PAVEL GARG vs KRRISH GREEN HOMES PVT LTD

HARERA g@ al tDt laDAt\/ BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM Order pronounced on: O6.0L,2O23 CORAM: Shri Ashok Sangwan Shri Sanjeev Kumar Arora ORDER 1.

This order shall dispose of all the 3 complaints titled as above filed before this authority in form CRA under section 31 of the Real Estate [Regulation and Development) Ac|,201,6 (hereinafter referred as "the Act"] read with rule 28 of the Haryana Real Estate (Regulation and DevelopmentJ Rules, 2017 (hereinafter referred as "the rules") for violation of section 11(4)(aJ of the Act wherein it is inter alia prescribed that the promoter shall be responsible for all its obligations, responsibilities and functions to the allottees as per the agreement for sale executed inter se between parties.

2.

The core issues emanating from them are similar in nature and the complainant in the above referred matters had signcd an MOU with the respondent for Page 1of19 Complaint no.

2162 of 2019 & 2 others Name ofthe Builder Krrish Green Homes Private Limited now known as ILC Infracon Pvt Ltd Proiect Name Krrish Green Montagne S.no.

Complaint No.

Complaint title Attendance 1. cR/2762/2019 Pavel Garg V/s Krrish Green Homes Pvt.

Ltd. and now known as ILC Inftacon Pvt Ltd Sh.

Vikas Deep Sh.

M K Dang 2. cR/2763/2079 Pavel Carg V/s Krrish Creen Ilomes Pvt.

Ltd. and now known as ILC Infracon Pvt t,td Sh.

M K Dang 3. cR/2164/2079 rouet cargr/. l(rr"h cieen Homes l -sh. vika. o""p Pvt.

Ltd. and now known ds ILC Sh. lvl K Ddng lnfracon Pvt l.ld Shri Vijay Kumar Goyal Member Member Member 3. ffiHARERA #*eunuennl,r Complaint no.

2162 of 2019 & 2 others purchase of apartments in the project, namely, Krrish Green Montagne being developed by the same respondent/promoter i.e., Krrish Green Homes private Limited.

The terms and conditions of the MOU forms the fulcrum of the issue involved in all these cases pertains to failure on the part of the promoter to issue allotment letter, deliver timely possession of ession of the units in question, seeking award of delayed possession charges.

The details of the complaints, reply status, unit no., date of MOU, possession clause, due date of possession, offer of possession, conveyance deed, total sale consideration, amount paid up, and reliefs sought are given in the table below: Sr. no Complaint no./title/ date of complaint Reply status Unit No. and area admeasurinl (carpet area) Date of execudon of apartment buyer's agreement and date ol signing of MOU, Due date of possession & offer possession Total sale consideration paid by the Complainant (s) Relief sought 1. cR/2162/ 2019 titled as Pavel Garg V/s Krrish Creen Homes P!'t.

Ltd.

Reply 27.02.2020 No Allotment Not t_xecutcd DOIV: 10.06.2013 No Mention TSC No I\4ention.

8SPr2,52,00,000/ AP: 46,66,666 / - l Possession 2 DPC 3 lssue Allotment letter 4.

Execution oi title deed.

2_ cR/2163/ 2019 rided as Pavel Garg V/s Krrish Green Homes Pvt.

Reply 27.02.2020 No Allotment Not Executed 0Ml 0.06.2013 No Mendon TSC:No I\4ention BSP:2,52,00,000/ AP: 46,66,666 / - l Possession 2, DPC 3.lssue allotment letter 4.

Execution oititl Deed.

Page 2 of 79 3. cR/2164/ 2019 titled as Pavel Garg V/s Krrish Creen lomes Pvt, -rd.

Reply received on 27.02.2020 NoAllotment Not Executed D0Ml 10.06.2013 No lTsc: No Mennon I l. possession Meniion I I esr,z,sz,oo,ooo7.] 2 DPC 3 lssue allotmenl AP:46,66.666/- I terrer | + exe.urron ur I title deed.

Note: In the table referred above certain dbbreviations have Leen used.

