, the following words and expressions shall have the following meaning:-
- “Online Peer to Peer Digital Marketplace/Lending and/or borrowing platform” means the internet/online peer to peer digital marketplace/lending platform operated by us at “www.paisadukan.com” for the purpose of matching Borrowers with Lenders/Investors;
- “Peer To Peer Lending and/or borrowing platform” means an intermediary providing the services of loan facilitation via online medium or otherwise, to the participants;
- “RBI” means the Reserve Bank of India constituted under section 3 of the Reserve Bank of India Act, 1934 (2 of 1934);
- “Participant” means a person who has entered into an arrangement with an NBFC-P2P to lend on it or to avail loan facilitation services provided by it;
- “NBFC-P2P”means “Non-banking financial company - Peer to Peer Lending and/or borrowing platform”(NBFC-P2P) means a non-banking institution which carries on the business of a Peer to Peer Lending and/or borrowing platform;
- “Act” means the Companies Act, 2013, RBI P2P Regulations under the Reserve Bank of India Act, 1934 (as amended thereon) and Foreign Exchange Management Act, 1999 (as amended thereon);
- “Eligible Listed Borrower” means a borrower whose verification is completed by Paisadukan and is a registered Borrower;
- “Eligible Listed Investor” means an Investor/Lender whose verification is completed by Paisadukan and is a registered Investor/Lender;
- “Borrower” is an individual who satisfies the following criteria:
- Indian resident as per FEMA regulations
- Above age of 18 years.
- Should be an Earning Member
- Have an identity proof issued by any government authority
- Have income proof
- Have residence proof
- Have a valid bank account
- Have credit score as per the Online peer to peer digital marketplace/lending and/or borrowing platform /Paisadukan/BigWin
- “Investor” is an individual who satisfies the following criteria:
- Indian resident as per FEMA regulations
- Above age of 18 years
- Have an identity proof issued by any government authority
- Have a valid bank account
- “Investor” is a firm or company or financial institution or other who satisfies the following criteria:
- Registered as per criteria of RBI rules and regulation
- Not blacklisted company or firm
- Have a registration certificate provided by concerned authority
- Have a valid bank account
- Borrower shall produce the following documents as mentioned herein under as “List of Documents”:
- Documents Required for Salaried Individual
- Address Proof: Leave and License/ Registered Rent Agreement/Utility Bill (up to 3 months old), Passport/Aadhar card
- Identity Proof: Passport/ Driving License/ Voter ID/ PAN
- Income Proof: 3 month payslips, 2 years Form 16, Copy of Income Tax PAN
- Bank Statement: 6 months bank statement that shows salary from the employer and any EMI paid for outstanding debit
- Passport size photographs
- Copy of Cancelled Blank Cheque
- Documents Required for Self Employed– Professionals
- Identity Proof: Passport/ Driving License/ Voter ID/ PAN
- Address Proof: License/ Registered Rent Agreement/ Utility Bill
- Office Address Proof: Property Documents, Utility Bill
- Office Ownership Proof: Property Documents, Utility Bill, Maintenance Bill
- Business Existence Proof: 3 years old Saral Copy, the Company Registration license, Shop Establishment Act
- Income Proof: Latest 3 years Income Tax Returns including Computation of Income, Profit & Loss Account, Audit Report, Balance Sheet, etc.,
- Bank Statement: Past 1 year bank statement
- Passport size photograph
- Copy of Cancelled Blank Cheque
- Documents Required for Senior Citizens/Pensioners:
- Passport size photograph
- Photo Identity Proof: Passport/ Driving License/ Voter ID/ PAN
- Residence Address Proof: License/ Registered Rent Agreement/ Utility Bill
- Age Proof: Pan Card or Passport
- Income Proof: Pension Returns Or Bank Statement
- Copy of Cancelled Blank Cheque
- “Scanned Document” means, Lender and Borrower shall scan and store documents in a digital format in form of electronic documents from best possible device as permitted by law; the scanned documents must remain accessible and legible, the person scanning the said documents, shall provide “Certificate” under section 65 B of the Indian Evidence Act 1872 , as and when required;
- “Photographs” mean photograph with negatives and photographic including Digital photographs which stored inside the digital camera itself is an electronic record under Section 2(t) of the IT Act, It is images stored in an electronic form, so this is a “document” under Section 3 of the Evidence Act Digital photographs here shall be treated as electronic records in electronic form under section 65 B of Indian evidence act,1872;
- “ACH” means Automated Clearing House (ACH) which is an electronic network that is used for financial transactions. An ACH is a transfer that occurs through the Automated Clearing House. It processes large volumes of transactions in batches; therefore time of delivery is not instant. ACH system processes both credit and debit transfer payments. All the procedures and guidelines that administer the network are decided by National Automated Clearing House Association (NACHA) which is a national association of depository financial institution members. ACH in India is operated by the Reserve Bank of India (RBI) at some centres and by commercial banks at the some centres;
