COMBITIC GLOBAL PVT LTD vs KRRISH GREEN HOMES PVT LTD

ffiHAREBA #,eunuenRH,r Complaint no, 2155 of 2019 & 6 others BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGMM Order pronounced oni 06.01.2023 Krrish Green Homes Private Limited now known as ILC lnfracon Pvt Ltd Krrish Green Montagne Complaint title combitic GIobal caplet Private Limited V/s Krrish Green Homes Pvt.

Ltd. and now known as ll,C Infracon Pvt Ltd Combitic Global Caplet Private Limited V/s Krrish Green Homes Pvt.

Ltd. now known as ILC Infracon Pvt Ltd Combitic Global caplet Private Limited V/s Krrish Green Homes PvL Ltd. now known as ILC lnfracon Pvt Ltd Combitic Global Caplet Private Limited V/s Krrish Green Homes Pvt.

Ltd. now known as ILC Infracon Pvt Ltd Sh.

Vikas Deep Sh.

M K Dang Sh.

M K Dang ___l Member I Member Member Name ofthe Builder Proiect Name Complaint No. cRl2Tss/2079 cRl2156/2019 cR/2157 /2079 cR/2158 /2019 cR/215912019 cR/2760 /2079 cRl2761/2079 CORAM: Shri Vijay Kumar Goyal Shri Ashok Sangwan Shri Sanjeev Kumar Arora PaEe I of 2l Combitic Global Caplet Private Limited V/s Krrish Green Homes Pvt.

Ltd. now known as ILC lnfracon Pvt Lrq_ _ l Combitic clobal Caplet Private I Limited V/s Krrish Creen Homes Pvt. l,td. now known as ILC Infracon Pvt Ltd 1.

2.

3. ffiHAREBA ffieunuenRlr Complaint no.

2155 of2019 & 6 others ORDER This order shall dispose of all the 7 complaints titled as above filed before this authority in form CRA under section 31 of the Real Estate (Regulation and Development) Acr,2016 (hereinafter referred as "the Act"l read with rule 28 of the Haryana Real Estate (Regulation and Developmentl Rules, 2 017 (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 esponsible for all its obligations, responsibilities and functions to the allottees as per the agreement for sale executed inter se between parties.

The core issues emanating from them are similar in nature and the complainant in the above referred matters had signed an MOU with the respondent for purchase of apartments in the proiect, 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 ofthe 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 Relief Sought Complaint no./title/ date of complaint ffit"t.rt" enrl area execution I 6J consideration admeasurind of fossessionl and amount a.;; I apartsnenth offerl Paidbythe ;;;"i buy".'r bossession complainant I agreementl'-- | (s) I and date I I ofsigning ofMOUL - PaEeZ of27 Reply status 1. cR/215s/ 2019 titled as :ombitic :lobal Caplet Private Limited V/s Krrish creen Homes Pvt.

Ltd.

Reply receiyed on 26.02.2020 No Allotment Not Executed DOM: 10.06.2013 No I\4ention TSC: No Mention.

BSP: Rs.1,44,00,000/- AP 23,57 ,142 / - 1.

Possession 2,DPC 3. lssue Allorment letter 4.

Execution ol title deed.

2 cR/21s6/ 2019 titled as :ombitic llobal Caplet Limired V/s Krrish Green Homes PvL Ltd.

Reply 26.02.2020 No Allotment Not Executed DOM: t0.06.2013 No Mention TSC: No Mention BSPI Rs.1,44,00,000/- AP: 23,57 ,142 / - 1, Possession 2, DPC 3.

Issue allotment lener 4.

Execution oftitle Deed.

3 cR/2157 / 1019 titled as lombitic ;lobal Caplet )rivate ,imited V/s (rrish Green lomes Pvc ,td.

Reply received on 26.02. on 26.02.2020 No Allotment Not Executed DOM: 10.06.2013 No Mention TSC: No Mention BSP: Rs.1,44,00,000/- APt23,57 ,142 / - 1.

Possession 2, DPC 3. lssue allotment letter 4.

Execution o[ title deed.

4_ cR/zlsa/ 1019 titled as :ombitic llobal Caplet -imited V/s krish Green {omes Pvt, -rd.

Reply 26.02.2020 No Allotment Not Executed DOMI 10.06.2013 No Mention TSC: No Mention BSP: Rs.1,44,00,000/- AP:23,57,r42/- 2.

