LEGAL NOTICE TO APPOINT ARBITRATOR IN CASE OF DISPUTE ARISING BETWEEN A FINANCIER /LENDER AND A BUILDER PURSUANT TO A COLLABORATION AGREEMENT
LEGAL NOTICE TO APPOINT ARBITRATOR IN CASE OF DISPUTE ARISING BETWEEN A FINANCIER /LENDER AND A BUILDER PURSUANT TO A COLLABORATION AGREEMENT.
Regd. A.D/Speed Post/ Courier
Dated: …………
Shri ____________
S/D/W/o Shri ________________
R/o_________________________
Subject: Legal Notice invoking Clause No._____ of the Collaboration Agreement dated ________ executed between Shri _________, S/D/W/o Shri ___________, R/o________________ (hereinafter referred to as “you the Addressee”), and M/s ____________, presently having its Registered Office at _______________________, and earlier having its Registered /Corporate office at ________________________ represented by its _______________________ (hereinafter referred to as “my Client”)
Sir,
Under instructions from and on behalf of my Client M/s ____________, presently having its Registered Office at ______________________, and earlier having its Registered /Corporate office at _____________________, I hereby serve upon you the Addressee the following Legal Notice invoking Clause No.______________ of the Collaboration Agreement dated ____________________ executed between “you the Addressee” and “my Client”:-
1. That my Client is a _______________ Company incorporated under the provisions of the Companies Act, 1956 presently having its Registered Office at __________________________________, and earlier having its Registered/Corporate office at ________________. That my Client is represented by its _______________________________________________.
2. That in ______, you the Addressee had approached my Client with a proposal that you the Addressee are desirous of acquiring land for the purpose of development and construction of a Multiplex Commercial Complex Project in ______ in the State of ______, and accordingly, you the Addressee approached my Client for seeking finance for the purchase of land and for development and construction of Multiplex Commercial Complex Project on the said land.
3. That you the Addressee approached my Client with the proposal that out of the total amount required for the purchase of the land and for the development and construction of Multiplex Commercial Complex Project, ___% of the amount be provided by my Client and the balance ___% of the amount required shall be provided by you the Addressee.
4. That you the Addressee had further assured and represented to my Client that in consideration of my Client providing to you the Addressee, ___% of the amount required for the purchase of land for the development and construction of the Multiplex Commercial Complex Project on the said land, my Client will be entitled to ownership of ___% Super Built-up Area in the said Multiplex Commercial Complex Project, and you the Addressee will be entitled to ___% of the ownership of Super Built-up Area in the said Multiplex Commercial Complex Project.
5. That believing and relying upon the representations, assurances and promises of you the Addressee, my Client agreed to provide to you the Addressee ___% of the amount required for the purchase of land and for the development and construction of the Multiplex Commercial Complex Project on the said land, and my Client further agreed to take ownership of ___% Super Built-up Area in the said Multiplex Commercial Complex Project, and my Client also agreed that the ownership of the balance ___% of the Super Built-up Area in the said Multiplex Commercial Complex Project shall rest with and belong to you the Addressee.
6. That the total amount required for the purchase of the land for construction of Multiplex Commercial Complex Project was agreed by you the Addressee at Rs.______/-, out of which ___% share amounting to Rs.______/- was required to by paid by my Client to you the Addressee and the balance ___% share amounting to Rs.________/- was required to be paid by you the Addressee.
7. That thereafter from ______ to ______, my Client had paid to you the Addressee an amount of Rs.______/- (instead of amount of Rs.______/-) towards ___% of the amount required for the purchase of the land required for the construction of Multiplex Commercial Complex Project. The details of the payments of Rs.______/- made by my Client to you the Addressee are as under:-
8. That the land required for the construction of the Multiplex Commercial Complex Project was purchased by you the Addressee and you the Addressee proceeded with obtaining requisite approvals from the statutory authorities in respect of the Project in question.
9. That the aforesaid arrangements and agreements orally agreed upon between you the Addressee and my Client were thereafter deduced in writing, and a Collaboration Agreement dated ______ was executed between you the Addressee and my Client which was signed by you the Addressee, and on behalf of my Client the same was signed by Shri ____ the then Managing Director of my Client. That you the Addressee also executed a General Power of Attorney dated ______in favour of Shri ________, the then Managing Director of my Client.
