ORDER

% 09.01.2024

1. This hearing has been done through hybrid mode.

I.A. 5300/2021 ( for modification)

2. The present application seeks setting aside and recalling of the decree/order dated 13th August, 2019, which acknowledged and made applicable to the applicants a Memorandum of Understanding dated 30th April, 2019 entered between the Plaintiff-La Tropicana Resident Welfare Association and Defendant-Parsvnath Landmark Developers Pvt. Ltd. The said MOU was taken on record as a Settlement between the Developer and the Residents welfare association/its members.

3. The grievance of the five Applicants, namely, Mr.

Rahul Gyanchandani, Mr. Manoj Kumar, Mr. Murlidhar Gyanchandani, Mr. Bimal Kumar and Mr. Rohit Gyanchandani is that they were part of the Resident Welfare Association. Though they had made payment of almost 30 crores by the year 2012, for allotment of five different Residential units in the project of the Defendant namely “La Tropicana”, Khyber Pass in Civil Lines, Delhi, the Defendants have yet not developed the units neither have they refunded the money paid by the Applicants with a 12 % p.a. interest in terms of the Flat Buyer’s Agreement. It is their submission that the MOU was entered into by the Association with the developer without proper mandate.

4. On behalf of the Association, ld. Counsel Mr. Sandeep Bhuraria, submits under instructions from Mr. Rajesh Malhotra, the President of the Association that the five Applicants were members of the Association and they were being represented by one Mr. Ajay Mittal, even on the WhatsApp Group where the mandate was circulated. The mandate of the MOU was also circulated to all the members of the Association and they have approved it.

5. Be that as it may, on a query from the Court as to by when the flats were to be delivered by the Developer, it is submitted by the ld. Counsel for the Developer that the flats were to be delivered to the members of the Association including the Applicants by 2021. However, the same has been delayed. The said delay has been agreed to before the NCDRC and further time till 2023 was given.

6. Admittedly, on a query from the Court, it is stated that the flats are still not being delivered though it is now January, 2024 and it is submitted that the RERA approval has been granted till 2025 by when the flats are likely to be completed and shall be delivered.

7. Ld. Counsel for the Developer submits that he wishes to file an affidavit giving the details as to the reasons for the delay. If the Developer wishes to file an affidavit, let them do so within four weeks.

8. On behalf of the Applicants, it is submitted by Mr. Rakesh Kumar, ld. Counsel that on the strength of the order dated 13th August, 2019, an order has been obtained by the promoters in the Criminal Court by which the cognizance which was taken has been set aside.

9. Clearly, irrespective of whether the MOU is binding or not, the Developer has not adhered to the terms of the MOU. Accordingly, it is deemed appropriate to direct Mr. Pradeep Jain, Mr. Sandeep Jain and Mr. Rajeev Jain, who were the original promoters of Parsvnath Landmark Developers Pvt. Ltd. to be present in Court on the next date of hearing.

10. Ld. Counsel for the Association submits that an execution petition is also pending before the NCDRC for the delay and defaults. Ld. Counsel for the promoters submits that these three persons are not the Directors in the Company since 2012.

11. In the opinion of this Court, the said three persons were the persons who were arrayed in the criminal proceedings and were also the promoters of the Company at the time when the payments were made by various members of the Association as also the Applicants herein. According to the Applicants, they are also in control of the Company and they are also the signatories to the MOU who are stated to have given personal guarantees.

12. Accordingly, the three promoters mentioned above shall remain present on the next date. List on 9th Febr