- “GST” means Goods and Services Tax under GST Act or Goods & Service Tax Act India 2017;
- “SMS” means one unit of the Short Message Service defined by the GSM/CDMA protocol to be sent to a mobile device. The units consumed for any request submitted will be calculated by rounding up the division of submitted number of characters per request per mobile device by 153 for a multipart and 160 characters for a single part;
- “Transactional alert/message” means any alert/message, which is not promotional;
- “Reference” means the act of introducing with reference to borrower by third party/individual/person under a procedure set forth by BigWin Infotech Private Limited;
- “Rating” means rating given by Paisadukan based on its proprietary algorithm which is calculated on the basis of Credit rating of an individual based on the computed credit score;
- “Listing” is a borrower/ Investor public profile page that shows an interest by either Investor/ borrower to offer/ take loans through Paisadukan and this can be viewed by all registered users on Paisadukan;
- “Borrower Listing” is a loan request made by Borrower on Paisadukan portal;
- ”Listing Period” is a period of 10 (Ten) days for a listed borrower;
- "Additional Listing Period" is a period of 7 (seven) continuous days (including holidays) after the said listing period of 10 days which can be granted to a borrower if he/she has requested for additional listing period provided that he has received not less than 50 percent of the amount of loan as requested on the platform by listing his/her loan request. This clause is applicable to listed borrowers only;
- “Person” means an individual or a company/firm or financial institution registered as per rule;
- “Bank” means the bank account details provided by borrower in this agreement with details of bank branch, full address and IFSC code (IFSC stands for Indian Financial System Code. It is an 11-digit alpha-numeric code), where borrower maintains its account , the said bank account details provided by borrower in this agreement;
- “Bank statement” means bank statement or account statement is a summary of financial transactions which have occurred over a given period on a bank account held by borrower with a Bank , where the borrower maintain its account;
- “Aadhaar” means a 12-digit unique identification number issued by the government of India to every individual resident of India based on their biometric and demographic data. The data is collected by the Unique Identification Authority of India (UIDAI), a statutory authority established in January 2009 by the government of India, under the jurisdiction of the Ministry of Electronics and Information Technology, following the provisions of the Aadhaar (Targeted Delivery of Financial and other Subsidies, benefits and services) Act, 2016;
- “PAN” means a unique, 10-character alpha-numeric identifier, issued to all judicial entities identifiable under the Indian Income Tax Act, 1961. Permanent Account Number, a code that acts as an identification for individuals, families and corporates (Indian and Foreign as well), especially those who pay Income Tax. It is issued by the Indian Income Tax Department under the supervision of the Central Board for Direct Taxes (CBDT), Government of India and it also serves as an important proof of identification.
- “EMI" means equated monthly installments of amounts payable by the Borrower to the Lender/Investor in respect of the loan and comprising of principal amount of the Loan and interest thereon. Such EMI shall be subject to be rounded off to the next Rupee;
- "Interest Rate" means the rate at which the BigWin shall compute and apply interest on the Loan, as per terms and conditions of the agreement;
- "Month" means a month of a year as per the calendar year and each month shall begin on the first day of such month;
- "Law" includes any constitution, statute, law, rule, regulation, ordinance, judgement, order, decree, authorisation, or any published directive, guideline, requirement or governmental restriction having the force of law, or any determination by, or interpretation of any of the foregoing by, any judicial authority, whether in effect as of the date of the Application Form(s) or thereafter and each as amended from time to time;
- “Loan Amount” means the amount of the financial assistance provided under the Loan Agreement to be executed;
- “Disbursement” means any payment of the Loan Amount, or any part thereof, made by Online peer to peer digital marketplace/lending and/or borrowing platform /Paisadukan/BigWin in terms of Loan Agreement. All disbursements to be made by Online peer to peer digital marketplace/lending and/or borrowing platform /Paisadukan/BigWin under or in terms of this Agreement shall be in the name of the Borrower, and shall be made by way of cheque crossed as "A/c payee only" or any other mode i.e. RTGS, NEFT, direct transfer etc., at sole discretion of Online peer to peer digital marketplace/lending and/or borrowing platform /Paisadukan/BigWin;
- “Disbursement of Funded amount” means the amount which Online peer to peer digital marketplace/lending and/or borrowing platform/Paisadukan/BigWin has approved after scrutinizing the credit score/worthiness of the Registered borrower. The same amount disbursed after deducting the processing fees and any other charges towards such disbursement of approved amount.