10. That the important terms and conditions of Collaboration Agreement dated ______ are reproduced as under:-
(a) Clause “____”
WHEREAS THE FIRST PARTY being desirous of acquiring lands for the purpose of development of Multiplex Commercial project, in _______ in the State of ______________, approached the second party for seeking finance to purchase the land for the said Commercial-Cum-Multiplex, Commercial project. The second party agreed to provide the necessary finances for the purchase of the land.
(b) Clause “____”
WHEREAS THE SECOND PARTY agreed to provide upto _____% finances for the purchase of land required for the development of Multiplex Commercial project in _______ in the State of _____________ and the balance sum of _____% towards the purchase of the land for the purpose of development of Multiplex Commercial project shall be borne by the first party i.e. the owner.
(c) Clause “____”
AND WHEREAS THE FIRST PARTY ACCORDINGLY has purchased land ad-measuring ___ Bighas in village _____ ______ as per details given in the Schedule of Land hereunder (hereinafter referred to the “said Land”)
SCHEDULE OF LAND
Land ad-measuring ____ Bigha situate at Village _______ and Tehsil _________, District _________, _____________.
(d) Clause “____”
AND WHEREAS THE SECOND PARTY has provided finances amounting to Rs.__________/- (Rupees ___________ only) as agreed upon between the parties for the purchase of the said land out of the total purchase price of Rs._________/- (Rupees _______ only). The details of remittance of amount is stated in the list enclose herewith as Annexure -__
(e) Clause “___”
AND WHEREAS BOTH THE PARTIES were responsible to obtain the “Change of Land Use” from Agricultural to Commercial as the land purchased by the first party was an Agricultural Land. The expenses incurred for obtaining the change of land use from the competent authorities has already been shared between party and second party in the ratio of _____% and ____% respectively.
(f) Clause “_______”
AND WHEREAS THE FIRST PARTY AND SECOND PARTY have now decided and agreed upon to develop the Multiplex Commercial project on the said land jointly. All the expenses required for the construction and development of the project shall be borne by the first party and second party in the ratio of ___% and ___% respectively.
1.1 That the owner and developers have agreed to share the cost and expenses to the ration of __% and __% respectively to obtain all requisite permissions, sanctions and approvals including renewal where necessary as may be required from all concerned Authorities including sanction of building plans for the development and construction of Multiplex Commercial Complex on the “Said land” amd/or obtaining renewal building plans from the authorities concerned.
1.2 The owner and developers have agreed top share the cost and expenses in the ration of __% and ___% respectively and to secure all necessary permissions, approvals, sanction and clearance for the installation of electric, water supply and sewerage connection required for the Multiplex Commercial Complex and shall take all steps to procure these permissions expeditiously as and when the occasion demands.
3. COSTS
3.1 That all the fees, costs, charges including the fees and charges of the Architects, Engineers, Consultants and other expenses for the preparation of plans, shall be borne and papid by the owner and developers who shall pay their relevant share promptly and without any undue delay.
3.2 That all the costs and expenses relating to the construction of the proposed Multiplex Commercial Complex including costs of materials, inputs, layout, supervisions etc. shall be borne and paid by the owner and developers in the ratio of __% and ____% respectively.
3.3 That all the charges, expenses and outgoing expenses towards water and electricity during the course of construction of the Multiplex Complex shall be borne and paid by the owner and developers in the ratio of ___% and _____% respectively.
10. SHARING OF AREAS
10.1 That in consideration of the contribution /obligations of the Owner, in the said project it has been mutually decided and agreed upon between the parties to this Collaboration Agreement that out of the entire super built up area to be developed/constructed by the Developers in the said complex ____% built-up area would be provided and given free of the cost by the Developers to the owner.
NOTE
The super built areas to be provided and given to the owner would be apportioned in a manner that owner shall get his share of area ai all the building on all floors. This arrangement can be altered by the mutual consent of both the parties. That the entire remaining built-up/super built-up areas, open areas and areas under community facility and amenities including the club, schools or dispensary whatsoever provided in the said Complex shall also belong to/vest in and become the exclusive property of the developers and owner in the agreed ratio of ___% and ___% respectively.