They are elaboratei as folrows: Abbreviations Full form DOM- Date of Signing ofM0U TSC- Total Sale consideration AP Amount paid by rhe allortee(s) BSP- Basic Sale Price DPC- Delayed Dossession charses SHARERA ffi arnuennl,r Complaint no.

2162 of2019 & 2 others 4.

The aforesaid complaints were filed by the complainant against the promoter on account of violation of MOU dated 10.06. ted 10.06.2013, executed between the parties lnter se in respect of purchase of apartments for seeking award of possession, delayed possession charges and issuance of allotment letter.

5.

It has been decided to treat the said complaints as an application for non- compliance of statutory obligations on the part of the promoter/respondent in terms of section 34[0 of the Act which mandates the authority to ensure compliance ofthe obligations cast upon the promoters, the allottee(s) and the real estate agents under the Act, the rules and the regulations made thereunder.

6.

The facts of all the complaints filed by the complainanr(s)/allottee(sJare also similar.

Out of the above-mentioned case, the particulars of lead case CR/2762/2019 titled as Pavel Garg V/s Krrish Green Homes pvt.

Ltd. are being taken into consideration for determining the rights of the allottee(sJ qua delay possession charges and execution of conveyance deeds.

Page 3 of 19 {B HARERA ffi, arnuennH,r Complaint no.

2162 of 2019 & 2 others A.

Proiect and unit related details 7.

The particulars of the project, the details of sale consideration, the amount paid by the complainantfsJ, date of proposed handing over the possession, delay period, if any, have been detailed in the following tabular form: 162/2OL9 titled as Pavel Garg V/s Krrish Green Homes Prt.

Ltd S.

No.

Heads I n fo rmation 1.

Name and location of the proiect "Krrish Green Montagne", Sector 71, Gurugra 2.

Nature ofthe pro,ect Group housing project 3.

Area ofthe proiect fOAS ac-r"t 4.

DTCP License L5 0f 2013 dated 13.04.2013 valid up to 12.04.2019 Licensee name Raj Buildwell Pvt.

RERA registered/ not registered Unregistered 6.

Allotment letter Not Allotted 7.

Date ofapartment buyer agreement Not Executed B.

Date of Signing of MOU 10.0 6.2 013 fpase no.

15 of comDlaint 9.

Unit no.

Not Mentioned 10.

Super area admeasuring 6300 Sq. ft. fnase no.

17 of comolaint 11.

Possession clause Not Mentioned 72. tioned 72.

Due date of delivery of possession Not Mentioned 13.

Payment plan Construction linked payment plan IP-18 ofcomplaint) 14.

Total consideration Rs.

2,52,00,000/- (as per MOU on page no.

17 of complaint) 15.

Total amount paid by the complainant AP 46,66,666/- [As alleged by both partiesJ Page 4 of 19 B.

8.

HARERA ffiGURUGRAIV Facts ofthe complaint That, the respondent is engaged represented that on account of Complaint no.2162 of2019 & 2 others in the business of real estate development.

It the collaboration agreement with M/s Raj 10.

11.

12.

76.

Occupation certificate Not Mentioned.

17.

Date ofoffer ofpossession to the complainant Not Mentioned Buildwell Pvt.

Ltd., it got rights for development, construction, marketing, sales 9. and transfer of units in group housing pro,ect in respect to project named as 'Krrish Green Montagne'.

That on the basis of representations, the respondent invited bookings of residential apartments ofvarious sizes in its aforesaid project.

Thata memorandum ofunderstanding (MOU) dated 10-06-2013 was entered and executed between complainant and respondent.

By means of the said MOU, the respondent agreed to sell, and the complainant agreed to purchase three apartments of tentative super area of 6300 sq. ft. each at the basic sale price (BSPI of Rs.4,000/- per sq. ft.

That, the respondent has fixed the value of each apartment at Rs.2,52,00,000/- as basic sales price (BSPJ.

That, at the time of booking, an amount of Rs.30,00,000/- was deposited by complainant against all the three apartments booked via MOU dated 10-06-2013, by way of cheque dated 10-06-2 013.

This booking amount of Rs.30,00,000/- was duly acknowledged by the respondent in the MOU dated 10-06-2013.

