2020 (9) TMI 996

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.... of Rs. 2,10,00,000/- (Rupees two crores ten lakhs only). The applicants/financial creditors have paid an amount of Rs. 2,17,00,000/-(Rupees two crores seventeen lakhs only) towards the sale consideration of their unit which is in fact more than the agreed sale consideration for the unit. ii. The financial creditor No. 4 to 7, purchased a unit bearing No. HS-B-003, admeasuring 2400 sq. ft. situated in Block/Tower High Street in the project of the corporate debtor in Sector-52, Noida, known as "52nd Avenue", vide MOU dt. 03.02.2005 at a price of Rs. 8,400/- per square foot amounting to a total sale consideration of Rs. 2,01,60,000/- (rupees two crores one lakh sixty thousand only). The applicants/financial creditors have paid an amount of Rs. 1,90,82,810/-(Rupees one crores ninety lakhs eighty two thousand eight hundred ten only) towards the sale consideration of their unit till date. iii. The said units were purchased under the "assured return scheme" as per which the corporate debtor was required to pay an assured return calculated @ 14% per annum, on the payments made by the applicants/financial creditors, to be paid to the applicants as per their proportionate share in the u....

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....of refunding the entire amount paid by the applicants along with compensation for loss of opportunity but has failed to act on either of the two proposals till date. vii. The applicants/financial creditors sent an email to the corporate debtor on 10.05.2019 and 17.05.2019, respectively, demanding the payment of assured returns and arrears thereof but to their utter shock and disbelief, they received a reply from the corporate debtor on 30.05.2019, in which the corporate debtor, in furtherance of its mala fide intentions, has resorted to falsehood and lies and has cooked up false and concocted stores with the sole intent to delay and avoid the obligation of the payment of the assured returns to the applicants. In the said email the corporate debtor has falsely alleged that it had informed the applicants that it will not be paying the monthly assured returns them due to the prevailing market conditions which is totally false and incorrect as no such communication or intimation was ever made by the corporate debtor. The said allegations and claims are vague and ambiguous as they are not substantiated by any specific dates or times and are further not backed by any verifiable or trac....

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....respondent after the execution of the memorandum of understanding dated 01.02.2014, would not acquire the status of financial debt is payable to Buyer's under assured return only upon signing of the Unit-Buyer's Agreement of the Unit No. HS-B-004 and in the absence of the singing of the Unit-Buyer's Agreement, the applicants does not entitle to any such payment as agreed in the memorandum of understanding in terms of clause 7 which is as under: "The assured return shall be payable only upon the execution of the Unit-Buyer's Agreement on the Company's standard format. The allottee irrevocably agrees to execute the Unit-Buyer's Agreement and abide by the terms and conditions thereof. This MOU shall be conterminous thereof. This MOU shall be conterminous and read in conjunction of the Unit-Buyer's Agreement. The MOU shall be governed by and subject to the terms and conditions of the Unit-Buyer's Agreement unless the same is contrary to the understanding reduced between the parties herein. The termination/cancellation of the Unit-Buyer's Agreement shall result in termination/cancellation of this MOU." It is relevant to mention here that Unit-Buye....

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....ssured return in terms of Clause 10 of the MOUs can be exercised by the respondent company whose decision is final and is binding upon the parties. The clause 10 of the MOU is as under: "The Allottee confirms that he/she/it is aware of the assured return scheme being offered by the company and has understood the terms and conditions applicable in relation thereto and as such agrees and undertakes to be bound by the same. The Company reserves to modify, amend or withdraw the assured return scheme as its sole discretion at any point of time and the allottee agrees not to raise any claim or objection in this regard." (Emphasis applied). Respondent company had withdrawn the assured return scheme as agreed in the MOUs' w.e.f. January, 2018 as such, the respondent company had not paid any amount to the applicants after the assured return for the month of December, 2017. The applicants has filed the present petition on account of the default in the payment of the assured return w.e.f. January, 2018 onwards only. The respondent company once exercised its opinion to withdraw the assured return after December, 2017 in exercise of their right provided in the clause 10 supra, the outsta....