10.2 That the saleable/super area for the purposes of this Collaboration Agreement shall be the built up covered area of the Unit plus proportionate area under the corridor, passages, projections and architectural features, lift, walls, lift rooms, stair case, mumty, common toilets, circulations areas,. Refuge areas, undergrounds and over head water tanks, electric sub-station and other facilities etc. The method of calculations of super area stated herein shall be binding upon both the parties.
10.3 The areas to be allocated to the owner under the terms of his Collaboration Agreement shall be demarcated by the Developers and the owners jointly. The areas shall be allocated by the Developers vertically on all the floors until and unless otherwise mutually agreed to between the parties. That all the parties shall be entitled to book/sell the respective areas allocated to their share and receive advance payments at their own risk and cost without any liability to the other. To maintain uniformity the terms and conditions of booking shall be the same as formulated by the Developers for buyers of area allocated to the Developers.
(g) Clause No.______
“Any dispute touching or arising out of this Agreement shall be settled as per the provisions of Indian Arbitration Act, 1956. The parties to the Collaboration Agreement, in case of any dispute have mutually agreed to submit themselves to sole Arbitration Sh. __________ S/o Sh. __________ R/o ___________________ whose decision would be final and binding on the parties. The arbitration proceedings shall takes place at __________.”
(h) Clause No.__________.
That this Agreement shall be subject to the jurisdiction of Delhi Courts only.
11. That thereafter obtaining the requisite approvals from the Statutory Authorities, the development and construction of the Multiplex Commercial Complex Project was started and it was mutually decided between you the Addressee and my Client that the Project will be named as “_______”.
12. That the Respondent got the permission from the ______ Development Authority to construct Shopping- Cum – Multiplex, Hotel and Office accommodation on the said land and got the completion certificate from ______ Development Authority on _______. That thereafter it was mutually decided and agreed between you the Addressee and my Client to make the Project “_______”, a “Self Financing Project” by meeting all the costs and expenses required for the development and construction of the project from the sale proceeds received through booking/selling of shops/ showroom/office spaces in the Project to prospective customers. It was mutually decided and agreed between you the Addressee and my Client that you the Addressee will start booking /selling various shops/showroom/office spaces to various prospective customers in the name of you the Addressee, and you the Addressee shall receive all the sale proceeds from the prospective customers in the name of you the Addressee. It was also mutually decided and agreed between you the Addressee and my Client that from the sale proceeds so received from the prospective customers all the costs and expenses required for the development and construction of the _______ including all the costs required for obtaining all the approvals including the occupation certificate shall be borne and paid out of the sale proceeds so received by you the Addressee from the prospective customers. It was also further agreed that after the completion of the Project Final Accounts of the Project will be drawn by you the Addressee, and it was decided and agreed that in consideration of the investment in the purchase of land made by my Client, you the Addressee shall instead of sharing ___% ownership in the Super Built-up Area by my Client, will pay to my Client the amount of Rs.______/- paid by my Client for purchase of the land alongwith ___% profits earned from the sale of the shops / showrooms/office spaces in the _______. It was also agreed and decided that the amount of projects earned shall be arrived at by reducing from the total sale proceeds received from the sale of shops/showrooms/office spaces in the project, the cost of the land amounting to Rs.______/-, the actual cost incurred for the development and construction of the _______ and all other costs and expenses relating to marketing, administration and statutory costs actually incurred for the _______.
13. That with the above further understanding my Client gave a free hand to you the Addressee for the development, construction and sale of the shops/showroom/office spaces in the _______, and my Client agreed to provide all the support/assistance as may be required by you the Addressee from my Client from time to time, and my Client cooperated with you the Addressee in all respects.
14. That thereafter you the Addressee proceeded with the development, construction and sale of the shops/showroom spaces in the _______, and you the Addressee kept on maintaining all the accounts /records in respect of all the sale proceeds received by you the Addressee from various customers, and the accounts/records in respect of all the amount spent by you the Addressee for the development, construction and completion of the _______ and all other costs and expenses incurred in respect thereto. You the Addressee were given full liberty to deal with all the finances and operate all the bank accounts single handily in this regard.