DPC 3 Issue allotment letter 4 Execution ot title deed 5 cF,/21s9 / l0l9 titled as lombitic llobal Caplet -imited V/s {rrish Green lomes PvL "td.

Reply received on 26.02.2020 No Allotment \ot Executed DOM: r0.06.2013 No Mention TSCr No Mention BSP: Rs.

1,44,00,000/- AP 23,57 ,142 / - 1, Possession 2, DPC 3.

Issue allotment letter 4.

Execution oa title deed. ltr HARERA #h eunuennl,r Complaint no.

2155 of2019 & 6 others Page 3 of 21 4.

5.

HARERA ffiGURUORAII Complaint no.

2155 of 2019 & 6 others The aforesaid complaints were filed by the complainant against the promoter on account ofviolation of MOU dated 10.06.2013, executed bewveen the parties infer se in respect of purchase of apartments for seeking award of possession, delayed possession charges and issuance of allotment letter.

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.

The facts of all the complaints filed by the co mplainant(s] /allottee(sl are also similar.

Out of the above-mentioned case, the particulars of lead case CR/2155 /20L9 tttled as Combitic Global Caplet Private Limited V/s Krrish Green 6.

6. cR/2t60/ 1019 titled as :ombitic llobal Caplet Private Lirnited V/s Krrish Green Homes Pvt.

Reply received on 26.02.2020 No Allotment Not Executed DOM: 10.06.

OM: 10.06.2013 No Mention TSC: No Mention.

BSP: Rs.1,44,00,000/- AP: 23,57 ,142 /- 1, Possession 2, DPC 3, lssue allotment letter.

4, Execution ol title deed.

7_ OR/2161/ 2019 titled as :4mbitic Shbal Caplet Pdivate Lilnited V/s Klrish Green HPmes PvL Ltd.

Reply 26.02.2020 Not Executed DOM: 10.06.2013 No Mention TSC: No [4ention BSP: Rs.

1,44,00,000/ AP 23,s7,142/- 1 Possession 2, DPC ? ls(ue rll.tment letter.

I 4 Execurion ol title deed.

Noter In the table referred above certain abbrevlations havebeen used, They are elaborated as follows: Abbreviations Full form D0l\4- Date of Signing olMoU TSC- Total Sale consideration AP Amountpaid by rhe allortee(s) DPC- Delayed possession charges Page 4 of 2l ffi& HARERA GURUGRAM Complaint no.

2155 of 2019 & 6 others Homes Pvt.

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

A.

Proiect and unit related details 7.

The particulars of the project, the details of sale consideration, the amount paid by the complainant(s), date of proposed handing over the possession, delay period, if any, have been detailed in the following tabular form: CR/2L55 /2019 titled as Combitic Global Caplet Private Limited V/s Krrish Green Homes Pvt.

Ltd, S.

No.

Heads Information 1.

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

Nature ofthe project Group housing project .,] 3, Area ofthe project 10.89 acres 4.

DTCP License valid uo to 15 of 2013 dated 13.04.2013 12.04.201,9 Licensee name Raj Buildwell Pu , Lj4 _ ___ 5.

RERA registered/ not resistered Unregistered 6.

Allotment letter No allotment 7.

Date ofapartment buyer agreement Not Executed B.

Date of Signing of MOU 10.06.2013 Unit no.

No Mention 10.

Super area admeasuring 3600 Sq. ft. (Tentative) 11,.

Possession clause Not Mentioned 1,2.

Due date ofdelivery of possession Not Mentioned 13.

Payment plan Construction linked payment plan (P- 19 of complaint) 14. laint) 14.

Total consideration No Mention.

Page 5 of21 B.

B. ffiHARERA fffi eunuennll Complaint no.

2155 of2019 & 6 others Facts ofthe complaint That, the complainant is a Private Limited Company duly incorporated under Companies Act, 1956, and, the respondent is engaged in the business of real estate development.

It represented that on account of the collaboration agreement with M/s Raj Buildwell Pvt.

Ltd., it has got rights for development, construction, marketing, sales and transferring of units in group housing proiect in respect to project named as 'Krrish Creen Montagne'.

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

That, a Memorandum of Understanding (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 seven apartments of tentative super area of 3600 sq. ft. each at the basic sale price IBSPJ of Rs.4,000/- per sq. ft.

