TMI Blog2019 (1) TMI 1503X X X X Extracts X X X X X X X X Extracts X X X X ..... (Land Owner) to advertise the project and for marketing the developed property as a ‘Joint Venture Project’, in terms with the said ‘Collaboration Agreement’ on behalf of the joint venture, if the Memorandum of Understanding dated 20th June, 2014 has been reached between the ‘Earth Infrastructure Ltd.’ and the Appellant- Mrs. Mamtha, the 2nd Respondent cannot take a plea that it is not a signatory to the Memorandum of Understanding dated 20th June, 2014, the 2nd Respondent being represented by ‘Earth Infrastructure Ltd.’ pursuant to the ‘Collaboration Agreement’. The Adjudicating Authority has failed to take into consideration the aforesaid facts and wrongly held that the ‘Corporate Insolvency Resolution Process’ cannot be initiated against the two ‘Corporate Debtors’. If the two ‘Corporate Debtors’ collaborate and form an independent corporate unit entity for developing the land and allotting the premises to its allottee, the application under Section 7 will be maintainable against both of them jointly and not individually against one or other - In such case, both the ‘Developer’ and the ‘Land Owner’, if they are corporate should be jointly treated to be one for the purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellant, it is maintainable in the facts and circumstances of the case, according to the Respondents, it is not maintainable as no joint petition can be filed against two Corporate Debtors and as per Memorandum of Understanding dated 20th June, 2014 relied upon by the Appellant, one of them the Corporate Debtor (No.1) is not a party. 4. For determination of the issue, it is desirable to notice the relevant fact as discussed below: 5. AMB Infrabuild Pvt. Ltd. - (1st Respondent), a Company registered under the Companies Act, 1956 and Earth Galleria Pvt. Ltd. - (2nd Respondent), another Company registered under the Companies Act, 1956, entered into Collaboration Agreement on 3rd May, 2013, for development of a piece of land as mentioned therein, AMB Infrabuild Pvt. Ltd. - (1st Respondent) herein called as Owner of the land and Earth Galleria Pvt. Ltd. - (2nd Respondent) as Developer , relevant portion of which reads as follows: COLLABORATION AGREEMENT THIS AGREEMENT OF COLLABORATION is executed at Gurgaon on this 03rd day of May, 2013 BETWEEN AMB Infrabuild Pvt. Ltd., having its office at D-62, Defence Colony, Ground Floor, New Delhi throu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) situated in revenue estate of Hayatpur, Tehsil District Gurgaon for utilizing the same for construction and development of the same as a Commercial Complex by the DEVELOPER. The aforesaid letter of intent has been granted by Town And Country Planning Department, Haryana, Chandigarh pertaining to land measuring 83 Kanals 10 Marlas referred to above. xxx xxx xxx 9. That the OWNER through this agreement shall devolve all necessary rights and entitlements on the Developer to build upon the said land proposed Commercial Complex in accordance with the terms of this agreement and to own as property belonging to the DEVELOPER or dispose of the whole of its share of the built up area of the said Commercial Complex as provided herein with proportionate share in the land underneath the said Commercial Complex as also the right to use the common areas and common facilities (hereinafter called the DEVELOPER S ALLOCATION). The Owner hereby agrees and acknowledges that such power of attorneys has been granted for consideration, the receipt and sufficiency of which is acknowledged hereby, and for all inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... site. The marketing/advertisement costs shall be borne by the Developer. It is further agreed that all the advertisements got published by the DEVELOPER for the project specifically state that the project is being developed by the DEVELOPER as a joint venture project within the OWNER. The name of the OWNER shall be displayed in the advertisement by a font not less than half the size of the name of DEVELOPER mentioned in the advertisement referred to above. The OWNER shall not be entitled to undertake advertisements in any form for example printed or electronic or mobile media. The DEVELOPER shall be bound to ensure it shall not proceed to infringe the conditions of licence or any rule, bye law or directive of any statutory authority. 