15. That after the construction and completion of the _______, you the Addressee were managing all the affairs in relation to the _______, and were receiving in the name of you the Addressee all the sale proceeds from the prospective customers, and you the Addressee were also executing the sale deeds in favour of the Customers after receipt of full sale proceeds from them. That you the Addressee kept on informing my Client that as soon as all the amounts from the prospective customers for sale of shops/showrooms/office spaces are received and the sale deeds are executed in favour of the prospective customers, the Final Accounts of the Project will be drawn up by you the Addressee and thereafter you the Addressee shall pay to my Client the amount of Rs.______/- paid by my Client for the purchase of the land alongwith ___% profits earned from the sale of the shops / showrooms/office spaces in the _______.
16. That in _______, you the Addressee informed my Client that you the Addressee have executed and registered various sale deeds of shops/showrooms spaces in favour of various customers from time to time, and you the Addressee also informed my Client that certain sale deeds are still left to be executed by you the Addressee. That you the Addressee also informed my Client that certain shops/ showrooms/ office spaces are still left to be sold due to which the you the Addressee have not been in a position to draw up the Final Accounts of the Project and pay to my Clients the amount of Rs.______/- paid by my Client for the purchase of the land alongwith ___% profits earned from the sale of the shops / showrooms /office spaces in the _______.
17. That in order to settle all the Final Accounts of the Project between you the Addressee and my Client, you the Addressee requested my Client to help you the Addressee in selling about _______ sq.ft. of Super Built-up Area out of the balance unsold stock of the shops/showroom/office spaces. You the Addressee also informed my Client that the balance unsold stock shall be retained by you the Addressee at the average sale price at which the shops/ showroom/ office spaces were sold by you the Addressee to various customers.
18. That in order to help you the Addressee to sell about _______ sq.ft. of Super Built-up Area and to settle all the Final Accounts of the Project between you the Addressee and my Client, my Client provided to you the Addressee __ customers namely M/s ________, M/s ________ and M/s ________, who were ready to purchase about _______ sq.ft. of shops/ showrooms/offices spaces in the _______ so that you the Addressee are in a position to draw the Final Accounts of the Project between you the Addressee and my Client, and thereafter you the Addressee is in a position to pay to my Client the amount of Rs.______/- paid by my Client for the purchase of the land alongwith ___% profits earned from the sale of the shops / showrooms spaces in the _______.
19. That you the Addressee have thereafter sold to the said M/s ________ M/s ________ and M/s ________ about _______ sq.ft. of Super Built-up Area shops/showrooms/office spaces in the _______ vide various Sale Deeds executed during ____ to ____ executed in favour of these __ customers namely M/s ________ M/s ________ and M/s ________ about _______ sq.ft. of Super Built-up Area after receiving the full amount of the sale proceeds from them.
20. That thereafter in ____, my Client requested you the Addressee to now draw up the Final Accounts of the Project and pay to my Client the amount of Rs.______/- paid by my Client for the purchase of the land alongwith ___% profits earned from the sale of the shops / showrooms /office spaces in the _______. That, however, you the Addressee told my Client that still there are certain unsold stocks of shops / showrooms /office spaces which you the Addressee is in the process of selling, and as soon as the same are sold, you the Addressee will draw up the Final Accounts of the Project and pay to my Client the amount of Rs.______/- paid by my Client for the purchase of the land alongwith ___% profits earned from the sale of the shops / showrooms/office spaces in the _______.
21. That my Client have been waiting for you the Addressee for the Final Settlement of the Accounts of the Project and payment of the amount of the Rs.______/- paid by my Client to you the Addressee for the purchase of the land alongwith ___% profits earned from the sale of the shops / showrooms/office spaces in the _______ by you the Addressee to my Client. That my Client kept on contacting you the Addressee from time to time on various date during ____ & ____ but you the Addressee always promised to draw up the Final Account but you the Addressee never did so.
