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TMI Blog2019 (7) TMI 1847X X X X Extracts X X X X X X X X Extracts X X X X ..... 2010 valid up to 24.10.2014. In pursuance of the same the Applicants entered into a bilateral agreement for intending to set up a commercial colony dated 25.10.2010 with the Governor of Haryana, acting through the Director, Town and Country Planning, Haryana. b. The Applicants pursuant to the bilateral agreement paid a sum of Rs. 12,08,82,000/- towards external development charges ("EDC") and infrastructure development charges ("IDC") to the Chief Administrator, Haryana Urban Development Authority, Panchkulla, standing in the name of the Applicants. c. The Applicants thereafter entered unto collaboration agreement dated 15.09.2014 ("the Agreement") with the Respondent for the development of commercial colony on the said land. The Respondent vide the Agreement undertook to develop and construct a commercial colony on the said land. d. The Respondent represented that it has the required capability and experience to implement the project. The Respondent was required to construct the project at its own cost and expenses and with its own resources on the said land. The Respondent also undertook to get the necessary sanctions, approvals and license at its own cost. In consideration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent failed to furnish the required information. k. As per Clause 16(a), the Respondent undertook to pay/ reimburse to the Applicants its share of EDC/IDC. The Applicants made full and final payment to HUDA towards EDC/IDC amount, same is evident from the Agreement as well as the bilateral agreement. The Respondent has failed to make any payments towards its share of EDC/IDC charges even after almost five years of execution of the Agreement. Furthermore, the Respondent has not even begun the construction and development of the project on the said land. This clearly indicates the Respondent has no intention to fulfil his obligations under the Agreement thereby constituting constructive breach of the contract. Thus, in this regard alone the Respondent owes to the Applicants a sum of Rs. 7,25,29,200/-. l. The Respondent thus owes a total sum of Rs. 10,23,79,151/- to the Applicant. 3. The Respondent has filed an affidavit of service. The Respondent was served by e-mail at the e-mail id registered with the MCA. The speed post returned with the report 'no such person bar the given address'. No one appeared on behalf of the Respondent. The Respondent was proceeded ex-parte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Real Estate (Regulation and Development) Act, 2016 (16 of 2016);" 6. Section 2(d) of the Real Estate (Regulation and Development) Act, 2016 ("RERA") defines allottee as follows: "(d) "allottee" in relation to a real estate project, means the person to whom a plot, apartment or building, as the case may be, has been allotted, sold (whether as freehold or leasehold) 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;" 7. The question that arises is whether landowners are also categorized as allottees under RERA. The treatment of landowners under RERA can be understood by looking at the circulars released by various State governments. The Government of Maharashtra vide MahaRERA Circular 12/2017 dated 04.12.2017 has stated that landowners who enter into agreements with the developer/ builder for share of total revenue generated from sale of apartments or share of the total area developed for sale are also to be classified as promoters under RERA. The same has been stated by the go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e OWNERS for development and construction of the said Commercial Colony. HOWEVER, the DEVELOPER shall obtain prior written permission and consent of the OWNERS for the purposes of finalization of drawings/floor plans/ elevation drawings and other matters concerning the Project and also to sell, assign, lease, register or in any other way dispose of the share of the DEVELOPER in the total super build area, with the condition that the general power of attorney holder and/or the DEVELOPER will not be entitled to sell by registered deed and portion to any other person, till handing over the physical possession of the OWNERS' ALLOCATION to the OWNERS in terms hereof and completion of the building... " "12. That it is agreed between the DEVELOPER and OWNERS that the OWNERS shall have the right of inspection of the project, during construction and any improvement suggested during inspection shall be incorporated, but this will not affect the agreement anyway. The owners are free to appoint their independent supervisors and architects to supervise the construction progress. The employees of the OWNERS shall have full right and authority to inspect the construction site at all times t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... obtaining approvals for developing, promoting and constructing and completing the project. That the Design and the marketing of the project shall be in consultation of the OWNERS. " "37. That notwithstanding any thing contained hereinabove in this Agreement, it has been specifically agreed between the parties that for the purposes of realization of booking amount/ advance/ sale consideration or any other revenue receive from its customers, the DEVELOPER shall open a JOINT ESCROW ACCOUNT with Nationalize Banks Branch, NCR (hereinafter referred to as the Escrow Account). The said Escrow Account shall be operated as per the directions given by both the parties jointly. All the monies, amounts, consideration received by the DEVELOPER from the said project in respect of its 60% share in the Project, from the prospective applicant(s)/ allottee(s)/purchaser(s)/transferee(s) etc in the form of booking, provisional allotment, allotment, sale, lease, transfer and/or otherwise (hereinafter referred to as the SALE PROCEEDS) shall be received and deposited in an Indian Rupees Escrow Account, to be opened/ created in the name of "the said project", exclusively for the said project. However, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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