13.

That later on, several payments were made by the complainant to the respondent vide various cheques amounting to Rs.1,40,00,000/-.

Against all the payments of Rs.1,40,00,000/-, a combined receipt was issued by the respondent on15-10- 201.3.

10- 201.3.

Page 5 of 19 HARERA P*GURUGIiAM Complaint no.

2162 of 2019 & 2 others 14.

That it was stipulated in the MOU dated 10-06-2013 that, "... project drawings / building plans are pending approval from the competent authority.

After the approvals have been obtained, the allotment letters as well as the apartment buyer's agreement shall be issued/ executed by the seller in favour of purchaser" 15.

That, as per MOU dated 10-06-2013, it was furrher agreed that 30% of BSp is payable on completion of RCC structure of building in which the apartments are housed.

The balance BSP with EDC, lDC, IFMS etc. was payable when the seller obtained the occupation certificate for the building(s)/ project.

16.

That, despite lapse of more than five years from the purchase/bookings and execution of MOU dated 10-06-2013, the respondent neither intimated the status of project drawings/ building plans nor supplied the copies of same.

Even the BBA or allotment letter has not been issued till date.

That despite lapse of period of about 6 years, the respondent did not offer any apartment buyer's agreement in terms of MOU dated 10.06.2013.

Further, it failed to complete the RCC structure.

18.

That the complainant on 01.09.2016 served a legal notice on the respondent through his counsel.

But the respondent neither complied with the same nor even bothered to reply to it, 19.

That the complainant had earlier filed the Civil suit in the court of Senior Civil Judge Delhi but the same was returned under Order 7 Rule 10 CPC vide order dated 19.01.2017.

The complainant further filed a Civil Misc.

Appeal but the same was dismissed for non-prosecution by the Additional Distt. ludge, Delhi vide order dated 28.09.2018.

C.

Relief sought by the complainant: 20.

The complainant has sought following relief(sl: i.

Direct the respondent to issue the allotment letter for all three apartlnents. ii.

Direct the respondent to give possession and execute the title deed. itle deed.

Page 6 of19 *HARERA ffieunuennHrr Complaint no.

2162 of2019 & 2 others iii.

Direct the respondent to pay interest on the amount deposited from the dates of respective deposits till possession.

21.

On the date of hearing, the authority explained to the respondent/ promoter about the contraventions as alleged to have been committed in relation to section 11(a) (al ofthe act to plead guilty or not ro plead guilty.

D, Reply by the respondent 22.

The respondent has contested the complaint on the following grounds. a.

That the Memorandum of Association (MoUl was executed between the b. c. complainant and M/s.

Krissh Green Homes Pvt.

Ltd (now known as M/s ILC Infracon Pvt Ltd) prior to the enactment of the Real Estate IRegulation and Development) Act,20L6 and the provisions laid down in the said Act cannot be applied retrospectively.

Furthermore, the complaint is barred by statute of limitation.

That the complaint is bad for non-joinder of necessary parties.

Mr, Amit Katyal and Mr.

Rajesh Katyal are necessary party to the present complaint, So in their absence, the complaint cannot be adjudicated effectively, completely, and properly.

That, the complainant as per Section 2(d) of the Real Estate (Regulation and Development) Act,201,6 does not fall within the ambir of rhe definition of 'allottee'.

As per the definition, the term 'allottee' would cover a person to whom a plot, apartment or building, as the case may be, has been allotted, sold (whether as freehold or Ieasehold) or otherwise transferred by the promoter, and includes the person who subsequently acquires the said allotment through sale, transfer or otherwise but does not include a person to whom such plot, apartment or building, as the case may be, is given on rent. ln the instant case, no plot, apartment or building has been allotted or transferred to the complainant as is evident from a bare perusal of the MoU as attached by the Page 7 of 19 d.

HARERA GURUGRAM Complaint no. plaint no.

2162 of 2019 & 2 others complainant.

It is neither an allottee, representative of an allottee, any agent nor any other concerned person who has suffered due to any fault, ifthe same would have occurred, on the part of respondent.

