BHARAM SINGH AND OTHERS vs VENETIAN LDF PROJECTS LLP
Party Details
- BHARAM SINGH AND OTHERS
- VENETIAN LDF PROJECTS LLP
Case Summary
BHARAM SINGH AND OTHERS filed Case No. RERA-GRG-5369-2022 in the Haryana Real Estate Regulatory Authority (RERA) against VENETIAN LDF PROJECTS LLP. The case has undergone 7 hearings over 1 year and 5 months. The case is currently pending. 11 orders have been issued in this matter.
Hearing History (7)
- 15MAY 2024Hearing
Judge: ASHOK SANGWAN
1. The present complaint has been filed by the complainant/allottee under Section 31 of the Real Estate (Regulation and Development) Act, 2016 (in short, the Act) read with Rule 28 of the Haryana Real Estate (Regulation and Development) Rules, 2017 (in short, the Rules) for violation of Section 11(4)(a) of the Act wherein it is inter alia prescribed that the promoter shall be responsible for all obligations, responsibilities and functions under the provision of the Act or the Rules and regulations made thereunder or to the allottees as per the agreement for sale executed inter se. Unit and Project related details- S.No. Particulars Details 1. Name and location of the project 83 Avenue, Sector 83 Gurugram. 2. Nature of the project Commercial 3. DTCP license no. 12 of 2013 dated 15.03.2013 4. RERA Registered/ not registered Lapsed project Registered vide registration no. 310/42/2019 dated 16.01.2019 valid upto 30.09.2020 5. Unit no. Virtual space on 2nd floor 6. Unit admeasuring area 250 Sq. Ft. (Super Area) 7. Date of MOU 09.07.2014 (Page no. 9 of complaint) 8. Due date of possession 09.07.2017 (Deemed to be 3 years from date of execution of MOU) 9. Assured return Article 3. “Till the notice of offer of possession is issued, the developer shall pay to the allottee an assured return at rate of Rs. 80/- per sq. ft. per month of super area of premises per month. After completion of construction, till tenant is inducted possession is delivered to tenant and lease commences and rental is received by the allottee from the allottee, the developer shall pay to the allottee an assured return @ Rs. 66.65/- per sq. ft. per month of super area of premises per month. For a period of 3 years.” (Page no. 15 of complaint) 10. Total sale consideration (BSP) 15,00,000/- (Page no. 13 of complaint) 11. Total amount paid by the complainant 15,55,620/- (Page no. 14 of complaint) 12. Occupation certificate Not obtained 13. Offer of possession Not offered 14. Date of final judgement in previous complaint no. 175/2018 – Relief of Refund, assured returns and possession(in alternative) being sought 17.11.2018 (Direction to complainant to approach the appropriate forum as Authority had no jurisdiction to deal with relief of assured returns with a direction to the respondent to complete construction as per MOU being executed between the parties and fulfil its committed liability) (Page no. 27 of complaint) Relief sought by the complainant – Direct the respondent to refund entire paid-up amount along with prescribed rate of interest. 2. An application dated 29.03.2023 has been filed by the respondent challenging the maintainability of present complaint on the ground of res judicata wherein it is alleged by the respondent that it is an admitted fact by the complainants that a complaint bearing no. CR/175/2018 had been previously filed by the complainant before this Authority seeking the relief of refund, assured return and possession (in alternative to refund). It is stated that the Authority vide its order dated 17.11.2018 directed the respondent/builder to complete the construction work within the time frame as per MOU and fulfil his committed liability. It is further stated that withdrawing from the project and continuing in the project are two distinct reliefs and after direction for completion of the project was made in the previous case, under no circumstance can refund be sought in the present complaint. Also, the order dated 17.11.2018 was not a conditional order giving liberty to the complainant to seek refund. Therefore, it is pleaded by the respondent that no cause of action whatsoever persists in favor of the complainant to file the present case. 3. A reply to the said application has been filed by the complainant dated 18.07.2023 wherein it is stated by the complainant that the issue raised in the previous complaint was to recover the assured return amount from the respondent but the issue in the present complaint is to get refund of the entire sale consideration amount along with interest from the respondent. It is further stated that both the complaints have been filed with a different cause of action and moreover in previous complaint, the Authority had no jurisdiction to grant the relief sought by the complainant. It is further stated that the complainant had waited for 5 long years to get the delivery of the said unit but the respondent had not fulfilled its committed liability as per MOU and did not comply with the order of this Authority. Therefore, the application filed by the respondent is liable to be dismissed and present complaint should be proceeded further in the interest of justice. 4. Issue involved- Whether the present complaint filed by the complainant is maintainable or not ? On 10.04.2024, the arguments of both the parties were heard and order was reserved on the point of maintainability. thereafter, the matter was listed on 15.05.2024 for pronouncement of order on maintainability. 