in Maha Rera order dated 5th March 2021 in the case of Gauri Thatte V/s Nirmal Developers & Shapoorji Pallonji (COMPLAINT NO: CC006000000192458 )
Fact of the Case
- Nirmal Developers and Mr. Dharmesh Jain are the Promoters of the project known as Code Name-Mumbai Dreams situated at Mulund west.
- They appointed shapoorji Pallonji Private Limited's subsidiary Lucrative Properties Private Limited as Development Manager for providing assistance in the management, planning, supervision of the project and use of their brand name for the fees to be paid and on the terms and conditions mentioned in the development management agreement dated 27.O4.2O18
- By that time, Nirmal Developers already sold 1.71 lakh sq. ft. or thereabout residential area to the prospective purchasers'
- Lucrative Properties Private Limited undertook the responsibility of marketing and branding the project for fees.
- The name of Lucrative Properties Private Limited is mentioned in the category of "Other Professional" and not as promoter on the web page of the project.
- Clause 3.2.1 thereof provides that from condition precedent completion date, the development manager (Lucrative Properties Private Limited) wiil associate the Brand Name solely for the purpose of branding and Marketing the Project in its capacity as Development Manager for the Project.
- Clause 3.2.5 shows that they agreed that the name of the Development Manager and the Developer and their respective logos shall appear on all the brochures, pamphlets, handouts' websites' and all print and electronic media for Marketing the Project' as per branding policies in terms of the Brand Licensing Agreement and as may be approved by the Development Manager'
- Clause 4.2 provides that, during the term of the agreement' the development manager shall in addition to all other functions of development manager as contained in the agreement have the exclusive right to
- 4.2.1-. manage, plan, supervise the project up to completion thereof and
- 4.2.2 prepare the mutually agreed business plan in terms of the agreement
where it has been held that
- development manager having exclusive right to sell the units of the project is included under the definition of the promoter.
- when a person who sells the apartments is different than the one who Constructs it, then both are jointly liable
- It was argued that under Sec 2(zk) of RERA Act where the person who constructs a building into apartments or develops a plot for sale and the persons who sell apartments or plots are different Persons, both of them shall be deemed to be the Promoters and shall be jointly liable as such for the functions and responsibilities specified, under RERA law.
- The learned Adjudicating Authority accepted this contention and held that the Development Manager is included in the definition of Promoter and directed that the Development Manager be added as promoter on the RERA web page within 30 days and
- that Nirmal Developers and Lucrative (subsidiary of Shapoorji) shall refund the amounts of the complainants with simple interest at the rate of 9% per annum from the date of their receipt till their refund.
