ARUN KHANNA vs ORRIS INFRASTRUCTURE PVT LTD

The present complaint has been received on 20.03.2024 and reply on behalf of respondent was received on 30.07.2024. Succinct facts of the case as per complaint and annexures are as under: S. No. Particulars Details 1.        Name and location of the project “Aster Court Premier”, Sector-85, Gurugram 2.        Nature of the project Group Housing 3.        Project area 25.02 acres 4.        DTCP license no.                         39 of 2009 dated 24.07.2009 valid up to 23.07.2024 5.        Name of licensee Be Office Automation Products Pvt. Ltd. and 9 others 6.        RERA Registered/ not registered 415 of 2019 dated 13.10.2018 valid up to 30.10.2020 7.        RERA registration extension 19 of 2018/7(3)/2022/2 dated 01.01.2021 valid up to 31.12.2025 8.        Unit no. 901, 9th Floor & Tower-4B (As per page no. 41 of the complaint) 9.        Unit area admeasuring 2560 sq. ft. (Super area) (As per page no. 41 of the complaint) 10.    Allotment letter 01.05.2019 (As per page no. 41 of the complaint) 11.    Date of apartment buyer’s agreement  04.06.2019 (As per page no. 32 of the complaint) 12.    Possession clause   7.1 Schedule for Possession of the said unit On or before 30.06.2020 as per agreed terms and conditions unless there is delay due to force majeure. (As per page no. 48 of the complaint) 13.    Due date of possession 30.12.2022 30.06.2022 + 6 months of COVID 14.    Total sale consideration Rs.96,84,053/- (As per payment plan on page no. 75 of the complaint) 15.    Amount paid by the complainant Rs. 67,78,800/- (As alleged by the complainant on page no. 8 of the complaint) 16.    Occupation Certificate 11.06.2024 (Page 165 of reply) 17.    Offer to fit out for possession 03.04.2023 (As per page no. 152 of the reply) 18.    Reminder letter 08.04.2023 (As per page no. 154 of the reply) 19.    Pre cancellation 03.07.2023 (As per page no. 153 of reply) on account of non payment – amount to be paid within 10 days 20.    Cancellation letter 18.08.2023 (As per page no. 155 of reply) on account of non-payment 26.12.2023 (As per page no. 156 of reply)   The counsel for the complainant states that in terms of payment plan at Schedule – v of the BBA dated 04.06.2019,  as per the payment plan, 70% of the amount was to be paid upto 15.09.2019 and thereafter,  the balance 30% of the cost of the property plus IFMS was to be paid at the time of offer of possession.  The complainant had paid 70% of the amount of consideration by the due date  and  the respondent cancelled the unit of the complainant on 26.12.2023 due to  non payment of demand raised on 04.03.2023 without obtaining occupation certificate.  The offer of possession  was made on 04.03.2023 through email  which was invalid as  the same was sent without obtaining occupation certificate from the competent authority.  In view of the above,  the cancellation dated 26.12.2023 may be set aside and the complainant may be granted DPC  alongwith direction for handing over of possession. The counsel for the respondent states that the respondent filed a writ petition in the Hon’ble Punjab and Haryana, High Court vide CWP No. 3255 of 2023 for directing the DTCP to issue OC to the respondent  and  notice of motion was issued  on 17.02.2023 and despite two specific directions of the Hon’ble High Court, the DTCP did not grant provisional occupation certificate. The OC was finally granted on 11.06.2024. The respondent had made all efforts possible to obtain the OC within time.  The complainant had made multiple undertaking to make the payment of balance outstanding amount before the cancellation of the unit. Arguments heard. Order reserved. The parties may file written submissions within 15 days with an advance copy to each other. Matter to come up on 17.01.2025 for pronouncement of order.

The present complaint has been received on 20.03.2024 and reply on behalf of respondent was received on 30.07.2024. An application under section 36 has been filed by the respondent on 16.08.2024 wherein it is seeking recalling of order dated 31.05.2024. Vide proceeding dated 31.05.2024, it was held that : The counsel for the complainant states that on the last date of hearing, four matters were taken up together of the same complainant and an interim order was passed for maintaining status quo of the unit but inadvertently in three matters, the order of status quo could not be mentioned, hence, the complainant has filed an application for rectification of the same. Heard. The same is allowed. Previously on 28.05.2024, an application under section 39 of the Act was filed by the complainant, wherein the plea of the complainant was that all four complaints are of similar nature and are based on identical facts. So same interim order could be passed in all the four complaints and it was only an inadvertent error in three out of four complaints. Quoting the same, the matters were listed and heard on 31.05.2024. During this hearing, the bench agreed with the complainant's plea and allowed the application, thereby issued the same interim order for all four complaints. Now the counsel for the respondent is seeking recalling of order by filling an application under section 36  of the Act as firstly it had moved an application for adjournment for 31.05.2024 but the same has not been taken on record and secondly the subject unit has already been cancelled on 26.12.2023 i.e., much before the order dated 31.05.2024 (through which status quo has been maintained). It is observed that the respondent’s counsel presence was marked through its proxy counsel in order dated 31.05.2024 also an interim order of maintaining status quo has been passed for the subject unit which would not hamper the merits of the case in any way. Moreover, the said application is not maintainable being covered under the exception mentioned in 2nd proviso to section 39 of the Act, 2016. A reference in this regard may be made to the ratio of law laid down by the Haryana Real Estate Appellate Tribunal in case of Municipal Corporation of Faridabad vs. Rise Project vide appeal no. 47 of 2022 decided on 22.04.2022 and wherein it was held that the authority is not empowered to review its orders. Thus, in view of the legal position discussed above, there is no merit in the application dated 16.08.2024 filed by the respondent for recalling of order dated 31.05.2024 passed by the authority and  the same is dismissed. Matter to come up on 18.10.2024 for further proceedings in the main matter.