5. Findings of the Authority- After going through the written as well as verbal submissions of both the parties, the Authority observes that a complaint vide CR No. 175 of 2018 had earlier been filed between the same parties and the relief sought in the complaint was as under- i. Amount paid for 250 sq. ft. virtual space, i.e., Rs.15,55,620/- ii. Assured return amount from January 17 to 15.07.2017 @ Rs.10,000/- for each month amounting to Rs,1,30,000/-. iii. TDS not deposited to IT department for financial year 2016-17, i.e., Rs.18,000/- iv. Interest @ 12% for 16 days for the month of July, 2017, i.e., Rs.9,086/-. v. Interest @ 12% from August 2017 to March 2018, i.e., Rs.1,36,920/-. OR vi. Possession of the unit having super area of approximately 250 sq. ft. in the said complex should be delivered to the petitioners. 6. The operating part of the order passed by the Authority on 17.11.2018 is as under: “21. ……………… Complainant entered into an assured return scheme + plan for prospective owning of the area (not specified in MOU). However, no specific date for grant of possession has been placed on record, it is only MOU which cannot be treated to be a contractual agreement between the parties. As already decided by the Authority in complaint no. 141 of 2018 titled as Brhimjeet versus M/s Landmark Apartments Pvt. Ltd. no case is made out by the complainant. Counsel for respondent has placed on record a Supreme Court judgment dated 25.7.1997 vide which he has pleaded the doctrine of precedent. Since the authority has taken a view much earlier as stated above, the authority cannot go beyond the view already taken. In such type of assured return schemes, the authority has no jurisdiction, as such the complainant is at liberty to approach the appropriate forum to seek remedy. However, at the instance of the complainant, a direction is issued to the respondent/builder to complete the construction work within the time framed as per MOU and fulfil his committed liability. 22. The respondent has been asked to register the project at the earliest and this shall be treated as show cause notice as to why penal proceedings should not be initiated against the respondent under Section 59 for violation of Section 3(1) Act, ibid, whereunder the penalty amount may extend upto 10% of the estimated cost of the project. 23. Detailed order is pronounced. 24. File be consigned to the registry.” 7. The Authority observes that a detailed order on merits has already been passed on 17.11.2018 between the same parties on same subject matter litigating under same title after considering facts of the case. Further, the relief of refund was already pressed by the complainant in the former case. While deciding the former complaint case no. 175 of 2018, the Authority gave liberty to the complainant to approach the appropriate forum for redressal of his grievances. In case the complainant was dissatisfied with the order of the Authority, he was free to file an appeal against the said order before the appropriate forum. 8. The Authority is of the view that it cannot re-examine a case that has already been conclusively decided by the same forum, involving the same parties, subject matter, and under the same title. The Authority lacks the jurisdiction to review its own order as the matter in issue between the same parties has been heard and finally decided by this Authority in the former complaint case no. 175 of 2018. No doubt, one of the purposes behind the enactment of the Act was to protect the interest of consumers. However, this cannot be fetched to an extent that basic principles of jurisprudence are to be ignored. 9. It is also observed that a subsequent complaint on same cause of action is barred by the principle of res-judicata as provided under Section 11 of the Code of Civil Procedure, 1908 (CPC). Section 11 CPC is reproduced as under for ready reference: “11. Res judicata.—No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. ………………………………..” (Emphasis supplied) 10. Although the provisions of the Code of Civil Procedure, 1908 (CPC) are, strictly not applicable to the proceedings under the Act, save and except certain provisions of the CPC, which have been specifically incorporated in the Act, yet the principles provided therein are the important guiding factors and the authority being bound by the principles of natural justice, equity and good conscience has to consider and adopt such established principles of CPC as may be necessary for it to do complete justice. Moreover, there is no bar in applying provisions of CPC to the proceedings under the act if such provision is based upon justice, equity and good conscience. Thus, in view of the factual as well as legal provisions, the present complaint stands dismissed being not maintainable. File be consigned to the registry.
Stage: DISMISSED
- 10APR 2024Hearing
Judge: ASHOK SANGWAN
The present complaint was filed on 22.08.2022 and the reply on behalf of respondent was received on 26.12.2023. The respondent has challenge the maintainability of the complaint on the grounds of res judicata stating that the matter was earlier decided by this Authority in CR No.174/2018. Reply has been statedly submitted by the complainant. However, the same is not available on record. The complainant is directed to file a copy of reply in the registry within a week and also provide the same to the respondent. Arguments heard. Order reserved on the point of maintainability. Matter to come up on 15.05.2024 for pronouncement of order on maintainability.