6. Thereafter, a Memorandum of Understanding was reached on 20th June, 2014 between Earth Infrastructure Ltd. - (Developer) and the Appellant- Mrs. Mamtha in respect to booking of CINEPLEX (1 Screen) for which a sale consideration of ₹ 3,00,00,000/- (Rupees Three Crores Only) and advance of ₹ 5,00,000/- (Rupees Five Lakh Only) was paid in terms of the said agreement, relevant of which reads as follows:- EARTH SKYGATE MEMORAND ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a female, the expression he , him , himself etc. in this MOU shall be read and construed as she , her , himself etc. these expression shall be modified and read suitable whenever the Intending Allottee is a joint stock Company, Body Corporate, Firm, LLP or any. NOW THIS MOU witness as follows:- 1. THE AREA That the Intending Allottee(s) hereby applying for the provisional allotment of a Unit tentatively admeasuring 4,000 sq. ft. on the Third Floor in the Complex Earth Skygate , for sale consideration of ₹ 3,00,00,000/- Rupees THREE CRORES ONLY All other applicable charges, service tax along with interest if any, any other taxes etc. will be paid extra over and above the above said sale consideration of the Unit. 2. UNIT SALE CONSIDERATION That the Intending Allottee(s) has opted for the SUPER FLEXI PAYMENT PLAN and paid an amount of ₹ 5,00,000/-. (Rupees FIVE LAKH ONLY As per Annexure II attached hereto, simultaneous with the execution of this MOU, the receipt of which the Company hereby acknowledges. The Intending Allottee(s) hereby acknowledges that this MOU shall be enforceable only after realization of all the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Respondent) in respect to the said land on 3rd April, 2014. 9. The Appellant has also enclosed a Memorandum of Understanding reached between the Appellant and the Respondents i.e. M/s. Earth Galleria Pvt. Ltd. and M/s. AMB Infrabuild Pvt. Ltd. dated 6th February, 2016. In the said Memorandum of Understanding, the Developer and the Land Owner has been jointly referred to as the Company , relevant portion of which reads as follows: EARTH SKY GATE 1 MEMORANDUM OF UNDERSTANDING This Memorandum of Understanding (hereinafter referred to as the MOU ) is made and executed on the Feb 06, 2016 at New Delhi, BY AND BETWEEN: M/s. Earth Galleria Pvt. Ltd. a Company registered under the Companies Act, 1956 having its Registered Office- at 26, First Floor, Pusa Road, Karol Bagh, New Delhi-110005 through its Authorized Signatory, Mr. Naveen Goel, duly authorized vide Board Resolution dated 12-Jan-2015 hereinafter referred to as Developer of the ONE PART. AND M/s. AMB Infrabuild (P.) Ltd., a Company registered under the Companies Act, 1956 having its Registered Office at D-62, Ground Floor, Defence Colony, New Delhi-110024, represented through Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eventy Eight Thousand Forty Five Only) towards the Basic Sales Consideration and ₹ 0/- towards some of the Other Charges as per the Annexure B. attached hereto, the receipt of which the Company hereby acknowledges. (D) The Allottee(s) has agreed to pay the balance sate consideration as per the opted and agreed schedule of balance payments as mentioned in the Annexure C . (E) The Altottee(s) also undertakes to pay some of the instalments through Post Dated Cheques (PDCs). The Details of the PDC s are annexed in the Annexure B . (F) The Allottee(s) shall make the balance payment on or before its due date as per the schedule of balance payments. 10. From the aforesaid facts, it is clear that the 1st and 2nd Respondents, the Developer and the Land Owner for the purpose of the project has referred to them as the Company and the Appellant has been shown as the Allottee . 11. The Collaboration Agreement dated 3rd May, 2013 reached between the Owner of the Land - AMB Infrabuild Pvt. Ltd. and the Developer - Earth Galleria Pvt. Ltd. shows that the Developer will sell the flats to the extent of its own shares and the Land Owner will sell the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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