JUSTICE V.K.JAIN (ORAL)
The complainants/respondents booked plots with the respondent UK Homes Pvt. Ltd. in a project namely "Capital Greens" at Zirakpur, Patiala Highway and made payment against the allotted plots to the said Company namely UK Homes Pvt. Ltd. The petitioner herein namely Urban Umbrella Development and Management Company entered into an MoU dated 13.01.2015 with UK Homes Pvt. Ltd., after the said project had been got approved by UK Homes Pvt. Ltd. From PUDA, expressing its interest to undertake the entire project including complete land rights with sale, marketing, execution of agreements to sale and development of plots/units till possession. The petitioner/appellant Urban Umbrella Development and Management Company was to pay a total sum of ₹39 crores in terms of the said MoU. The payment was to be made in the following manner:-
"Sl. No. Particulars Amount(INR)
1. Amount mentioned in Annexure E 7,78,750
2. On signing of this MoU 10,00,000
3. On 15 February, 2015 15,00,000
4. On 15 April, 2015 50,00,000
5. From 15 July, 2015 till 15 June, 2016 1,20,00,000 - Rs. 10 lac each month for 12 months.
6. On 15 August, 2016 50,00,000
7. From 15 October, 2016 till 15 March, 1,20,00,000
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2017 - Rs. 20 lac each month for 06 months
8. On 15 April, 2017 - Rs. (8,77,00,000 -
3,72,78,750 4,74,21,250
9. For LOI Approval charges 30,00,000
TOTAL PAYMENT TO FIRST PARTY 8,77,00,000
10. To land owners (as per annexure D of this MoU) 29,31,76,250
11. To Land Registration Cost, as applicable 91,23,750
TOTAL SALE CONSIDERATION AMOUNT 39,00,00,000
(RUPEES THIRTY NINE CRORES ONLY)
12. On Retention by Each Existing Client i.e. 75 Intending Allotee =Rs. (75X50000) 37,50,000"
2. Clause 3, 4, 6 and 9 of the MoU read as under:-
"3) That the FIRST PARTY till date has already executed Agreement to Sell & Purchase for Residential unit(s)/plot(s) in the said PROJECT with its customers, hereinafter referred to as Intending Allottee(s), and has received payments from those customers/intending Allottee(s) as detailed in "Annexure-C" of this MoU.
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4) That the SECOND PARTY will adjust these Intending Allottee(s), as mentioned in the "Annexure-C" of this MoU, in case any of these intending Allottee(s) wish to retain/buy plot(s)/unit(s) in the said PROJECT, subject to the condition that their prevailing plot/unit rate(s), Basic Sale Price (BSP), in the Agreement to Sell with the FIRST PARTY should not be less than Rs. 12,000/- psy (Rupees Twelve Thousand only per sq. yard) and also subject to the availability of plot(s)/unit(s) in the said PROJECT.
6) That the SECOND PARTY will have the rights to execute a fresh Agreement to Sell & Purchase with these Intending allottee(s) who wish to retain their Unit(s)/Plot(s). And will receive the balance payment from them, as and when demanded as per their new payment terms and conditions in the Agreement to Sell & Purchase executed with the SECOND PARTY.
9) That the sale amount received by the FIRST PARTY from those Intending Allottee(s) as mentioned in "Annexure-C" of this MoU, who do not wish to retain their Plots/Units in the said PROJECT, then it will the Sole responsibility of the FIRST PARTY to either refund them or adjust that amount in any of their (FIRST PARTY) other Projects. Under no circumstances the SECOND PARTY will be responsible for the amount received from those intending Allottee(s), as mentioned in Annexure-C' of this MoU, who do not wish to retain their Plots/Units in the said PROJECT."
3. No fresh agreements were executed by the Complainants with Urban Umbrella Development and Management Company and no payment was made by them to the afore-said firm. Since the plots allotted to them by UK Homes Pvt. Ltd. were not developed, the Complainants approached the concerned District Forum/State Commission by way of separate complaints. In two cases the complaints were instituted before the District Forum whereas in one case the complaint was instituted before the State Commission. The complainants sought refund of the amount which they had paid for the plots along with interest, compensation etc.
4. The complaints were resisted both by UK Homes Pvt. Ltd. and Urban Umbrella Development and Management Company. As noted by the State Commission it was stated in the written version filed by UK Homes Pvt. Ltd. that no assured allotment had been made by them and the Complainant was only an investor. The said written version, it is informed, was filed only in Consumer Complaint subject matter of FA No. 760/2016. The complaint was resisted by the petitioner/appellant Urban Umbrella Development and Management Company primarily on the ground that there was no privity of contract between them and the complainants and in terms of the MoU, it was for UK Homes Pvt. Ltd. to refund the amount received from such allottees who did not switch over to them and did not execute agreements
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with them.
5. The consumer complaints having been allowed by the District Forum in Revision Petition No. 495 and 496 of 2017, the petitioner approached the concerned State Commission by way of an appeal. The said appeals having been dismissed the aforesaid petitioner is before this Commission by way of Revision Petitions No. 495 and 496 of 2017. The consumer complaint subject matter of FA No. 760 of 2016 having been allowed by the State Commission against the appellant herein namely Urban Umbrella Development and Management Company as well as UK Homes Pvt. Ltd., the afore-said firm is before this Commission by way of FA No. 760 of 2016.