Stage: RESERVED
- 3JAN 2024Hearing
Judge: VIJAY KUMAR GOYAL ASHOK SANGWAN
The present complaint was filed on 22.08.2022 and the reply on behalf of respondent was received on 26.12.2023. Matter to come up on 10.04.2024 for further proceedings.
Stage: PENDING
Orders (11)
- 15MAY 2024orderView Order ↗
Order No: N/A
- 15MAY 2024judgementView Order ↗
Order No: N/A
- 10APR 2024orderView Order ↗
Order No: N/A
Judgement DetailsView full order PDF ↗
HARERE HARYANA REAL ESTATE REGUTATORY AUTHORITY GURUGRAM M.
GURUGRAM aRqrqT T-Tfr<r frftqmo rrrfu.Dvur, Usil-q PROCEEDINGS OF THE DAY Day and Date Complaint No.
Complainant Represented through Respondent *rr"r*r, *r**r"a *-,", New PWD Rest House, Civil Lines, Gurugram, Haryana Rird ilr${r Wednesday and 1,5.05.2024 CR/5369 /2022 Case titled as Bharam Singh VS Venetian Ldf Projects Llp Bharam Singh Shri Akash Gupta Advocate Venetian Ldf Projects Llp Ms.
Tanya Advocate Last date of hearing 1.0.04.2024 Proceeding Recorded by Naresh Kumari and HR Mehta Proceedings-cum-order 1.
The present complaint has been filed by the complainant/allottee under Section 31 of the Real Estate (Regulation and Development) Act, 20t6 (in short, the ActJ read with Rule 28 of the Haryana Real Estate fRegulation and Development) Rules, 2017 (in short, the Rules) for violation of Section 11(a)[a) of the Act wherein it is inter a/ia prescribed that the promoter shall be responsible for all obligations, responsibilities and functions under the provision of the Act or the Rules and regulations made thereunder or to the allottees as per the agreement for sale executed inter se.
Particulars Details Name and location of the B3 Avenue, Sector 83 Gurugram. proiect Nature of the proiect Commercial DT'CP license no.
12 of 201,3 dated 15.03.2013 RERA Registered/ registered Unit no. not Lapsed proiect -.1 Registered vide 3L0 /42 /2019 dated upto 30.09.2020 registration no.
L6.01,.2079 valid Unit and Project related details- Virtual space on 2nd floor An Authority constituted under section 20 the Real Estate (Regulation and Development) Act, 2016 r1-{v-a 1fuB-ara 3it{ futrrs) rfrrfrrra' 2010f,r qrfi 2ot'rrf,'ra qfut clfufi-{ur 1.4 6ffi U A n f n .r\ HARYANA REAI ESTATE REGUTATORY AUTHORIIY m nfal(tr|( cURUGRAM L0_ I SZ Lq lZ_a>_ m- GURUGRAM ERqrqr +1-qffi frMo vrfuqdur,l{srrq New PWD Rest House, Civil Lines, Gurugram, Haryana rqr fr.s-'q.*. ftaIrfr T6,Rfud a$g,epfia'6ff+tun Re pa b. unlt admeasurlng area 7. ng area 7.
Date of MOU 09.07.201,4 fPage no.
9 of complaint) B.
Due date of possession 09.07.201.7 [Deemed to be 3 years from date of execution of MOU') 9.
Assured return Article 3. "Till the notice of offer of possession is issued, the developer shall pay to the allottee an assured return at rate of Rs.
B0/- per sq. fi. per month of super area of premises per month.
After completion of construction, till tenant is inducted possession is delivered to tenant and lease commences and rental is received by the allottee from the allottee, the developer shall pay to the allottee an assured return @ Rs.
66.65/- per sq. ft. per month of super area of premises per month.
For a period of 3 years." fPaee no. ].5 of complaint) 10.
Total sale consideration IBliP) 15,00,000/- (Page no.
13 of complaint) 11..
Total amount paid by the complainant 15,55,620 /- fPaee no.
14 of complaint) 1.2.
Occupation certificate Not obtained 13.
0ffer of possession Not offered 1.4.
Date of final iudgement in previous complaint no.