- “RTGS” means (Real Time Gross Settlement) an electronic form of amount/funds transfer where the transmission takes place on a real time basis. The beneficiary account receives the funds/amount transfer on Real time basis.
- “NEFT” means (National Electronic Funds Transfer) is an Indian system of Electronic Transfer of money from one bank or bank branch to another. Customers with Internet banking accounts can use the NEFT facility to transfer funds nationwide on their own. Funds can also be transferred via NEFT by customers by walking into any bank branch (which is NEFT-enabled) and leaving relevant instructions for such transfer - either from their bank accounts or by payment of cash.
- “Wallet” means permissible virtual balance allocated to Investor for funding borrower through Paisadukan.com;
- “Borrower Dashboard” means the section of the Website which can only be accessed by the borrower using his/her own username and password through which they can update their details, view loan listings, request loan parts, and view details of their Portfolio;
- “Investor Dashboard” means the section of the Website which can only be accessed by Lender/Investor using only Lender/Investor’s own username and password through which they can update their details, view loan listings and view their Portfolio;
- “Processing/Transaction charges/fees ” means charges/fees based on the principal amount disbursed through Paisadukan.com. All fees and charges, mentioned in the FEES & CHARGES will attract Goods and Services Tax and the said fees & charges are subject to change time to time. The BigWin/Company reserves the right to make changes in the fees & services. The Processing Fee charged shall vary from amount to amount. The break-up are as under:
Particulars (Rs. ’00,000)
Percentage Processing Fees
Upto and equal to Rupees 2 Lakh
More than Rupees 2 Lakh upto Rupees 5 Lakh
More than Rupees 5 Lakh upto Rupees 10 Lakh
- “Insurance“ means for the purposes of Security from Investor’s perspective Paisadukan will be insuring the disbursed amount, the premium for the same will be recovered from the Borrower. For the purpose of same insurance premium and processing fees shall be deducted prior to disbursement of the loan amount.
- Provided that the Security for the purpose of clause 1.1.41 shall mean the Security with respect to Borrower’s health and accidental insurance subject to the terms and conditions mentioned in the Insurance Offer Document.
- “CRIF High Mark Credit Information Services Pvt. Ltd ” means a credit bureau based in Mumbai. It keeps a record of loan repayment history on credit facilities extended to an individual across the board.
- “E-mail” means Electronic Mail, or Electronic Messages is a system that allows text-based messages to be exchanged electronically, such as between computers or cell phones. It is an electronic store and forward method of composing, sending, storing, and receiving messages over electronic communication systems. It includes emails, SMS, MMS etc. of messages sent vial social networking sites, like whatsapp, twitter etc. Under the provisions of Section 88A, there are presumptions as to such messages. Section 88, 88A, 114(f) of the in the Indian Evidence Act, 1872 read with Section 2(t) of Information Technology Act 2000 are relevant sections for sending and receipt of email and its proof.
- “Borrowers Escrow Account” means a contractual arrangement in which BigWin shall receive and repay the amount to the Investor. For the purpose of this Agreement Borrowers Escrow Account “BIGWIN INFOTECH PRIVATE LIMITED-BORROWER REPAYMENT ESCROW ACCOUNT”
- “Investors Escrow Account” means a contractual arrangement in which BigWin shall receive the amount from the Investor/Lender. For the purpose of this Agreement Investor Escrow Account “BIGWIN INFOTECH PRIVATE LIMITED-LENDER FUNDING ESCROW ACCOUNT”
- “Legal Counsel ” means a counsellor at law who shall give advice and deal with the various issues, particularly in legal matters arising out of this Agreement. The parties hereto this agreement shall mutually decide the Legal counsel to be appointed.