The complainant has no right to file the present complaint and is misusing the provisions of RERA Act, HRERA Rules and Regulations to unnecessarily harass and pressurize the respondent.

That, the complaint is not maintainable for the reason that the MoU contains a Disputes Resolution Clause which refers to the dispute resolution mechanism to be adopted by the parties in the event of any dispute i.e.

Clause 11 of the Memorandum ofAssociation, which states that: "ln case ofany dispute beb een the pqrties,the parties shqllamicably try to resolve the dispute omicobly amongst themselves ond if it still remains unresolved, either or both the parties make invoke pre- litigotion mediation through the Mediation and Conciliqtion Centre, Delhi High CourL ln case such disputes still remoin unresolved, it shall be finally referred to and resolved through qrbitrqtion.

The number of arbitrators shqll be One (1), to be mutually appointed by the Parties, The arbitration proceedings sholl be qs per the provisions of Arbitrqtion & Reconciliation Act, 1996.

The seat of arbitrotion shall be conducted in English Lqnguoge.

The aword rendered by the arbitral tribunal shall be frnol and binding upon the pqrties.', That, the complainant has suppressed and concealed material facts which has direct and substantive bearing on the current issue.

The respondent company was earlier managed and looked after by Mr.

Amit Katyal, Mr.

Rajesh Katyal and their associates.

The said company had entered into a Collaboration Agreement dated 07.11.2012 with Raj Buildwell private Limited (hereinafter called 'RBPL').

The said RBPL was owner in possession of land measuring 10.89 acres approx. in Village Fazilpur lharsa, Sector 71, Tehsil and District Gurgaon. t Gurgaon.

RBPL had obtained license no.

133 of 2008 dated 28,6.2008.

M/s.

Krrish Green Homes Pvt.

Ltd in Collaboration wirh RBpL had proposed to make a project on the said land.

Page 8 of19 & HARERA GURUGRAM Complaint no.

2162 of2019 & 2 others That earlier, the management of the respondent company was in the need of funds for the operations of M/s.

The complainant company along with directors and officials of the M/s Combitic Global Caplet Pvt.

Ltd. had offered to advance money to Mr.

Amit Katyal and Mr.

Rajesh Katyal on payment of interest @ 8% per annum.

However, the complainant alongwith directors and officials ofthe M/s Combitic Global Caplet pvt.

Ltd. had demanded security for repayment of the said loan.

For this purpose, the complainant and M/s Combitic Global Caplet pvt.

Ltd obtained some documents from Mr.

Raiesh Katyal which was styled as memorandum of understanding and being expression of interest in the proposed project of the respondent.

That the complainant and the directors and officials of the M/s Combitic Global Caplet Pvt Ltd has categorically admitted that the said MOU and documenrs were never meant to be acted upon as the same were only for security of repayment.

The complainant was well aware that no properfy was allotted to it.

That around lanuary 2014, Mr.

Amit Katyal, Ralesh Katyal, and their associates had approached Mr, Sanjay Khurana and represented that the respondent was running a lucrative business of real estate.

They offered sale of shares of M/s Krrish Green Homes Pvt Ltd to Mr.

Sajay Khurana and Mr.

Kamal Kapoor, categorically asserting that the same were free from all types ofencumbrances, and that they had absolute rights to sell the same and thereafter hand over the management ofthe respondent company to them.

That acting on the said representations, a share subscription cum shareholder agreement daled 28.02. led 28.02.2074 was signed betlveen the then management of M/s Krrish Green Homes Pvt.

Ltd. through Mr.

Raiesh Karyal, Mr.

Amit Katyal, & associates and Mr.

Sanjay Khurana and Mr.

Kamal Kapoor for which they f. h.

Page 9 of 19 HARERA MGURUGRAII paid a huge amount to Mr.

Amit Katyal and associates.

As per Clause 3.6 of Schedule III of the said agreement, Mr.

Amit Katyal was liable for all claims/ demands / actions to the complainant and other persons mentioned therein and all such claims have to be satisfied and discharged by Amit Katyal, Rajesh Katyal and their associates.

Thus, the current management of the respondent or the respondent is not liable or responsible in any manner to satisfy the claims raised by the complainant in the present case. j.