That, the respondent has fixed the value ofeach apartment at Rs.1,44,00,000/- as basic sales price (BSP).

That, at the time of booking, an amount of Rs.35,00,000/- was deposited by complainant against all the seven apartments booked via MOU dated 10-06-2 013, by way of cheque dated 10-06-2 013.

This booking amount of Rs.3 5,00,000/- was duly acknowledged by the respondent in the M0U dated 10-06-2013.

1). :t 1.

10.

15.

Total amount paid by the complainants in respect ofall the seven apartments Rs.1,65,00,000/- (As alleged by the complainant on page no.

22 of complaint, Annexure C/4) 16.

Occupation certificate No Mention.

17.

Date ofoffer ofpossession to the complainant No Mention ..12.

Page 6 of 21 13, HARERA ffiGURUGRAI/ Complaint no.

2155 of 2019 & 6 others 14.

That later on, several payments were made by the complainant to the respondent vide various cheques amounting to Rs.1,65,00,000/-.

Against all the payments of Rs. nts of Rs.1,65,00,000/-, a combined receipt was issued by the respondent on15-10- 2013.

The deposited amount of Rs.1,65,00,000/- as well as the TDS amount of Rs.1,65,000/- is reflected in the ledger account issued by the respondent.

That it was stipulated in the MOU dated 10-06-2013 that, "...

Project drawings / building plans are pending approval from the competent authority.

Alter 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" That, as per MOU dated 10-06-2013, it was further agreed that 300/o of BSP is payable on completion of RCC structure of building in which the apartments are housed.

The balance BSP with EDC, IDC, IFMS etc. was payable when the seller obtained the Occupation Certificate for the Building(sJ/ project.

That, despite lapse of more than five years from the purchase/bookings and execution ofMOU dated 10-06-2 013, 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.

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 ludge Delhi but the same was dismissed for non-prosecution by the Ld.

Court of 15.

76.

77.

18.

Civil ludge, Delhi vide order dated 25.03.2019.

PaBe 7 of zl HARERA ffiGURUGRAM Relief sought by the complainants: Complaint no.2155 of20l9 & 6 orhers C.

20.

The complainant has sought following relief(s): i.

Direct the respondent to issue the allotment letter for all seven apartments. ii. ments. ii.

Direct the respondent to give possession and execution oftitle deed, iii.

Direct the respondent to pay interest on the amount deposited from dates of the respective deposits ti11 possession.

21.

0n 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(aJ (aJ ofthe act to plead guilty or not to plead guilty.

D.

Reply by the respondent 22.

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

That the Memorandum of Association (MoU) was executed between the 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 (Regulation and Development) Act,201,6 and the provisions laid down in the said Act cannot be applied retrospectively.

Furthermore, the complaint is barred by statute of limitation. b.

That, the complaint is bad for non-joinder ofnecessary parties.

Mr.

Amit Katyal and Mr.

Rajesh Katyal are necessary parties to the present amended complaint, so in their absence, the complaint cannot be adjudicated effectively, completely, and properly. c.

That, the complainant as per Section 2[d) of the Real Estate (Regulation and Development) Act,201,6 does not fall within the ambit of the 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 leaseholdJ or otherwise transferred by the promoter, and includes the person who subsequently acquires the said allotment through Page 8 of 21 ffiHAREBA #,ounuenRr'l Complaint no.

2155 of 2019 & 6 others 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. n on rent.

In 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 complainant.

It is neither an allottee, representative ofan allottee, an agent nor any other concerned person who has suffered due to any fault, if the 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. d.

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 between the Parties, the Parties shall amicobly try to resolve the dispute omicobly qmongst themselves and if it still remains unresolved, either or both the parties make invoke pre' litigotion mediation through the Mediotion qnd Conciliqtion Centre, Delhi High Court.

In case such disputes remain unresolved' it shall be finally referred to and resolved through orbitotion. 'l'he number ol orbitrators shall be One (1), to be mutually appointed by the Porties' The orbitration proceedings sholl be os per the provisions of Arbitration & Reconciliotion Act, 1996 I'he seat of afiitration sholl be conducted in English Language.

The oward rcndered by the arbitral tribunal shall befinal and binding upon the Porties." e.

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 Page 9 of 2l HARERA ffiGURUGRAN/ f.

Complaint no.

2155 of2019 & 6 others h.

Agreement dated 07.11. ted 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.