- PURPOSE OF THIS AGREEMENT:
- BigWin Infotech Private Limited is a P2P lending company having a Online peer to peer digital marketplace/lending and/or borrowing platform /Paisadukan/BigWin named Paisadukan.com (website) wherein it permits investors to lend money and borrowers to borrow money.
- A Borrower is limited to borrow not more than Rs. 50,000/- (Rupees Fifty Thousand Only) from a single Investor. The aggregate amount of loan that a borrower is limited to borrow is Rs.10,00,000/- (Rupees Ten Lakh Only) across all P2Ps at any point of time.
- It is further clarified that a Borrower can borrow up to Rs.50,000/- (Rupees Fifty Thousand Only) from 20 Investors, which will be considered as the maximum amount that a borrower can raise from the investors; or
- The above cap is subject to change on availability of funds.
- Similarly a investor can lend an aggregate amount to a single borrower which is limited to Rs.50, 000/- (Rupees Fifty Thousand Only) and across all P2Ps at any point of time to a maximum amount not exceeding Rs.10, 00, 000/- (Rupees Ten Lakh Only).
- It is further clarified that a Lender can lend up to a maximum of Rs.10,00,000/- (Rupees Ten Lakh Only) to 20 Borrowers, which will be considered as the maximum amount that a Lender can lend to the Borrowers; or
- The above cap is subject to change on wants of funds.
- Both the investor and borrower wish to engage each other for the purpose of lending and borrowing by the use of the Online peer to peer digital marketplace/lending and/or borrowing platform/Paisadukan/BigWin facilitated for the purpose of P2P lending. That the borrower shall at any time after registration may apply for the loan by using the P2P lending Online peer to peer digital marketplace/lending and/or borrowing platform /Paisadukan/BigWin.
- Investor and borrower need to understand that BigWin is a facilitating Online peer to peer digital marketplace/lending and/or borrowing platform /Paisadukan/BigWin where both investors and borrowers meet for lending and borrowing money. The parties understand that BigWin is not engaged or is responsible for either lending or ensuring that the borrower shall repay the borrowed amount in future.
- That BigWin shall verify credit score of the borrower based on financial documents provided by the borrower for the grant of loan by the investor through the Online peer to peer digital marketplace/lending and/or borrowing platform /Paisadukan/BigWin. That the borrower shall pay rate of interest on the sum borrowed duly specified by the Online peer to peer digital marketplace/lending and/or borrowing platform /Paisadukan/BigWin once the credit score of the borrower is verified by BigWin. That upon confirmation from the borrower the Online peer to peer digital marketplace/lending and/or borrowing platform /Paisadukan/BigWin would facilitate the loan to the borrower from the investor.
- The transactions between the borrowers and investors will be facilitated through two escrow accounts as specifically enumerated under clause 1.1.44 and 1.1.45 in the bank namely IDBI Bank, addressed at Mittal Tower, Ground Floor, C-Wing, Nariman Point, Mumbai- 400021 which shall be managed and operated by a trustee by the name of ITSL (IDBI Trusteeship Services Limited), for and behalf of BigWin. The two escrow accounts created during the process:
- Borrower Repayment Escrow Account
- Lender Funding Escrow Account
- All fund transfers shall be through and from bank accounts and cash transaction is strictly prohibited.
- The Parties duly agree and understand that prior to obtaining/acquiring loan/credit from the Investor vide the Online peer to peer digital marketplace/lending and/or borrowing platform /Paisadukan/BigWin, the Borrower shall duly issue Three (03) Post dated cheques in favour of the Investor which shall be handed over to BigWin to be treated as Cheque (s) issued against the enforced legal liability (against non payment for a period exceeding Two  months) of the Borrower as specifically defined within the provisions of the Negotiable Instruments Act, 1881, and other relevant and appropriate provisions of law.
- As and when the investor shall advance the money, the investor through his bank shall transfer the money to investors escrow account and then from investors escrow account the funds will be transferred to the account designated by the borrower, to receive these funds. Similarly, the account designated by the borrower would be debited to transfer the Equated Monthly Installment (hereinafter shall be referred to as “EMI”) to the Investor/Lender.
- The borrower shall repay the loan amount on EMI basis, starting on or before every 5 th day of each month. The first EMI shall be scheduled for payment by the borrower on the month immediately following the month in which the loan was advanced to the borrower.
- The borrower shall pay EMI and penal interest if there is any default in paying the EMI towards the loan advanced to the borrower by the investor.
