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TMI Blog2019 (11) TMI 685X X X X Extracts X X X X X X X X Extracts X X X X ..... i. R4 is the joint venture formed by Rl, R2 and R3 with its registered office at 2, Park End, 3rd Floor, Vikas Marg, New Delhi-110092. ii. Rl on behalf of the joint venture consortium portrayed to the Applicant that they have exclusive rights of development and sale of approx. 39371.25 sq. mtr. of land at Khasra's No.1085, 1086, 1088, 1089 & 1135M at village Noornagar, Ghaziabad ("the land"). iii. In March, 2010, the Respondents approached the Applicant in order to avail their assistance in developing a project at Ghaziabad, Uttar Pradesh. iv. M/s. Divyansh Infracon Pvt. Ltd. ("DIPL") and the Applicant company are group companies. Through a proposed MoU with DIPL, Rl on the strength of the consortium MoU, on behalf of the Respondents, proposed to give returns in the form of 50% of the share of 63% of the total developed and constructed area on the land to the Applicant and/or DIPL, including profits and benefits therein, in lieu of the latter's investment and assistance in development and construction of the project. Under the proposed MoU, the Applicant and/or DIPL was requested by the Respondents to make an initial payment of INR. 9,00,00,000/- to Rl, for the project, which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hey would like to modify it to development of plots. Shortly thereafter, on 16.06.2016, an e-mail was sent by Rl regarding the sub-divisional plan of 140 plots to the Applicant. Again on 23.08.2016. Rl shared the layout plan of the plots with the Applicant. xi. Despite the Applicant's objections, the Respondents went ahead with the revised plan, without prior approval from the Applicant. Vide mail dated 02.12.2016, the Respondents provided a letter from Ghaziabad Development Authority ("GDA") dt. 24.10.2016, sanctioning the revised plan of development of plots by the Respondents, to the Applicant. xii. All the Respondents are equally and jointly and severally responsible for repayment to the Applicant of the financial debt and interest thereupon as all of them have utilized and reaped the benefits of the hard-earned money of the Applicant. xiii. Rl has been treating the payments made by the Applicant as long terms borrowing reflected as "unsecured loans" in its balance sheets, which is admittedly due to the Applicant by the Respondents and is liable to be repaid with commercial interest of at least 24 % p.a. xiv. In fact, on 26.11.2018, Rl sent a confirmation of account to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of the entire sum of Entering Cost of Rs. 9,00,00,000/- then DIPL would not get entry into the project, would not participate in the project in any manner, would not receive any share in the project, and, further, that any amount paid towards the Entering Cost would not be refunded or adjusted in any manner. ii. DIPL could not make payment of the complete Entering Cost of Rs. 9,00,00,000/- by 01.08.2014. Thereafter, DIPL represented to Rl that it was arranging funds and to give time till October 2014 for making payment of the complete Entering Cost of Rs. 9,00,00,000/-. Rl believing bona fide in the representations of DIPL permitted DIPL to make payment of the complete "Entering Cost" of Rs. 9,00,00,000/- by 31st October, 2014. However, even thereafter DIPL failed to make payment of the complete Entering Cost. As on October 2014, DIPL had made payment of only an amount of Rs. 5,50,00,000/- towards the "Entering Cost' which was short of the complete Entering Cost by Rs. 3,50,00.000/-. DIPL continued to make representations till October 2015 that it would make payment of the complete Entering Cost of Rs. 9,00,00,000/-, however, the complete payment was never made. iii. Contr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led by Rl in which it has contended the same points as highlighted in the application. 4. Respondents No. 2 and 3 filed applications seeking to deletion as parties as there is no privity of contract between them and the Applicant. However, they filed their replies on 03.07.2019 and 09.07.2019 respectively in which they contend that no document exists nor is relied upon and/or pleaded by the Applicant in any manner showing any privity and/or relation amongst the Applicant and Respondents No. 2 and 3. They have contended that no alleged representation ever took place between the Respondents 2 and 3 and the Applicant, no monetary transaction took place between them and there does not exist a single document by which they could establish any privity between Respondents 2 and 3 and the Applicant. 5. We have gone into the details of the documents filed by the Applicant and the Respondents. We also heard the detailed arguments advanced by both the sides. It is clarified, at the outset that the MoUs proposed between the Applicant and Rl, attached with the application, are only draft documents which cannot serve any purpose and cannot be pressed to support the contentions of either side. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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