TMI Blog2021 (11) TMI 733X X X X Extracts X X X X X X X X Extracts X X X X ..... leable area directly and collect the consideration. However, they have to deposit the sale proceeds from the sale of their respective areas in the account in the name of ANS Apartments Pvt. Ltd. A/c Shri Rajneegandha Greens only. Whether there is jural relationship between the Appellants and ANS? - HELD THAT:- From the documents as per terms of MOU and Minutes of meeting, RPD was free to sell its share of saleable area directly and collect all dues in favour of ANS and the same is required to be deposited in the bank A/c of Shri Rajneegandha Greens (Dedicated Joint Signatory Account). As per the minutes of meeting dated 15.04.2313, the RPD was required to send printed agreement in triplicate pre-signed by the costumers to ANS and ANS was required to return two copies with in two working days. There is no such flat buyer agreement placed on record. In clause 3 of minutes of meeting dated 11.05.2013 the same condition was reagitated in the minutes of meeting and no document has been placed on record to show that the list of all flats allotted to Shri Rajneegandha Greens be made available to RWA - it is clear that part consideration has been collected from the Appellants but the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of aforesaid amount to the ANS within 12 months as per the schedule. As per the clause 17 of the MOU, RPD is entitled to sell its share of saleable area directly and collect all dues in favour of ANS Apartments Pvt. Ltd. A/c Shri Rajneegandha Greens (Dedicated Joint Signatory Account) and the amount will be transferred to RPD as per mutually agreed mechanism. As per Clause 22 of the MOU, RPD is entitled to construct and market flats to its share in the project site in the name and style of Shri Rajneegandha Greens. The RPD decided to offer a unique self-finance scheme to sell the flats at a notional rate of ₹ 3,600 psf. Under the said scheme the Appellants NP Dhamania and Mayank Dhamania booked Flat No. 1003 and Flat No. 1002 in tower E and each Appellant deposited ₹ 30,05,659/- to RPD. Subsequently, on 23.08.2013 the MOU dated 03.12.2012 was terminated and it was agreed between ANS and RPD that the RPD had carried out the construction worth ₹ 2,16,06,850/- and RPD has given ₹ 51,00,000/- security deposit to ANS at the time of execution of MOU. The total balance amount payable to RPD ₹ 2,50,000/-. It is also settled that ANS will settle the accou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is bind by the acts of his agent RPD and obliged to honour the terms and conditions agreed between the Appellants and RPD. 8. Ld. Counsel for the Appellants further submitted that the MOU dated 03.12.2012 is not a collaboration agreement but an agency agreement. The Hon ble Supreme Court in the case of Faqir Chand Gulati vs Uppal Agencies Pvt. Ltd. Anr (2008) 10 SCC 345 has specifically dealt with meaning of joint venture/development agreement/collaboration agreement and held important features of such agreement. In the light of the Judgment of Hon ble Supreme Court if we examined the facts of the present case, in the agreement, there is no element of sharing of profits and losses between ANS and RPD and no mutual accountability in the said project to each other. As per the clause 6 of deed of termination of MOU all assets liability and obligation of the project have reverted back to ANS (Respondent/Corporate Debtor) which means any liability arising out of breach of contract between the RPD and prospective home buyers will now be the liability and obligation of the ANS. 9. It is submitted that ANS in the Reply Affidavit has not specifically denied its liability in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Counsels for the parties, we have minutely examined the documents on record. 13. Following issues arise for our consideration. (a) Whether RPD being agent of ANS collected the part sale consideration from the Appellants? (b) Whether there is jural relationship between the Appellants and ANS? Issue No. (a) Whether RPD being agent of ANS collected the part sale consideration from the Appellants? 14. We have considered the MOU, on 03.12.2012 ANS entered into a MOU with RPD to complete the construction of five towers i.e. D, E, F, G K. ANS has already incurred the construction cost of ₹ 17,03,55,527/-. It was agreed that RPD shall complete the construction and for the due performance of the contract, RPD agreed to pay interest free security amount of ₹ 5 Crores in four instalments to ANS (as shown in clause 13 of MOU) and also agreed to pay already incurred cost of ₹ 17,03,55,527/- to ANS within 12 months in four instalments (as shown in clause 6 of the MOU). Clause 17 of the MOU provides that RPD shall sell its share of saleable area directly and collect all dues in favour of ANS and deposit in the A/c Shri Rajneegandha Greens (Dedicated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l collect the sale proceeds from the sale of their respective areas in the name of ANS Apartments Pvt. Ltd. A/c Shri Rajneegandha Greens only. After execution of MOU between ANS and RPD, there was a meeting held on 15.04.2013 in which documentation and allotment procedure is decided. Thereafter, another meeting was held on 11.05.2013. The Minutes of the meeting is Annexure A-4. The Minutes which are relevant for the purpose of these Appeals are as under:- 1 2 3. All proceeds of dues from flats of tower G,F,K,D, E will henceforth be deposited in joint A/c ANS Apartments Pvt. Ltd. A/c Shri Rajneegandha Greens and statement will be provided to RWA at the end of every month. 4 5 6 7 8. List of all flats allotted to Shri Rajneegandha Greens will be made available to RWA and whenever any refund is made will be made known to RWA. 19. From the aforesaid documents as per terms of MOU and Minutes of meeting, RPD was free to sell its share of saleable area directly and collect all dues in favour of ANS and the same is required to be deposited in the bank A/c of Shri Rajneegandha Greens (Dedicated Joint Signatory Account). As per ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