RBPL had obtained license no.

133 of 2008 dated 28.6.2008.

M/s.

Ltd in Collaboration with RBPL had proposed to make a prorect on the said land.

That earlier, the management of the respondent company was in the need of funds for the operations of M/s.

The directors and officials of the complainant company along with one Mr.

Pavel Garg had offered to advance money to Mr.

Rajesh Katyal on payment of interest @ 80/o per annum.

However, the directors and officials of the complainant company and the said Mr.

Pavel Garg had demanded security for repayment of the said loan.

For this purpose the complainant and the said Pavel Garg obtained some documents from Mr.

Rajesh Katyal which was styled as memorandum of understanding and being expression ofinterest in the proposed project ofthe 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 documents were never meant to be acted upon as the same were only for security of repayment.

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

That, around January 2014, Mr.

Amit Katyal, Rajesh Katyal, and their associates had approached Mr.

Sanjay Khurana and represented that the respondent were running a lucrative business of real estate.

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

Saiay Khurana and Mr.

Kamal Kapoor, categorically asserting that the same were free from all types of encumbrances, Page l0 of 2l HARERA ffi.GURUGRAII and that they had absolute rights to sell the same and thereafter hand over the management of the respondent company to them. y to them.

Furthermore, a share subscription cum shareholder agreement dated 28.02.201,4 was signed between the then management of M/s Krrish Green Homes Pvt.

Ltd. through Mr.

Rajesh Katyal, Mr.

Amit Katyal, & associates and Mr.

Sanlay Khurana and Mr.

Kamal Kapoor for which they 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 Pavel Garg and other persons mentioned therein and all such claims have to be satisfied and discharged by Amit Katyal, Raiesh 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 ofthe terms and conditions of the collaboration agreement dated 07.71.201'2.

Thereafter, 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 between 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 14.07.20t7 .

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 of these undisputed documents and submission made by the parties.

2155 of 2019 & 6 others Page ll of 2l HARERA M GURUGRAI/ E. furisdiction ofthe authority 24.

The respondent has raised preliminary objection regarding jurisdiction of authority to entertain the present complaint. complaint.

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

E.

I Territorial lurisdiction .fs per notification no. t/92/2077-1TCp dated L4.LZ.ZOL7 issued bv Town and Country Planning Department, Haryana the jurisdiction of Real Estate Regulatory Authority, Gurugram shall be entire Gurugram District for all purpose with offices situated in Gurugram.

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

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

II Subiect.matter iurisdiction Section 11(4) [aJ of the Act, 2016 provides that the promorer shall be responsible to the allottee as per agreement for sale.

Section 11(4](a) is reproduced as hereunder: Section 71(4)(o) Be responsible for all obligations, responsibilities ond t'unctions under the provisions ofthis Act or the rulesand regulqtions made thereunder or to the allottees as per the agreement for sole, or to the associotion olollottees, as the case mqy be, till the conveyance ofall the aportments, plot; or buildings, as the case may be, to the qllottees, or the common areos to the ossociation ofallottees or the competent quthority, qs the case moy be; The provision ofassured returns is part of the builder buyer,s ogreement, as per clause 15 ofthe BBA dated.........

Accordingly, the prcmoter is responsible for oll obligations/responsibilities and 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 compliqnce of the obligations cast upon the promoters, the allottees qnd the real estote qgents under this Act ond the rules ond regulations made thereunder.

2155 of 2019 & 6 others Page 12 ot 2l ffiHARERA #, eunuennvr Complaint no. plaint no.

2155 of 2019 & 6 others $o, in view of the provisions of the Act of 2016 quoted above, the authority has (omplete iurisdiction to decide the complaint regarding non-compliance of 4bligations by the promoter leaving aside compensation which is to be decided by the adjudicating officer if pursued by the complainant at a later stage.

125.

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

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 by the parties in the event of any dispute and the same is reproduced below for the ready reference: "77, Arbitration "ln case ofony dispute between the Porties, the Parties shall amicobly try to resolve the dispute amicobly omongst themselves ond if it still remains unresolved, either or both the parties make invoke pre- litigqtion mediation through the Mediation ond Conciliotion Centre, Delhi High Court. ln cose such disputes remain unresolved, it shqll be finally referred to ond resolved through orbitration.

The number of qrbitrators shqll be 0ne (1), to be mutuolly appointed by the Parties.