Furthermore, RBPL started committing default of the terms and conditions of the collaboration agreement dared 07.L1.2072.

Thereafter, the RBpL filed an application under Section 9 of the Arbitration and Conciliation Act before the High Court of Delhi at New Delhi.

The respondent contested the case and ultimately, a settlement agreement dated 11.1.2017 was made betlveen RBPL and the respondent whereby the said collaboration agreement was terminated.

RBPL undertook to pay the amount advanced by the respondent and also cost of development incurred by the respondent.

Hence the said matter was ultimately settled before the Delhi High Court vide order dated 18.07.20L7.

23.

Copies of all the relevant documents have been filed and placed on the record.

Their authenticity is not in dispute.

Hence, the complaint can be decided on the basis ofthose undisputed documents and submission made by the parties.

E. lurisdiction ofthe authority 24.

The authority observes that it has territorial as well as subject matter jurisdiction to adiudicate the present complaint for the reasons given below.

E.

I Territorial iurisdiction As per notification no.

L19212017 -1TCP dated 14.!2. ted 14.!2.20L7 issued by Town and Country Planning Department, Haryana the jurisdiction of Real Estate Regulatory Authority, Gurugram shall be entire Gurugram District for all purpose with offices Complaint no.2162 of 2019 & 2 others Page 10 of 19 HARERA ffiGURUGI?AM Complaint no.

2162 of2019 & 2 others situated in Gurugram.

In the present case, the project in question is situated within the planning area of Gurugram District.

Therefore, this authority has complete territorial jurisdiction to deal with the present complaint.

Il Subiect-matter iurisdiction Section 11(4)(a) ofthe Act, 2016 provides that the promoter shall be responsible to the allottee as per agreement for sale.

Section 11(41(aJ is reproduced as hereunder: Section 11(4)(a) Be responsible for oll obligations, responsibilities and functions under the provisions ofthis Actor the rulesond regulotions made thereunder or to the allottees as per the ogreementfor sale, or to the ossociotion ofallottees, as the case moy be, till the conveyonce of all the qpartments, plots or buildings, as the case may be, to the ollottees, or the common areas to the association ofollottees or the competent authoriry, as the cose moy be; The provision of ossured returns is part of the builder buyer's ogreement, os per clause 15 ofthe BBA dqted.........

Accordingly, the pronoter is responsible for oll obligations/responsibilities ond functions including payment of assured returns as provided in Builder Buyer's Agreement.

Section 34-Functions of the Authority: 344 ofthe Act provides to ensure complionce oI the obligotions cast upon the promoters, the a ottees and the reol estote ogents under this Act ond the rules and regulqtions mode thereunder.

So, in view of the provisions of the Act of 2 016 quoted above, the authority has complete jurisdiction to decide the complaint regarding non-compliance of obligations by the promoter leaving aside compensation which is to be decided by the adjudicating officer if pursued by the compl the complainant at a later stage.

25.

Obiection regarding complaint not being maintainable due to presence of arbitration clause in the Memorandum of Understanding between the parties.

Page 11 of 19 *HARERA ffiGURUoRAM Complaint no.

2162 of2019 & 2 others 26.

The respondent submitted that the complaint is not maintainable for the reason that the MOU contains a dispute resolution mechanism clause to be adopted bythe parties in the event ofany dispute and the same is reproduced below for the ready reference: "7 7.

Arbitrdtion "ln case ofony dispute between the parties, the porties sholl amicably try to resolve the dispute qmicably amongst themselves ond if it still remqins unresolved, either or both the porties make invoke pre-litigation mediation through the Mediation and Conciliotion Centre, Dethi High Court, tn cqse such disputes remoin unresolved, it sholl be finolty referred to and resolved through arbitration.

The number of orbitrators shall be 0ne [1), to be nutually appointed by the Parties, The qrbitrotion proceedings shall be as per the provisions of Arbitration & Reconciliation Act, 1996.

The seat of orbitration shqll be conducted in English Language.

The award rendered by the arbitral tribunal sho be finol and binding upon the porties." 2 7.