L75/ZOLB - Relief of Refund, assured returns and possession[in alternative) being sought L7.LL.ZOTB (Direction to complainant to approach the appropriate forum as Authority had no jurisdiction to deal with relief of assured returns with a direction to the respondent to complete construction as per MOU being executed between the parties and fulfil its committed liability) fPase no.27 of complaintJ rlief so rid-up i ught by the complainant - rmount along with prescrl Direct the respondent to refund entire bed rate of interest. n" autiro.lty constituted under section 20 the Real Estate (Regulation and Development) Act, 2016 q-{ra 1Bfrara 3itr futrsl nfofrqq, 2016f,T tIRr 20*'3r+'ra zrftrc $fu6-{ur ffiHARERA ffi.
GunuennHr GURUGRAM Ckl Sib1 I o,??-- ERqrq-r r1-fiwcr frft{mr6 ffi gurTq HARYANA REAt ESTATE REGUTAIORY AUIHORITY New PWD Rest House, Civil Lines, Gurugram, Haryana r+r fr.se-enfi. frr,nq rg. frr,nq rg.frfiIe erlg rmarq 6ftfiun app respondent challenging the maintainability of present complaint on the ground of res iudicata wherein it is alleged by the respondent that it is an admitted fact by the complainants that a complaint bearing no.
CR/175/2018 had been previously filed by the complainant before this Authority seeking the relief of refund, assured return and possession fin alternative to refund).
It is stated that the Authority vide its order dated 17.1L.201.8 directed the respondent/builder to complete the construction work within the time frame as per MOU and fulfil his committed liability.
It is further stated that withdrawing from the project and continuing in the project are two distinct reliefs and after direction for completion of the project was made in the previous case, under no circumstance can refund be sought in the present complaint.
Also, the order dated 17.11.201,8 was not a conditional order giving liberty to the complainant to seek refund.
Therefore, it is pleaded by the respondent that no cause of action whatsoever persists in favor of the complainant to file the present case.
3.
A reply to the said application has been filed by the complainant dated 18.07.2O23 wherein it is stated by the complainant that the issue raised in the previous complaint was to recover the assured return amount from the respondent but the issue in the present complaint is to get refund of the entire sale consideration amount along with interest from the respondent.
It is further stated that both the complaints have been filed with a different cause of action and moreover in previous complaint, the Authority had no jurisdiction to grant the relief sought by the complainant.
It is further stated that the complainant had waited for 5 long years to get the delivery of the said unit but the respondent had not fulfilled its committed liability as per MOU and did not comply with the order of this Authority.
Authority.
Therefore, the application filed by the respondent is liable to be dismissed and present complaint should be proceeded further in the interest of justice.
4.
Issue involved- Whether the present complaint filed by the complainant is maintainable or not ?
0n 10.04.2024,the arguments of both the parties were heard and order was reserved on the point of maintainability, thereafter, the matter was listed on 1,5.05.2024 for pronouncement of order on maintainability.
5.
Findings of the Authority- After going through the written as well as verbal submissions of both the parties, the Authority observes that a complaint vide An Authority constituted under section 20 the Real Estate (Regulation and Development) Act, 2016 {-{'T{T (EA-{a-d rt{ fuo.m) lflfi-fi, 2o16fl qnr 2ot'rrfrrd rfra clfu6-{uI HARERE ffi, GURUGRAM HARYANA REAT ESIAIE REGUTATORY AUTHORIIY GURUGRAM CKI S 9611 vo-->- EfunurT T-sq(r frftqrro t'rD$-{ur, ts-jrq New PWD Rest House, Civil Lines, Gurugram, Haryana a-qr fi,sc-eq,.S.
Barq ,16,Rfril il6s,{t-{rfr,Ekqrqr ad earller been the relief sought in the complaint was as under- i.
Amount paid for 250 sq. ft. virtual space, i.e., Rs.15 ,55,620/- ii.
Assured return amount from f anuary 17 to 1,5.07.2017 @ Rs.10,000 /- for each month amounting to Rs,1,30,000/-. iii, TDS not deposited to IT department for financial year 2016- L7,i.e., Rs.18,000/- iv.
Interest @ 12o/o for 16 days for the month of July, 201.7, i.e., Rs.9,086/-. v.
Interest @ 1,2o/o from August 2017 to March 201,8, i.e,, Rs.1,36,920 /-.
OR vi.
Possession of the unit having super area of approximately 250 sq. ft. in the said complex should be delivered to the petitioners.
6.
The operating part of the order passed by the Authority on 1,7 ,11,2018 is as under: "2L.
Complainant entered into an assured return scheme + plan for prospective owning of the area (not specified in M)U). d in M)U).