- BigWin will charge a loan processing fee in a range of 03-05% to be levied based on the loan size as specifically enumerated under clause 1.1.40 hereto this agreement.
- Any default by the borrower in payment of his enforceable legal liability towards interest and/or principal would entail an additional default penal charge of Rs. 100/- (Rupees One Hundred Only) per Investor for delays up to 10 days and Rs. 250/- (Rupees Two Hundred and Fifty Only) per Investor for delays more than 10 days on the EMI amount due and payable from the date of default till the date of final realisation.
- That the borrower agrees and understands that the PDC’s issued by him/her is against the legally enforceable liability and the same shall be used by BigWin to remit the loan amount to the investor if in case he makes any default in payment of the EMI’s plus principal amount.
- The borrower also without prejudice unconditionally agrees that the EMI’s shall be prefixed by the Online peer to peer digital marketplace/lending and/or borrowing platform /Paisadukan/BigWin in respect of the disbursement of the loan amount by the borrower to the investor.
- All parties to this agreement understand and agree that, any failures in transfer of funds either to the borrower or to the Investor on account of technological failure, either by Paisadukan, or by Drawee bank or Drawer Bank, no Party to this agreement would be liable for making penal interest pay-out to the other.
- OBLIGATION OF THE BORROWER:
- The Borrower duly agrees and understands that for the purpose of registering itself/himself/herself on the Online peer to peer digital marketplace/lending and/or borrowing platform /Paisadukan/BigWin, the Borrower shall provide all relevant documents (s) and/or fulfil all criteria (s) as laid down by BigWin.
- The borrower is bound to pay the …… amount (i.e. EMI) on......…instalments for........% rate of interest on 5th day of every month. In case of a holiday, the EMI shall be collected on the next working day and the mode of payment shall be……
- The Borrower acknowledges and understands that in order to avail the loan/credit services available on the Online peer to peer digital marketplace/lending and/or borrowing platform /Paisadukan/BigWin, the Borrower shall duly register with BigWin and upon approval the Borrower shall be entitled to avail the loan/credit from the registered Investors on the Online peer to peer digital marketplace/lending and/or borrowing platform /Paisadukan/BigWin.
- The Borrower duly agrees and understands upon confirmation of BigWin; the Borrower can list his/her requirements on the Online peer to peer digital marketplace/lending and/or borrowing platform /Paisadukan/BigWin, through BigWin. The Borrower cannot view the other borrower/ investor listings. Borrower's listing shall be displayed on the Online peer to peer digital marketplace/lending and/or borrowing platform /Paisadukan/BigWin and he/she can receive offers or make requests only on successful verification.
- The Borrower duly agrees to receive SMS alert posted by BigWin on any new registrations, loan closures, repayments, offers on loans, and request from other the investors and the Online peer to peer digital marketplace/lending and/or borrowing platform /Paisadukan/BigWin.
- The Borrower duly agrees to notify BigWin regarding any change in his/her mobile phone numbers. The registered Borrower’s are allowed to opt out from receiving SMS alert by notifying BigWin in writing.
- The Borrower duly acknowledges and agrees that BigWin is a Facilitating Online peer to peer digital marketplace/lending and/or borrowing platform /Paisadukan/BigWin providing a Platform for the Borrower’s to avail loan/credit services. The Borrower understands that Paisadukan/Platform shall at no point of time be liable for any/all financial obligations and/or disputes arising out hereof in this Agreement.
- The Borrower duly agrees and understands that he/she is should satisfy certain criteria (s) for availing/acquiring the loan/debt, they being, he/she should be 18years of age, should possess an identity proof, should possess a valid bank account and should be an Indian as specified and/or defined under clause 2(v) Foreign Exchange Management Act, 1999.
- The Borrower duly agrees and understands he/she shall repay the debt/loan amount within a maximum period of 36 (Thirty Six) months from the date of acquiring the loan/debt from the Investor vide the Online peer to peer digital marketplace/lending and/or borrowing platform /Paisadukan/BigWin.
- OBLIGATION OF THE INVESTOR:
- The Investor duly agrees and understands that for the purpose of registering itself/himself/herself on the Online peer to peer digital marketplace/lending and/or borrowing platform /Paisadukan/BigWin the Investor shall provide all relevant documents (s) and/or fulfils all criteria (s) as laid down by BigWin.