The orbitration proceedings sholl be os per the provisions of Arbitrotion & Reconciliotion AcC 1996.

The seat of arbitration shall be conducted in English Languoge.

The qward rendered by the orbitral tribunal shall be frnoland binding upon the Porties." Page 13 of 21 27. ffiHARERA #, eunuenRvr Complaint no.

2155 of 2019 & 6 others The authority is of the opinion that the iurisdiction of the 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 jurisdiction 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. 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 catena of judgments of the Hon'ble Supreme Court, particularly in National Seeds Corporation Limited v.

M.

Madhusudhan Reddy & Anr. (2012) 2 SCC 506, followed in Aftab Singh and ors. v, Emaar MGF Land Ltd and ors,, Consumer case no.701of2015 decided on 13.07 .2017 ,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 ofthe 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 iurisdiction of a consumer.

While considering the issue of maintainability of a complaint before a consumer forum/commission in the face of an 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 /201a in civil Page 74 ol27 ffi GURUGRAl\/ HARERA Complaint no.

2155 of 2019 & 6 others appeal no.

23512-Z3Sl3 of 2Ot7 decided on L}.lZ.2OlA has upheld the aforesaid judgement ofNCDRC and as provided in Article 141 ofthe constitution of India, the law declared by the Supreme Court shall be binding on all courts within the territory of India anrl accordingly, the authority is bound by the aforesaid view.

29.

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 protection Act and RERA Act,2016 instea 016 instead of going in for an arbitration.

Hence, we have no hesitation in holding that this authority has the requisite rurisdiction 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 authoritv is of the view that the objection of the respondent stands reiected.

F, Findings on the relief sought by the complainant: 130.

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 seven apartments.

F.ll Direct the respondent to give possession and execute title deed.

F.lll Direct the respondent to pay interest on amount deposited from dates ofthe respective deposits till possession. :J1.

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

Amit Karyal & Page 15 of 21 *HARERA S-GTIRTJGRAM Complaint no.

2155 of 2019 & 6 others Associates) on one hand and the complainant company through Mr.

Pavel Garg on the other hand.

As per the said MoU, the complainant company was to be offered 07 number of apartments having a tentative super area of 334.448 sq. meters (equal to 3600 sq. ft) 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 2013 for the project land has been received from DTCP and the allotment letter as well as BBA shall be signed after approvals of drawings/building plans of the project by the competent authority.

Further, in Iieu of the said MoU, an amount of Rs.1,65,00,000/- besides TDS of Rs.70,000/- was paid through various cheques drawn on Axis Bank Ltd as per details at Annexure C4 and which stood duly credited to the respondent-company. t-company.

However, in spite of repeated follow ups, the respondent promoter did not issue any allotment letter/BBA and hence the above complaint was filed for issuance of allotment letter/BBA and handing over of possession and title in respect of above 7 units.

It was further contended in the complaint that the complainant company falls within the definition of "allottee" as payment and agreement can be in any form and MoU has been duly signed by the director of the company for allotment of units in that 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, and as neither any BBA has been executed nor any allotment letter has been issued.

It was only a financial arrangement between one of the directors of the company and the complainant company.

No specific flat or unit number has been assigned in above MoU and project was not even approved on the Page 16 of21 HARERA ffiGURUORAII Complaint no.

2155 of2019 & 6 others date of MoU and the same being only a stop-gap financial arrangement for raising of finances only and as a surety, the above MoU was signed.

Furthermore, after change in the shareholdings of the company on 28.02.20L4,the signatory director Shri Amt Kaytal is no longer in Board of Directors and hence, he is responsible for its payment and be made as a necessary party.

Further, the complainant company had earlier filed a civil suit before Civil ,udge, District Courts, Saket and which was dismissed vide order dated 25.03.2019.

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 lnfracon Pvt Ltd.

Mr. t Ltd.

Amit Katyal, Rajesh Katyal and their associates were earlier in the management of the respondent and who entered into a collaboration agreement dated 07.11.2012 with Raj Buildwell Pvt Ltd to make a pro,ect on the land owned by the latter. lt is contended that the respondent was earlier in need of money leading to execution of memorandum of understanding dated 10.06.2013 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 project.

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., 2Ol2(21)R.CR.(Civil) 30a, PaEe 17 of 2l HARERA MGURUGRAM Complaint no.