However, no specific date for grant of possession has been placed on record, it is only MOU which cannot be treated to be a contrqctual agreement between the parties.
As already decided by the Authority in complaint no.
141 of 2018 titled as Brhimjeet versus M/s Lctndmark Aportments Pvt, Ltd. no case is made out by the complainant.
Counsel for respondent has placed on record a Supreme Court judgment dated 25,7.1997 vide which he has pleaded the doctrine of precedent.
Since the authority has taken a view much earlier as stated above, the authority cannot go beyond the view already taken.
In such tytrte of assured ret,urn schemes, the authority has no iurisdiction, as such the complainant is at libergt to approoch the appropriate forum to seek remedy, However, ot the instance of the complainant, a direction is issued to the respondent:/builder to complete the construction work within the time framed as per MOU ond fulfil his committed liability.
22.
The respondent has been asked to register the project at the earliest and this shall be treated as show cause notice as to why penal proceedings should not be initiated against the respondent under Section 59 for An Authority constituted under section 20 the Reat Estate (Regutation and Development) Act,2016 q-dycr (Efrcra 3it{ fuorr1 srfufrcq, 2016f,I qrr 20+ rrf,T d zrfua slfuolur LIABEB& GURUGRAM HARYANA REAL ESTATE REGUTATORY AUTHORITY cURUGRAM Ckl {76q1 hz>- ERqlurT .I_rfwr frftqmo sTHm.{rT, giiffi New PWD Rest House, Civil Lines, Gurugram, Haryana a-qr fr Rfua ffi {t.arq 6ftqrqr vrclation whereunder penalty amount may extend upto 10% of the estimated cost of the project.
23.
Detailed order is pronounced, 24.
File be consigned to the registry." 7.
The Authority observes that a detailed order on merits has already been passed on \7.1,1..2018 between the same parties on same subject matter litigating under same title after considering facts of the case. the case.
Further, the relief of refund was alreerdy pressed by the complainant in the former case.
While deciding the former complaint case no.
175 of 2018, the Authority gave liberty to the complainant to approach the appropriate forum for redressal of his grievances.
In case the complainant was dissatisfied with the order of the Authority, he was free to file an appeal against the said order before the appropriate forum.
B.
The Authority is of the view that it cannot re-examine a case that has already been conclusively decided by the same forum, involving the same parties, subject matter, and under the same title.
The Authority lacks the jurisdiction to review its own order as the matter in issue between the same parties has been heard and finally decided by this Authority in the former complaint case no.
175 of 2018.
No doubt, one of the purposes behind the enactment of the Act was to protect the interest of consumers, However, this cannot be fetched to an extent that basic principles of jurisprudence are to be ignored, 9.
It is also observed that a subsequent complaint on same cause of action is barred by the principle of res-judicata as provided under Section 11 of the Code of Civil Procedure, L90B [CPC).
Section 11 CPC is reproduced as under for ready.reference: "71.
Res judicata.-No Court sholl try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit betvveen the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. (Emphasis supplied) 0.
Although the provisions of the Code of Civil Procedure, 1908 [CPC) are, strictly not applicable to the proceedings under the Act, save and except theRealEstate(RegulationandDevelopment)Act,2016 {-itrfl 1Bfti-ra 3ilr fu6rs) sfufrrr s) sfufrrrq, 2016+I qro 20t'rrt'rd ztfud clfufi-{sr HARER& GURUGRAM HARYANA REAI ESTATE REGUTATORY AUTHORIIY GURUGRAM L Ll Sg 6l I zoz>- EfrqruTr T-TiErEr ftf+rnro srBo,{ur, ttqn I New PWD Rest House, Civil Lines, Gurugram, Haryana a-qr fr.se-Fq.S. hafiq rf6 RBa a6g rlsqrq,EtIqrun din the Act, yet the principles provided therein are the important guiding factors and the authority being bound by the principles of natural justice, equity and good conscience has to consider and adopt such established principles of CPC as may be necessary for it to do complete justice.
Moreover, there is no bar in applying provisions of CPC to the proceedings under the act if such provision is based upon justice, equity and good conscience.
Thus, in view of the factual as well as legal provisions, the present complaint stands dismissed being not maintainable.
File be consigned to the registry. nAushffi, Ntembef Ls.0s.2v24 An Authority constituted under section 20 the Real Estate (Regulation and Deveiopment) Act, 2016 r1-iva 1frfr<'ra rk furrt1 rrfufi-cq' 2o16fl qrfi 2ot' 3rf,T d zrfttd mfu6-{ur