- The Investor acknowledges and understands that in order to advance loan/credit services on the Online peer to peer digital marketplace/lending and/or borrowing platform /Paisadukan/BigWin, the Investor shall duly register with BigWin and upon approval the Investor shall be entitled to advance loan/credit to the registered Borrowers on the Online peer to peer digital marketplace/lending and/or borrowing platform /Paisadukan/BigWin.
- The Investor duly acknowledges and agrees that BigWin is a Facilitating Platform providing a Platform for the Investor’s to provide loan/credit services. The Investor understands that Paisadukan/Platform shall at no point of time be liable for any/all financial obligations and/or disputes arising out hereof in this Agreement.
- The Investor duly agrees and understands that he/she is should satisfy certain criteria (s) for being eligible to lend, that being, he/she should be 18years of age, should possess an identity proof, should possess a valid bank account and should be an Indian as specified and/or defined under clause 2(v) Foreign Exchange Management Act, 1999.
- OBLIGATION OF BIGWIN/PAISADUKAN:
- The Parties duly agree and understand that BigWin shall be a Facilitator to the entire transaction as specifically expressed and enumerated within the guidelines of the Reserve Bank of India and other applicable laws of the Country. Any breach committed by the Investor/Borrower shall not be attached and/or associated with BigWin in any manner whatsoever.
- The borrower’s credit rating shall be as per the credit rating awarded to the borrower by the CRIF High Mark. If the borrower fails to qualify, in terms of his credit rating awarded to him/ her by the CRIF High Mark, the borrower shall not be advanced any money. The interest to be levied by the BigWin shall depend on the credit score of the borrower.
- BigWin shall not raise any deposits as expressly defined within the provisions of section 451 (bb) of the Companies Act, 2013.
- BigWin shall not provide any credit enhancement and/or credit guarantee and shall strictly prohibit lending either through itself or through the platform.
- BigWin shall not facilitate or permit any secured lending linked to the platform, that is, only clean loans shall be permitted.
- BigWin shall not hold on its own balance sheet, funds received from lenders for lending and/or funds received from borrowers for servicing loans.
- BigWin shall not cross sell any product except for loan specific insurance products. Further BigWin shall not permit International flow of funds.
- BigWin shall undertake due diligence on the lenders and borrowers and further undertake credit assessment and risk profiling of the borrowers and disclose the same to their prospective lenders.
- BigWin shall duly obtain prior and explicit consent of either the borrower and/or lender to access its credit information.
- BigWin shall provide assistance in disbursement and repayments of loan amount. In addition, BigWin shall render services for recovery of loan originated on the platform.
- BigWin shall put in place a Board approved policy to address participant grievances/complaints. Complaints shall be handled/disposed of by BigWin within such time and in such manner as provided for in its Board approved policy, but in any case not beyond a period of one month from the date of receipt of grievance/complaint.
- The lending and borrowing Platform, Paisadukan, shall comply with all the laws laid down by RBI, for P2P lending, and any other applicable laws of the land.
- BigWin further agrees and understands that in case of any default/breach committed by either the borrower or the investor; BigWin shall duly provide a legal counsel to the non-defaulting party the choice of which shall solely be at the disposal of the non defaulting party. Shall the non defaulting party desires to appoint the legal counsel duly provided by BigWin, then in such circumstance, the non defaulting party shall execute a Power of Attorney in and to the name of BigWin for necessitating legal actions against the defaulter, the cost (s) to which shall duly be borne by the non defaulting party, which shall include the cost (s) involved in executing the Power of Attorney and/or other requisite documents as deemed important within the provisions of law.
- BigWin shall at no point of time be liable for any/all financial obligations and/or disputes arising out hereof in this agreement.
- BigWin shall duly provide a grievance cell/board for the purpose of solving any/all queries and/or complains of the borrowers and/or investors.
- BREACH/DEFAULT ON PART OF BORROWERS/INVESTORES:
- The Parties duly agree and understand that shall the Borrower fail to repay the loan/credit within the specified time frame, he/she shall be subject to payment of late fee of Rs. 100/- (Rupees One Hundred Only) per Investor for delays up to 10 days and Rs. 250/- (Rupees Two Hundred and Fifty Only) per Investor for delays more than 10 days in accordance to BigWin’s guidelines. Moreover shall the borrower default in making any payment whatsoever, for successive two months and thereafter, BigWin shall be entitled to deposit the PDC’s, received from the borrower against his/her legally enforceable liability.