6. It is an admitted position that no payment whatsoever was made by any of these complainants to Urban Umbrella Development and Management Company. It is also an undisputed position that none of them executed any agreement with Urban Umbrella Development and Management Company in terms of clause 6 of the MoU. It is evident from a bare perusal of clause 4 of the MoU that the Urban Umbrella Development and Management Company was required to adjust the persons to whom allotment was made by UK Homes Pvt. Ltd. in case any of them wished to retain the plots subject to the condition that the price in that case was not to be less than ₹12,000/- per sq. yd. and such adjustment was to be subject to the availability of the plots/units in the afore-said project. The total number of the allottees who were to be adjusted by Urban Umbrella
Development and Management Company was not to exceed 75 and for every allottee retaining their plot/unit with Urban Umbrella Development and Management Company a sum of ₹50,000/- was to be paid to UK Homes Pvt. Ltd. It is also evident from clause 9 of the MoU that if an allottee did not wish to retain plot/unit in the project with Urban Umbrella Development and Management Company, the refund to such allottee was to be made by UK Homes Pvt. Ltd. and not by Urban Umbrella Development and Management Company. It was expressly made clear in clause 9 of the MoU that under no circumstance Urban Umbrella Development and Management Company will be responsible for the amount received from such allottees who did not wish to retain their plots/units in the project.
7. Even as per annexure B to the MoU, if any allottee to whom allotment was made by UK Homes Pvt. Ltd. wanted to retain his plot/unit, the amount which UK Homes Pvt. Ltd. received from such an allottee was to be adjusted in the payment which Urban Umbrella Development and Management Company had to make to UK Homes Pvt. Ltd. by 15.084.2017 and in that case, the amount paid by the allottee retaining the plot/unit in the project was to be taken as the payment made by Urban Umbrella Development and Management Company to UK Homes Pvt. Ltd.
8. Since the allottees did not write to Urban Umbrella Development and Management Company seeking to retain their allotment on the terms and conditions mentioned in the MoU, it is only UK Homes Pvt. Ltd. which remained liable to make refund of the amount which it had received from them along-with appropriate interest/compensation and no such liability can be imposed upon Urban Umbrella Development and Management Company particularly in view of clause 9 of the MoU executed on 13.01.2015.
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9. The learned Counsel for the Complainant has drawn my attention to clause 15 of the MoU which reads as under:-
"That complete sale process, w.e.f. date of Signing of this MoU by both the Parties, for the Plot(s)/Unit(s) in the said PROJECT including Agreement/Sale documents and payments collection will be executed sole by the SECOND PARTY. Under no circumstances, the FIRST PARTY will be able to sell and/or execute any documents pertaining to the Sale of the Plot(s)/Unit(s) in the said PROJECT directly to any third party, without the written consent from the SECOND PARTY."
The aforesaid clause, in my opinion, is wholly irrelevant for the purpose of deciding these matters since the said Clause deals with the completion of the project but obviously would apply only in respect of those allottees who switch over to Urban Umbrella Development and Management Company in terms of clause 14(I4) of the MoU and not to the allottees who did not switched over to Urban Umbrella Development and Management Company and the entire payment by whom was made only to UK Homes Pvt. Ltd. In fact, even UK Homes Pvt. Ltd. did not claim in its written version filed before the State Commission that it was the obligation of Urban Umbrella Development and Management Company to refund the amount which UK Homes Pvt. Ltd. had received from the Complainants. In fact, in an affidavit dated 17.084.2015 Mr. Udai Raj Singh Brar, Director of UK Homes Pvt. Ltd. has clearly stated that any amount received by the Company UK Homes Pvt. Ltd. jfrom any party/individual against the booking/sale etc. of any part/unit/plot in the project Capital Greens will be the responsibility of UK Homes Pvt. Ltd. including refund etc., and under no circumstance Urban Umbrella Development and Management Company or its assignees or employees will have any responsibility for the refund of the said amount.
10. It is submitted by the learned Counsel for the complainants that after executing MoU with UK Homes Pvt. Ltd., Urban Umbrella Development and Management Company did not write any letters to the complainants informing them of the execution of the MoU and giving them an option to switch over to Urban Umbrella Development and Management Company in terms of the MoU executed between the parties. However, no such obligation on Urban Umbrella Development and Management Company is found in the MoU. Primarily, it was for UK Homes Pvt. Ltd., the said company having collected money from the complainants to inform the allottees of the said MoU and given them an opportunity to switch over to Urban Umbrella Development and Management Company in terms of the MoU executed between Urban Umbrella Development and Management Company and UK Homes Pvt. Ltd. No doubt UK Homes Pvt. Ltd. could not have compelled the allottees to switch over to Urban Umbrella Development and Management Company on the terms and conditions agreed between Urban Umbrella Development and Management Company and UK Homes Pvt. Ltd., but then if such terms and conditions were not acceptable to the allotees, the appropriate course of action for them was to take recourse to legal proceedings against UK Homes Pvt. Ltd., the said company having taken money and having made allotment to them.
11. For the reasons stated, hereinabove, the impugned orders to the extent Urban Umbrella Development and Management Company has also been directed to refund the amount which
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UK Homes Pvt. Ltd. received from the Complainants cannot be sustained and to this extent the impugned order is set aside. However, the impugned orders to the extent they are directed against UK Homes Pvt. Ltd. and its Directors remained unaltered. The appeal and the revision petitions stand disposed of accordingly.
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V.K. JAIN
PRESIDING MEMBER
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