The authority is of the opinion that the iurisdiction ofthe authority cannot be fettered by the existence of an arbitration clause in the MOU as it may be noted that section 79 of the Act bars the lurisdiction of civil courts about any matter which falls within the purview of the authority, or the Real Estate Appellate Tribunal.

Thus, the intention to render such disputes as non_ arbitrable seems to be clear.

Section 88 of the Act says that the provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.

The authority further puts reliance on Page 72 o'i 19 HARERA M GURUGRAI/ Complaint no. plaint no.2162 of2019 & 2 others catena of iudgments of the Hon'ble Supreme Court, particularly in National Seeds Corporation Limited v.

M.

Madhusudhan Reddy & Anr. (ZOLZ) z SCC 506, followed in Aftab Singh and ors. v.

Emaar MGF Land Ltd and ors., Consumer case no.

7Ol of ZOIS decided on L3,07.20L7, by the National Consumer Disputes Redressal Commission, New Delhi (NCDRC) wherein it has been held that the remedies provided under the Consumer protection Act are in addition to and not in derogation of the other laws in force.

Consequently, the authority would not be bound to refer parties to arbitration even if the agreement between the parties had an arbitration clause.

It was also held in the latter case that the arbitration clause in agreements between the complainant and builder could not circumscribe the jurisdiction of a consumer, 28.

While considering the issue of maintainability of a complaint before a consumer forum/commission in the face ofan existing arbitration clause in the builder buyer agreement, the Hon,ble Supreme Court in case titled as M/s Emaar MGF Land Ltd.

V.

Aftab Singh in revision petition no.

2629-30/ZOIA in civil appeal no.

ZTSTZ-ZTSL3 of 2017 decided on l0,l2.20tA has upheld the aforesaid judgement of NCDRC and as provided in Article 141 ofthe Constitution oflndia, the law declared by the Supreme Court shall be binding on all courts within the territory of India and accordingly, the authority is bound by the aforesaid view.

2 9.

Therefore, in view of the above judgements and considering the provisions of the Act, the authority is of the view that complainant is well within right to seek a special remedy available in a beneficial Act such as the Consumer Page 13 of 19 HARERA ffiGURUGI?AM Complaint no.

2152 of2019 & 2 others Protection Act and RERA Act, 2016 instead of going in for an arbitration. bitration.

Hence, we have no hesitation in holding that this authority has the requisite jurisdiction to entertain the complaint and that the dispute does not require to be referred to arbitration necessarily.

In the light of the above-mentioned reasons, the authority is of the view that the objection of the respondent stands rejected.

F.

Findings on the reliefsought by the complainant: 30.

Following reliefs have been claimed by the complainant in all the cases.

The claims being connected, are taken up together hereunder.

F.l Direct the respondent to issue the allotment letter for all three apartments.

F.ll Direct the respondent to give possession and execute the title deed, F.lll Direct the respondent to pay interest on amount deposited from their respective deposits till possession.

31.

In the instant case, an M0U was signed between the then management of the respondent company (which included Mr.

Rajesh Katyal, Mr.

Amit Katyal & Associates) on one hand and the complainant on the other hand.

As per the said MoU, the complainant was to be offered 03 number of apartments having a tentative super area of 585.284 sq. meters (equal to 63 00 sq. ftJ of each apartment in a semi furnished condition in an upcoming project.

Through this MoU, the respondent has assured that a licence bearing No.15 of 2 013 for the project land has been received from DTCP and the allotment letter as well as BBA would be signed after approvals of drawings/building plans ofthe project by the competent authority.

Further, in lieu of said MoU, an amount of Rs.1,40,00,000/_ r.r,as paid through various cheques drawn on Axis Bank Ltd as per details at Annexure C2 Page 14 of 19 trHARERA #, arnuennvr Complaint no.

2162 of 2019 & 2 others and the same stands duly credited to the respondent_company.

However, in spite of repeated follow ups, the respondent-promoter is yet to issue any allotment letter/BBA Hence, the above complaint has been filed for issuance of allotment letter/BBA and handing over of p over of possession and title in respect of above 03 units.