- The Borrower duly agrees and understands that shall the Cheques issued against the existing enforced legal liability, the Investor and/or BigWin (through authorization by the Investor) shall be entitled to initiate Criminal as well as Civil proceedings against the Borrower towards default in payment as specifically defined within the provisions of the Negotiable Instruments Act, 1881, as well as the Code of Civil Procedure, 1908.
- The Parties duly agree and understand that BigWin shall collect late fee from the Borrower through cheque in favour of the Investor and deposit the same in the Investor’s bank account.
- The investor in case promises to pay the said amount and then fails to pay as specified, the investor will be delisted from the Online peer to peer digital marketplace/lending and/or borrowing platform /Paisadukan/BigWin and shall not be able to access Paisadukan site again.
- TERM/ENDURANCE OF THIS AGREEMENT:
- The Parties hereby agree that this Agreement shall be valid for a period of ............, commencing from the date of execution of this Agreement till the date of final realisation of payment.
- The parties duly agree and understand that shall the final realisation of the EMI’s plus principal amount relating to the borrowed amount is made as per the dates duly specified by the Online peer to peer digital marketplace/lending and/or borrowing platform /Paisadukan/BigWin, the agreement automatically shall automatically stand expired.
- TIME ESSENCE:
- That the Parties hereto agree that in respect of the obligations undertaken by each Party herein this Agreement, time is the essence.
- NO GUARANTEE:
- The Parties duly agree and understand that BigWin shall and does not guarantee the following:
- That the Investor listing will be matched with any Borrower loan request, and/or vice versa
- That investor will receive a loan request from the borrower as a result of posting a listing, and/or vice versa
- That investor’s money will be committed in a borrower loan as a result of his making an offer to a listed borrower.
- That investor will receive any rate of return, or any minimum amount of principal or interest on any principal or interest at all.
- Full or partial collection of money from the borrowers.
- THIRD PARTY DISCLOSURES:
- The borrower hereby agrees and explicitly consents that Paisadukan may disclose confidential information of the Borrower to any third party who under the terms of this agreement is CRIF or any other Governmental Regulatory Body who needs to access such information in pursuance of any functions, duties and laws with regards to this Agreement.
- BigWin/PaisaDukan, the Platform, shall in no measures be construed as an agent of either party. PaisaDukan is a facilitation Platform which shall not be held liable for the acts of either Party. Any actions by either Party, the Investor/Borrower shall not be interpreted as act of BigWin.
- That the Parties hereto agree that neither Party shall be liable to each Party or to their agent or associate, for any mistake or error in judgment or for any act or omission done in good faith and believed to be within the scope of authority conferred or implied by this Agreement.
- That at any time, any provision of this Agreement is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions hereof nor the legality, validity or enforceability of such provision under the law of any other jurisdiction shall in any way be affected or impaired thereby. The invalid or unenforceable provision shall be replaced by a provision that meets the intent of the replaced provision in the closest and best way possible.
- INTELLECTUAL PROPERTY RIGHTS:
11.1 The Parties duly agree and understand that the Online peer to peer digital marketplace/lending and/or borrowing platform /Paisadukan/BigWin and all related logos (collectively the "Online peer to peer digital marketplace/lending and/or borrowing platform / Paisadukan / BigWin / Company trademarks") are trademarks or service marks of BigWin. Nothing on this site should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of the BigWin’s trademarks displayed on this site, without the prior written permission of BigWin in each instance. The Borrower shall not use, copy, display, distribute, modify or reproduce any of the trademarks found on the site unless in accordance with written authorization by BigWin. Further BigWin prohibits use of any of trademarks of Paisadukan as part of a link to or from any site unless establishment of such a link is approved in writing by BigWin in advance.
15.1 The Parties duly agree and understand that the Borrower and the investor shall indemnify and hold BigWin harmless from and against any and all claims, action, liability, cost, loss, damage, endured by BigWin upon violation to the listed terms of service, including but not limited to the applicable laws, rules and regulations or agreements prevailing from time to time, by the registered Borrower and investor.
- A failure of a Party to enforce strictly a provision of this Agreement shall in no event be considered a waiver of any part of such provision. No waiver by a Party of any breach or default by the other Party shall operate as a waiver of any succeeding breach or other default or breach by such other Party. No waiver shall have any effect unless it is specific, irrevocable and in writing provided by the Platform/ Paisadukan.