A request  has been  received from Shri Yogesh Yadav, Advocate through mail stating therein that he is unable to attend the court due to personal difficulty and requests for  an adjournment. Matter to come up on 29.11.2024 for further proceedings.

Since the Hon’ble Chairman/Members of the Authority are busy to attend the 2nd Annual Conference AIFORERA to be held from 16.07.2024 to 19.07.2024 at Kodaikanal (Tamil Nadu) hence,  the matter is adjourned to  16.08.2024 for pronouncement of order.

THE COUNSEL FOR THE COThe counsel  for the complainant states that on the last date of hearing,  four matters were taken up together of the same complainant and an interim order was passed for maintaining status quo of the unit but inadvertently in three matters,  the order of status quo could not be mentioned, hence,  the complainant has filed an application for rectification of the same.  Heard.  The same is allowed.Matter to come up on 19.07.2024 the date already fixed in this case for further proceedings.

The counsel for the complainant is seeking DPC and possession of the unit after setting aside the cancellation of the unit  whereas  the counsel for the respondent states that they had already applied for OC on 12.07.2021  and offer of possession was given to the complainant in March 2023 and further draws attention of the authority towards the decision of Punjab and Haryana High Court in which it has been clearly mentioned that provisional OC be granted to the respondent subject to the decision of the writ petition but the said provisional OC has not  yet been issued by the DTCP and DTCP had to file the reply in the case before the  Punjab and Haryana High Court for which DTCP sought time  in January 2024 and the matter was listed for 28.02.2024  when the matter could not be heard and it is still pending  before the Punjab and Haryana High Court. The counsel for the respondent states that it was already submitted during the proceedings dated 12.04.2024 that the unit of the complainant was cancelled on 26.12.2023 and   third party rights have already been created and they are ready to refund the amount to the complainant-allottee as per RERA norms. The counsel for the complainant states that they are not ready to accept the refund  and  further stated that how without valid OC, may be even provisional OC,  how the respondent can demand for the payment which he had to take from the allottee on offer of possession  and hence, the cancellation done by the respondent is on account of non-payment should be treated as null and void and should be set  aside. Matter to come up on 19.07.2024 for further proceedings as both the parties are not cooperating and fighting in between in the court itself.

The counsel for the respondent states that they have not received the copy of application filed by the complainant under section 36. The counsel for the complainant states that the respondent is offering them the possession whereas the OC of the unit has not been received till date. However, the respondent states that OC has already been applied.  Further stated that the complainant is ready to make the payment outstanding towards them if complete accounts statement is provided to him. The counsel for the respondent states that they have applied for OC way back in 2021 which is pending in the office of DTCP. Further an writ petition has been filed in the Hon’ble Punjab and Haryana High Court  as per which the Hon’ble Punjab and Haryana High Court passed an interim order directing the DTCP to provide provisional OC to the respondent till the writ is pending but still the provisional OC has not been provided to the respondent till date. Further states that the complainant allotee has booked 6 units all of which were cancelled by the respondent on account of default ln payment whereas the complainant-allottee made payment in January 2024 for two units and obtain NOC also from the respondent. Whereas counsel for the complainant states that they paid the amount against those two units as the OC of that tower in which those two units were situated had already been received by the respondent. Counsel for the respondent further stated that in November and December,2023 the complainant had agreed to make payment of balance amount of all the units. Further stated that the four units in question were cancelled after so many reminders such as reminder dated 3.4.2023, 3.7.2023, 18.8.2023 and 26.12.2023 and finally the units were cancelled on 26.12.2023. Whereas the counsel for the complainant states that 30% of the cost was to be paid by the complainant-allottee on offer of possession and hence there was no default on the part of the allottee in making the payment as the allottee was regularly asking for balance payment and status of OC and further stated that the payment already made by the complainant-allottee was 70% and hence he was obligated to make balance amount on valid offer of possession.  Arguments head. Order reserved of application filed under section 36 of the Act. Matter to come up on 17.5.2024 for further proceedings.