The complainant also contended that it falls within the definition of allottee as payment and agreement can be in any form and MoU has been duly signed by the director ofthe company for allotment ofunits in an upcoming project.

32.

However, the respondent contended that the above complaint is not maintainable as the complainant does not fall in the category of an allottee as neither any BBA has been executed nor any allotment letter has been issued, In fact, it was only a financial arrangement between one of the directors of the company and complainant.

No specific flat or unit number has been assigned in above MoU and project was not even approved on the date of MoU and the same being only a stopgap financial arrangement for raising of finances and as a surety for above MoU was signed.

Further, after change in the shareholding of the company on 28.02.2074, the signatory director Shri Amt Katyal is no longer in Board of Directors and hence he is responsible for its payment and should be made as a necessary party.

Further, complainant had filed a civil suit before Civil Judge, District Courts, Saket and which was dismissed vide order dated 28,09.201g.

Therefore, in view of the above, the complaint is not maintainable before this authority and is liable to be dismissed.

33.

The authority has considered the rival contentions advanced by the parties and has also gone through the written submissions filed in this regard.

34.

It is not disputed that M/s Krrish Greens Homes pvt Ltd is now known as M/S ILC Infracon Pvt Ltd.

Mr.

Amit Katyal, Rajesh Katyal and their associates were earlier in the management of the respondent and who entered into a collaboration Page 15 of 19 HARERA GURUGRAM Complaint no.2162 of2019 & 2 others agreement dated 07 .71,.2012 with Rai Buildwell pvt Ltd to make a project on the land owned by the latter. he latter.

It is contended that the respondent was earlier in need of money leading to execution of memorandum of understanding dated 70.06.2013 and which was in lieu of amount taken and as a security in favour of the complainant.

Except the MOU dated 10.06.2013, there is no other document in favour of the complainant with regard to allotment of the units in the project detailed above and any formal agreement of sale of those units.

Rather in the provisional receipt dated 15.10.2013, the amount received by the respondent has been shown as advance towards an expression of interest in the upcoming proiect.

The use of expression of interest without any formal agreement to sell shows that it was not to be acted upon. ln cases of Tilak Rai Bhagat Vs Raniit Kaur & Ors., 2012(21)R.CR.(Civil) 304, Hansa V Gandhi Vs Deep Shankar Roy & Ors., 2013(3) Civil Law fournal 734, and Nikhil Adhesives Ltd Through Dharmeshbhai Dhiraibhai Pandya Vs Kandla port Trust 2011(S8) R.C.R (Civil) 269, a similar issue arose as in the present case and wherein it was held that in the absence of formal agreement and there being a mere letter of intent which was subject to several conditions, it would not give any right to the plaintiff to purchase the flat in question.

Though there is formal memorandum of understanding executed between the parties but mentioned as expression of interest later on without any formal execution of letters of allotment and registered agreements for sale, and no reliance on same can be placed though contended otherwise on behalf of the complainant.

He may be entitled to recover the amount paid to the respondent if the law so permits but not to the relief sought by him.

35.

While filing written reply, a specific plea was taken by the respondent thar in January 201,4, Mr.

Amit Katyal, Rajesh Katyal and their associates were directors of the company and who approached the present directors of the company and Page 16 of19 HARERA MGURUGRAI\/ Complaint no. plaint no.

2162 of 2019 & 2 others leading to agreement cum shareholder agreement dated 28.02.20L4.

The clause 3.6 ofthat document provides as under: "AK shall indemnify the Compony agc!inst (i) post undisctosed liobilities of the Compony which are not disclosed in the financiols of the Company or otherwise to SK and KK and (2) for any cloims being mode and estoblished by any person or authoriqt on the shores ofthe Conpany allotted to SK and KK.

All liabilities pertoining to, qnd oll claims/ demqnds/ octions from, Povel Garg, Combitic Globol Coplet pvt. t,imited, Surender Modi, Dreomworld Properties Pvt.

Ltd. oncl Krrish Reoltech Private Limited shall be remain liabilities of AK and he sholl clischarge the sqme and be responsible for the same; ond AK shqll keep the Company indemnif;ed in this regard.

36.

