Although the project has not been approved for investment, the investor has consulted and signed deposit contracts with apartment buyers, collected billions of dong and continuously promised to hand over the apartments, but has not yet done so.
Received deposit but delayed project implementation
In a petition sent to Nguoi Lao Dong Newspaper, Mr. Beed Bijal Motichand (Indian nationality) and Daryanani Ajay Lachman (British nationality) reported that Phuc Khang Investment and Construction Joint Stock Company (Phuc Khang, headquartered in District 3, Ho Chi Minh City) had misappropriated money and provided false information regarding the Rome By Diamond Lotus project (No. 50 Mai Chi Tho Avenue, An Phu Ward, Thu Duc City).
According to the petition, on November 28, 2018, Mr. Beed Bijal Motichand and Phuc Khang signed deposit contract No. 81/2018/HDDC/PK to ensure the signing of the sale and purchase contract for apartment No. A16.CASA 1.2 of the Rome by Diamond Lotus project with a total value of 5.4 billion VND after the project meets the conditions for sale and purchase as prescribed by law.
In the appendix to the deposit contract, Phuc Khang committed to notify the customer of the signing of the apartment sale and purchase contract on December 1, 2019 and notify the handover of the apartment on May 1, 2021. At Phuc Khang's request, Mr. Beed Bijal Motichand paid a total of VND 1.84 billion, equivalent to 34% of the apartment value.
Rome By Diamond Lotus project has been fenced for many years but still has not started construction.
However, from October 2019 to July 2022, Phuc Khang has continuously sent documents about changing the project implementation time, the time to sign the sales contract and the time to hand over the apartment. Realizing that the transaction could not continue, Mr. Beed Bijial Motichand sent many emails to request that this company refund the payment, but to date, Phuc Khang has not done so.
Similarly, at the end of 2018, Ms. Daryanani Ajay Lachman also signed a deposit contract with Phuc Khang to secure the signing of the sale and purchase contract for apartment No. C16.CASA 1.3 with a total value of VND 5.3 billion. From the time of signing the contract to October 2019, Ms. Daryanani paid more than VND 2 billion, equivalent to 38% of the apartment value. According to Document No. 7-2022, Phuc Khang said it is coordinating with the authorities to implement the project.
Realizing that Phuc Khang could not fulfill its commitment, from July 2022 to June 2023, Ms. Daryanani sent multiple emails requesting Phuc Khang to refund the payment of more than 2 billion VND. However, this company has not yet done so.
According to the working minutes dated August 22, 2023 between TNTP International Law Firm & Associates (authorized representative of the above 2 customers) and Phuc Khang Investment and Construction Joint Stock Company, this enterprise confirmed the following content: "The Rome by Diamond Lotus project is expected to have its legal issues basically resolved by 2025 and the next steps will be taken (approval of investment policy, construction permit, etc.)".
Recently, Phuc Khang contacted the two customers mentioned above to send a contract liquidation report. In which, the company agreed to return the amount paid but with the condition that the customers must hand over to the company "all original contracts, appendices, drawings, invoices, receipts and related documents (if any)". Realizing the unreasonable request, these two customers did not agree.
Speaking to a reporter from Nguoi Lao Dong Newspaper, Ms. Nguyen Ngoc Huong, Marketing Director of Phuc Khang, affirmed that the Rome By Diamond Lotus project's legal documents were complete, so the company only received money from customers. "Let Phuc Khang and customers work together, we will solve it" - Ms. Huong said.
After that, we continued to contact and email Ms. Nguyen Ngoc Huong but until now have not received a specific answer about issues related to the project and transactions with customers.
Meanwhile, according to a reporter from Nguoi Lao Dong Newspaper on the morning of December 18, the Rome By Diamond Lotus project was fenced off outside, the surrounding tarpaulins were faded and about to tear. Inside was just an empty lot, a crane and some machinery, but no one was working or constructing.
Illegal contract?
Analyzing the legality of the Rome By Diamond Lotus project and the transaction between Phuc Khang and the customer, lawyer Truong Van Tuan, Trang Sai Gon Law Office, said that the deposit contract is to guarantee the signing of the sales contract.
If the project has not been approved by the competent authority for investment policy, but the investor has signed a deposit contract with customers since November 2018 and committed to notify the signing of the apartment sale and purchase contract on December 1, 2019, it can be considered illegal, because there is no guarantee that this project will be approved.
In addition, the investor's provision of false information caused customers to misunderstand the nature of the subject (project) and the content of the transaction, thus conducting the apartment deposit transaction, which is contrary to civil law. Therefore, based on Article 127 of the 2015 Civil Code, amended in 2017, the above deposit transaction is considered invalid.
Furthermore, from October 2019 to July 2022, the investor continuously sent documents about changing the project implementation time, the time of notification of signing the sales contract and the time of apartment handover, which is a violation of the obligations in the deposit contract.
In this case, the investor violated the 2014 Law on Real Estate Business because it committed a prohibited act under Clause 1, Article 8 when conducting real estate business without meeting the conditions prescribed by this law.
The legal consequences of invalid civil transactions are stipulated in Clause 2, Article 328 of the 2015 Civil Code. Accordingly, if the deposit recipient refuses to enter into or perform the contract (violating contractual obligations), he/she must return the deposit to the depositor and an amount of money equivalent to the value of the deposit, unless otherwise agreed.
A lawyer in the real estate sector also said that in order to sign a deposit contract between a customer and an investor, the project must fully comply with the provisions of Article 55 of the 2014 Law on Real Estate Business. "The situation of projects not having full legal documents but still receiving deposits from customers is quite common. Investors will usually use a subsidiary or a real estate trading floor to sign a deposit contract with customers," said this lawyer.
Source: https://nld.com.vn/mot-chu-dau-tu-bi-to-chiem-dung-von-196231218211609488.htm
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