22. That since you the Addressee did not draw up the Final Account of the Project and pay to my Client the amount of the Rs.______/- paid by my Client to you the Addressee for the purchase of the land alongwith ___% profits earned from the sale of the shops / showrooms/office spaces in the _______ by you the Addressee to my Client, my Client was left with no other option but to write to you the Addressee a letter dated ____ calling upon you the Addressee to settle the accounts of my Client. That while my Client despatched the letter dated ____ to you the Addressee, but on the same day you the Addressee agreed to pay to my Client the amount of Rs.______/- paid by my Client to you the Addressee alongwith simple interest calculated @____% per annum from the date of payment of the aforesaid amount of Rs.______/- by my Client to you the Addressee till _______. That in order to close this matter once for all you the Addressee gave to my Client Cheque No.____ dated ____ for Rs.____/-, drawn on ____________________, comprising of the payment of amount of Rs.______/- plus interest of Rs.____________________/- calculated @____ % per annum from the date of payment of the aforesaid amount of Rs.______/- by my Client to you the Addressee as per the following calculations:-
Details of Payments Made by M/s ________, From ______ to _______, AMOUNT PAID BY MY CLIENT TO YOU THE ADDRESSEE
23. That you the Addressee however requested my Client to present the said Cheque No.____ dated ____ for Rs.____/-, drawn on ____________________, only in the ___ week of _____, and my Client agreed to and accepted the said request of you the Addressee.
24. That with the receipt of the aforesaid amount of Rs.___________/- Cheque No.____ dated ____ for Rs.____/-, drawn on ____________________, comprising of the refund of amount of Rs.______/- plus interest of Rs.____________________/-, calculated @____% per annum from the date of payment of the aforesaid amount of Rs.______/- by my Client to you the Addressee, all the accounts between my Client and you the Addressee relating to _______ arising out of the Collaboration Agreement dated ______ were fully and finally settled, and my Client had issued to you the Addressee a full and final settlement Receipt dated ____ in respect thereto subject, however to the encashment of the Cheque No.____ dated ____ for Rs.____/-, drawn on ____________________.
25. That inspite of full and final settlement of the account of my Client with you the Addressee after you the Addressee handed over to my Client Cheque No.____ dated ____ for Rs.____/-, drawn on ____________________ in full and final settlement of account, you the Addressee have through you the Addressee’s Advocate sent a Legal Notice dated ____ to the Petitioner followed by letter dated ____ addressed to my Client and Mr. ________ asked them to supply to you the Addressee a copy of the Collaboration Agreement dated____ and you the Addressee also wanted my Client to withdraw its letter dated ____. It is surprising that in the said letter dated ____, you the Addressee have very surprisingly avoided to make a mention about the full and final settlement of account having arrived by my Client with you the Addressee and about you the Addressee handing over to my Client the Cheque No.____ dated ____ for Rs.____/-, drawn on ____________________.
26. That my Client have faithfully replied you the Addressee’s letter dated ____ including the contents of Legal Notice dated ____, vide my Client’s letter dated ____. That alongwith the said letter my Client have enclosed a copy of the Collaboration Agreement dated ____ as desired by you the Addressee and in the said letter dated ____ my Client also requested you the Addressee to kindly ensure the encashment of the Cheque No.____ dated ____ for Rs.____/-, drawn on ____________________.
26. That as agreed the aforesaid Cheque No.____ dated ____ for Rs.____/-, drawn on ____________________, was deposited by my Client with its Banker, ____________________, on ____ in its Account No.____. However, the said Cheque No.____ dated ____ for Rs.____/-, drawn on ____________________, when presented for clearing was dishonoured by ____________________, and the banker of my Client i.e. Bank ________ informed my Client vide Return Memo Report (CTS Clearing) No.____ dated ____ sent to my Client, that the above cheque has been dishonoured with the reason “____”. That the aforesaid Cheque was presented by my Client during the period of its validity.
