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2021 (11) TMI 733 - AT - Insolvency and BankruptcyLiability/Deemed liability in respect of the allotment to the Appellants - agreement with ANS (Corporate Debtor/Respondent) or paid money to ANS for allotment of flats or not - jural relationship between the Appellants and ANS - breach of contract or not - Section 3 (6) of the Insolvency and Bankruptcy Code 2016. Whether RPD being agent of ANS collected the part sale consideration from the Appellants? - HELD THAT - The MOU is an admitted document between the parties. There is the explicit terms and conditions of the MOU that the MOU shall not be deemed constitute a partnership between the parties hereto nor shall make one an agent of the other. Thus we are unable to convince with the argument of Ld. Counsel for the Appellants that RPD has collected the amount from the Appellants being an agent of ANS. Actually this is an agreement to complete the construction of five towers i.e. D E F G K and after completion of construction RPD and ANS were free to sell their saleable 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 same has not been deposited by the RPD in the A/c of Shri Rajneegandha Greens as per clause 17 and 31 of the MOU. There is nothing on record to show that in response to these letters ANS has issued credit note and allotment letters in favour of the Appellants. Thus RPD has not deposited the amount collected from the Appellants in the A/c of Shri Rajneegandha Greens as agreed terms of the MOU and therefore the ANS has not issued any credit note/allotment letters in favour of the Appellants. Thus Ld. Adjudicating Authority has rightly held that there is no jural relationship between the Appellants and ANS. The RPD has not collected the part sale consideration from the Appellants as an agent of ANS. The RP as well as Ld. Adjudicating Authority has rightly rejected the claims of the Appellants - Appeal dismissed.
Issues Involved:
(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-wise Detailed Analysis: Issue (a): Whether RPD being agent of ANS collected the part sale consideration from the Appellants? The MOU dated 03.12.2012 between ANS and RPD explicitly states that RPD shall complete the construction of five towers and sell its share of saleable area directly, collecting all dues in favor of ANS Apartments Pvt. Ltd. A/c Shri Rajneegandha Greens. Clause 17 of the MOU specifies that the collected amount will be transferred to RPD as per a mutually agreed mechanism. Clause 42 of the MOU clarifies that this agreement does not constitute a partnership or agency relationship between ANS and RPD. Thus, the tribunal concluded that RPD was not acting as an agent of ANS when collecting amounts from the Appellants. Issue (b): Whether there is jural relationship between the Appellants and ANS? The Appellants relied on various documents, including the MOU dated 03.12.2012, minutes of meetings, and letters from RPD to ANS requesting the issuance of credit notes and allotment letters. The tribunal observed that, according to the MOU and minutes of meetings, RPD was supposed to deposit the collected amounts in the joint account of Shri Rajneegandha Greens, which it failed to do. The letters from RPD to ANS indicated that RPD collected part consideration from the Appellants but deposited the amounts in its own account instead of the designated joint account. There was no evidence that ANS issued any credit notes or allotment letters in favor of the Appellants in response to these letters. Consequently, the tribunal held that there was no jural relationship between the Appellants and ANS, and RPD did not collect the part sale consideration as an agent of ANS. Conclusion: The tribunal concluded that the RP and the Adjudicating Authority rightly rejected the claims of the Appellants. The appeals were dismissed, with no order as to costs.
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