- That any notice or other communication to be given under or in connection with this Agreement (“Notice”) shall be in the English language, in writing, and signed by or on behalf of the Party giving it and marked for the attention of the other Party.
- Any involving the borrower shall be sent to his/ her address at ............................................................... or shall mark a mail to................... (Email Address).
- Any involving the investor shall be sent to his/ her address at ............................................................... or shall mark a mail to................... (Email Address).
- FORCE MAJEURE:
- No Party shall be liable to the other if, and to the extent, that the performance or delay in performance of any of its obligations under this agreement is prevented, restricted, delayed or interfered with, due to circumstances beyond the reasonable control of such party, including but not limited to, Government legislations, fires, floods, explosions, epidemics, accidents, acts of God, wars, riots, strikes, lockouts, or other concerted acts of workmen, acts of Government and/or shortages of materials. The party claiming an event of force majeure shall promptly notify the other parties in writing, and provide full particulars of the cause or event and the date of first occurrence thereof, as soon as possible after the event and also keep the other parties informed of any further developments. The party so affected shall use its best efforts to remove the cause of non-performance, and the parties shall resume performance hereunder with the utmost dispatch when such cause is removed.
- COST AND EXPENSES:
- That each Party hereto shall bear his/her or its own legal, accountancy and other costs charges and expenses connected with the negotiation, preparation and implementation of this Agreement and any other Agreement, incidental to or referred to in this Agreement.
- GOVERNING LAW; APPLICABILITY; VENUE; JURISDICTION:
- That this Agreement shall be governed and construed in accordance with the laws of India. That each Party hereby consents to the exclusive jurisdiction of Mumbai, Maharashtra, located there for any dispute arising out of this Agreement thereof.
- That the concerned parties shall pay appropriate stamp duty as per the Maharashtra Stamp Act. For the said purpose non-judicial stamp paper / franking /online /or any other manner can be used to pay stamp duty as required under the law.
- This agreement and the arrangements contemplated hereby shall in all respects be governed by and construed in accordance with the laws of India without giving effect to the principles of conflict of laws there under;
- This agreement is governed under applicable law of Union of India and other applicable law under the jurisdiction of the concerned state government. The law includes the provisions of Indian Contract Act, 1882, Section 10-A and other provisions of Information Technology Act, 2000 (as amended till date), Specific Relief Act, 1963, provisions of NBFC-P2P Master Direction DNBS.PPD. No. 04/66.15.001/2016-17 dated June 8, 2017 on Information Technology Framework for NBFC Sector, and any other guideline issued by RBI from time to time, and any other law applicable.
- That the Schedules attached hereto shall be considered an integral part of this Agreement.
- Those headlines of this Agreement are included for convenience purposes only and shall in no circumstances have any legal significance in the interpretation or construction of this Agreement.
- That no addition to, deletion from or other modification of any of the provisions hereof shall be valid unless made in writing and signed by an authorized representative of each of the parties hereto.
- This Agreement may be executed in counterparts, each of which will constitute a signed original and the counterparts shall together constitute one document. Faxed, photocopied or scanned signature pages will be valid and acceptable for all purposes, as if it were an original.
- FINAL AGREEMENT/INTEGRATION:
- That this Agreement terminates and supersedes all prior understandings, proposals, representations, MOU’s and Agreements on the subject matter hereof.
- BINDING EFFECT:
- All warranties, undertakings and agreements given herein by the parties shall be binding upon the parties and upon its legal representatives and estates. This agreement (together with any amendments or modifications thereof) supersedes all prior discussions and agreements (whether oral or written) between the parties with respect to the transaction.
- Each Party duly agrees and understands that he/she/they have reviewed all aspects of this Agreement, having carefully read all terms, conditions and obligations in and to this Agreement and have hereby voluntarily entered and executed this Agreement.
IN WITNESS WHEREOF, THE PARTIES HAVE CAUSED THIS AGREEMENT THROUGH THEIR AUTHORISED REPRESENTATIVES ON THE DAY AND YEAR FIRST HEREIN ABOVE WRITTEN
SIGNED AND DELIVERED }
By the within-named }
MR ………… }
SIGNED AND DELIVERED }
By the within-named }
MR ……………. }
SIGNED AND DELIVERED }
By the within-named }
MR ………… }
For and Behalf of }
BIGWIN INFOTECH PVT LTD }
IN THE PRESENCE OF }