27. That my Client have now realised that you the Addressee have issued the above Cheque despite you the Addressee’s knowledge that you the Addressee had no funds in you the Addressee’s bank account and you the Addressee had an intent to deceit, cheat and defraud my Client. Therefore, you the addressee, have cheated my Client and it seems that you the Addressee do not want to pay the amount of Rs.___________/- to my Client due to be paid by you the Addressee to my Client towards the full and final settlement of account of my Client as agreed upon arising out of the Collaboration Agreement dated ______, and hence the act of you the Addressee is dishonest and malafide.
28. That left with no other option my Client had sent to you the Addressee a Legal Notice dated ____ through my Client Advocate Mr. ____, calling upon you the Addressee to pay my Client the amount of Rs.___________/- in lieu of the dishonour of the Cheque No.____ dated ____ for Rs.____/-, drawn on _________ ___________ towards full and Final Settlement of Account my Client arising out of the Collaboration Agreement dated ______ alongwith interest calculated @___% per annum from the date of the cheque till the date of payment within ___% days of the receipt of the said Notice, failing which my Client had NOTIFIED to you the Addressee that my Client shall be compelled to initiate proceedings against you the Addressee, under Section 138 & 141 of the Negotiable Instruments Act 1881 and get you the Addressee punished as per law and my Client shall also avail other remedies available to me as per law for recovery of the same as per law, if required, and you the addressee shall be held liable for all the costs and expenses incurred in this connection. That my Client did not receive any reply from you the Addressee to the aforesaid Notice.
28(a). That without prejudice to the rights of my Client to initiate action against you the Addressee under section 138 & 141 of the Negotiable Instrument Act., you the Addressee are aware that in the Collaboration Agreement dated____ there is an Arbitration Clause No. _____ and jurisdiction Clause No._____ which reads as under:-
Arbitration Clause No. ________
“Any dispute touching or arising out of this Agreement shall be settled as per the provisions of Indian Arbitration Act, 1956. The parties to the Collaboration Agreement, in case of any dispute have mutually agreed to submit themselves to sole Arbitration Sh. __________ S/o Sh. __________ R/o _____________ whose decision would be final and binding on the parties. The arbitration proceedings shall takes place at __________.”
Jurisdiction Clause No. ______
That this Agreement shall be subject to the jurisdiction of _______ Courts only.
29. That in view of the facts and circumstances narrated hereinabove, and specially in the background that serious disputes have arisen between you the Addressee and my Client in relation to the Collaboration Agreement dated ______, my Client is entitled to seek recovery of an amount of Rs.___________/- in lieu of the dishonour of the Cheque No.____ dated ____ for Rs.____/-, drawn on ______________ ______ alongwith interest calculated @___% from the date of the cheque till the date of payment towards full and Final Settlement of Account my Client as agreed upon and arising out of the Collaboration Agreement dated ______.
30. Therefore through this Legal Notice, my Client do hereby invoke Arbitration Clause No.____ of the Collaboration Agreement dated ______ executed between you the Addressee and my Client. That since Mr. _______S/o Sh. _______ R/o _________________ who has been mentioned as Sole Arbitrator in clause No. ___ of the Collaboration Agreement dated ______, is related to Mr. ________ Authorised Signatory of my Client, therefore in the interest of fair and equitable justice adjudication/resolution of the dispute, my Client do not want to propose the name of Mr. _______S/o Sh. _______ R/o _____________ as the Sole Arbitrator, and hence my Client propose the name of Shri _________, Former Additional District and Sessions Judge, ____ to be appointed as the Sole Arbitrator to adjudicate upon / settle the disputes having arisen between you the Addressee and my Client arising out Collaboration Agreement dated ______ and if my Client fail to hear from you the Addressee in response to this Legal Notice within a period of ____ days then in that event, it shall be presumed that you the Addressee have no objection to Shri ____, Former Additional District and Sessions Judge, ____ being appointed as Sole Arbitrator in terms of Clause No. ___ of the Collaboration Agreement dated ______ for adjudication / resolution of disputes or differences between my Client and you the Addressee in accordance with law. You the Addressee is further NOTIFIED that my Client reserves its rights to approach the Appropriate Court (s) for urgent interim orders to protect its interest.
31. Take Notice Accordingly
(____________)
Advocate
Note:
A copy of this Legal Notice is kept in the office of the undersigned which may be inspected any time with prior appointment with the undersigned.
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