2155 of 2019 & 6 others 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(SB) R.C.R (Civil) 269, a similar issue [rose as in the present case and wherein it was held that in the absence of fiormal agreement and there being a mere letter of intent which was subiect to several conditions, it would not give any right to the plaintiffto 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, no reliance on same can be placed though contended otherwise on behalf of the complainant. lt may be entitled to recover the amount paid to the respondent if the law so permits but not to the relief sought by it.

35. by it.

35.

While filing written reply, a specific plea was taken by the respondent that in fanuary 2014, Mr.

Amit Katyal, Rajesh Katyal and their associates were directors of the company and who approached the present directors of the company and leading to agreement cum shareholder agreement dated 28.02.20t4.

The clause 3.6 of that document provides as under: "AK sholl indemnify the Company ogoinst (i) post undisclosed liabilities of the Company which are not disclosed in the financials ofthe Compony or otherwise to SK and KK and (2) for ony claims being made and established by ony person or authori6/ on the shares ofthe Company ollotted to SK qnd KK.

All liobilities pertqining to, and oll claims/ demands/ actions from, Pqvel Garg, Combitic Globol Caplet Pvt.

Limited, Surender Modi, Dreqmworld Properties Pvt.

Ltd. and Krrish Realtech Privote Limited sholl be remain liabilities of AK and he sholl dischorge the same ond be responsible for the some; and AK shall keep the Compony inclemniJied in this regard.

Page 18 of 21 HARERA MGURUGI?AM 36.

It is apparent from the perusar 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 Sanlay 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 Global pvt lt, and others.

When a specific plea in tis regard was taken by the respondent in the written reply with regard to non_ ioinder of Amit Katyal as one ofthe respondent and no steps in this regard were taken by the complaint then the complaint on that score is riable to be re.iected.

A reference in this regard may be made to the ratio of law Iaid down in cases of Abdul Rashid Vs Delhi Waqf Board 2015(4S) R.

015(4S) R.CR (civil) 55, Bharat Kumar Dhaniibhai Kuber vs Markand umedtal Joshi 2019(7) GLR 278 and Expo Freight pvt Ltd Vs Supreme overseas Exports Pvt Ltd 2019 (5) C.T.C 30 and wherein it was held that when a proper party is not included in the suit, then non_ioinder is fatal to the case and the plaint is liable to be reiected.

Though it is contended on behalf of complainant that it has ioined the respondent and who is a necessary party to the litigation but in view of specific objection with regard to ioining of Amit Katyal as one of the respondent on the basis of agreement dated 28.02.201,4 andnot meeting out that objection, 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 suit filed in this regard was dismissed for non_prosecution on 25.03.2019 by the Civil ludge, District Courts, Saket, New Delhi.

Though it is pleaded that the dismissal ofthat suit does not create any bar for the present complaint after Page 19 of 21 ffiEARERA ffieunuennrvr 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 25.03.2i)l.g bearing CS SCI 52871,/L6.Thus, keeping in view these facts the complaint filed seeking the same relief is barred by the principle of res_judicata as a person can,t be vexed twice for the same cause ofaction.

38.

Fourthr, it is pleaded on behalf of the respondent that Mou dated 1,0.06.2013 entered into between the parties was in fact a financial arangement and was not a concluded contract with regard to the sub.iect units. ect units.

While discussing above, it has been held that a mere execution of a MoU does not create any right, tire, or interest in the subiect units unress followed by any formal letter of allotment and agreement of sale.

Though the learned Counsel for respondent placed reliance on the ratio of law laid down in cases ofKaliyaperumal Vs Senthilvel 2018(3) CCS 17 and prem Saini vs Kurdeep & ors., 2021 (1) RCR (civ ) 561 to 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 otherwise evident that merc execution of MOU does not entitle the complainant to any reliefagainst the respondent with regard to the subiect units.

39.

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

Hence, there .rs no merit in the compla,nt 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.

Page 20 of Zl 41.

42.

43.

HARERA E* GURUGRAM Complaint stands disposed of.

True certified copies of this order shall be placed in the case files of each matter.

Date ofuploading ofthis order shall be treated as date ofthis order.

File be consigned to registry. ,,\1,;"#d,, Member Haryana Real Estate Regulatory Authority, Gurugram Dated:06.01.2023 Uploaded on 77.04.2023 Gt KumafArora (MemberJ Ashok PaEe 2l of2l