It is apparent from the perusal of above-mentioned terms and conditions of the subscription agreement that Amit Katyal was a shareholder in the respondent company holding 501000 shares of the face value of Rs.

10 per share and on entering into agreement with Sanjay Khurana and Kamal Kapoor made himself responsible and keep the company indemnified with regard to liabilities pertaining to and all claims/demands/actions from Pavel Garg, Combitic CIobal Pvt ltd, and others.

When a specific plea in this regard was taken by the respondent in the written reply with regard to non-joinder of Amit Katyal as one of the respondent and no steps in this regard were taken by the complaint then the complaint on that score is liable to be rejected.

A reference in this regard may be made to the ratio of law laid down in cases of Abdul Rashid Vs Delhi Waqf Board 2015(45) R.CR (Civil) 55, Bharat Kumar Dhaniibhai Kuber Vs Markand Umedlal foshi 2019(1) cLR 27A and Expo Freight Pvt Ltd Vs Supreme Overseas Exports Pvt Ltd 2019 (5) C.T.

9 (5) C.T.C 30 and wherein it was held that when a proper party is not included in the suit, then non-joinder is fatal to the case and the plaint is liable to be rejected.

Though it is contended on behalf of complainant that it has joined the respondent and who is a necessary party to the Page 17 of 19 HARERA MGURUGRAM Complaint no.

2162 of2019 & 2 others litigation but in view ofspecific objection with regard to joining of Amit Katyal as one of the respondent on the basis of agreement dated 2g.02.2014 and not meeting out that obiection, the complaint is liable to be reiected.

37' Thirdly, it is not disputed that the complainant earlier approached the civil courts at Delhi for the relief now being sought from the authority.

The suitt filed in this regard was not entertained on L9.0.J,.2012 by the Senior Civil Judge, District Courts, Saket, New Delhi.

Though it is pleaded that the return of that plaint does not create any bar for the present complaint after the Act of 2016 came into force but the plea advanced in this regard is devoid of merit.

The complainant has already availed the appropriate remedy i.e by filing a civil suit before the competent forum and the same having been filed in the year 2016 as evident from order dated 1,9.01.20 j,7 bearing no.

CS SCI 52689/16.

Even the complainant challenged that order by way of appeal bearing no.

MCA no. g /17 but the same was dismissed for non-prosecution vide order dated 28.09,2018 by AD.f, Saket Courts, New Delhi.

Thus, keeping in view these facts the complaint filed seeking the same reliefis barred by the principle ofres_judicata as a person can,t be vexed twice for the same cause of action.

38.

Fourthly, it is pleaded on behalf of the respondent that Mou dated 10.06.2013 entered into between the parties was in fact a financial arrangement and was not a concluded contract with regard to the subject units. ect units.

While discussing above, it has been held that a mere execution of a MOU does not create any right, tile, or interest in the subject units unless followed by any formar retter of alrotment and agreement ofsale.

Though the Iearned Counsel for respondent placed reliance on the ratio oflaw laid down in cases ofKaliya perumal Vs Senthilvel 201S(3) CCS 17, and Prem Saini Vs Kuldeep & Ors.,2021 (1) RCR (Civil) 561 ro show that MOU dated 10.06.2013 was in fact a financial arrangement between the parties but failed to substantiate the same by any documentary evidence, However, it is Page 18 of19 HARERA GURUGRAM otherwise evident that mere execution of MOU does not entitle the complainant to any reliefagainst the respondent with regard to the subiect units.

39.

Thus, in view of discussion above, there is no merit in reliefs prayed by the complainant.

Hence, there is no merit in the complaint and the same is hereby ordered to be rejected.

40.

This decision shall mutatis mutandis apply to cases mentioned in para 3 of this order.

41.

Complaints stand disposed of.

True certified copies of this order shall be placed in the case file ofeach matter.

42.

Date of uploading of this order shall be treated as date ofthis order.

43.

File be consigned to registry.

Ashok (Mem Member Haryana Real Estate Regulatory Authoriry, Gurugram Dated: 06.01.2023 v l- .'-=) iay Krfifar Goyal) eev Kuffar Arora (Member) Uploaded on 17.04.2023 Page 19 of 19