SANDEEP SETH AND NIKHIL SONI vs WELLWORTH PROJECT DEVELOPERS PVT. LTD.

In view of order dated 07.11.2024, the matter to come up before full bench on 21.01.2025 for pronouncement of order.

Since the Hon’ble Member is on leave, hence, the matter is adjourned to 09.01.2025 for pronouncement of order.

The counsel for the respondent has supplied a calculation sheet detailing out the lease rental as well as assured return  paid to the complainant allottees  to the counsel of the complainants and also filed in the registry today itself. Same matters pertaining to offer of constructive possession in contrary to the provisions for handing over possession in terms of BBA are pending before the full bench 10.12.2024 hence this case be also listed after that date. Matter to come up on 19.12.2024 before the full bench.

The present complaint was received on 29.05.2023 and the reply on behalf of respondent no. 1 was received on 29.11.2023. The counsel for the complainant states that vide clause 11 and 12 of buyers’ agreement, which specifically deals with procedure for taking of possession and handing over of possession, the respondent has promised to handover the possession of the subject unit i.e., physical handing over of possession. Since nowhere in the allotment letter or buyers’ agreement the words constructive possession has been used. Therefore, the offer of constructive possession (24.03.2022) is liable to be set aside since the same is never agreed inter se parties. The counsel for the respondent rebuts the argument of the complainant and has relied on clause ‘j’ of the booking application form wherein it has been specifically mentioned that the unit is not for the self-occupation or self-use. However, the counsel for the complainant has thrown light on clause 36 of the buyers’ agreement which categorically states that all the previous understandings, agreements are superseded on the execution of this agreement and at this stage the clause of the booking application form cannot be relied with. Arguments heard. Both the parties may file brief written submissions within next 3 weeks. Matter to come up on 07.11.2024 for pronouncement of orders.

Case has been called out but no one has appeared on behalf of the complainant today. One last and final opportunity is granted to the complainant to put in appearance and to argue the matter. Matter to come up on 12.09.2024 for further proceedings.

Due to paucity of time, the matter could not be heard. Matter to come up on 01.08.2024 for further proceedings.

The present complaint was received on 29.05.2023 and the reply on behalf of respondent no. 1 was received on 29.11.2023. On the last date of hearing i.e.,18.01.2024, respondent no. 2 was directed to file a reply within 15 days i.e., by 08.02.2024 in the registry with a copy to complainant. Today none appeared on behalf of respondent no. 2, nor has any written reply been filed till date. In view of the above, the defense of the respondent no. 2 stands struck off and proceeded as ex-parte. Succinct facts of the case as per complaint and reply are as under: S. No. Particulars Details 1.       Name of the project AIPL Joy Central 2.       Project location Sector 65, Badshahpur, Gurugram, Haryana 3.       Project type Commercial Colony 4.       DTCP License 183 of 2017 dated 14.09.2017 5.       HRERA registration Not registered 6.       Allotment letter dated 28.04.2017 (As per page no. 21 of the complaint) 7.       Date of unit buyer agreement 24.07.2017 (As per page no. 23 of the complaint) 8.       Unit no. 0067 on floor GF (As per page no. 30 of the complaint) 9.       Unit area admeasuring 73.11 sq. mtrs. (super area) (As per page no. 30 of the complaint) 10. Possession clause 1.2 The allottee agrees and understands that…. If however during the process of construction upon the process of construction upon expiry of 48 months or 54 months (including grace period), as the case maybe from 1 Sept 2017, there, ….. (As per page no 33 of the agreement) 11.              Environment Clearance Certificate N/A 12.              Due date of possession 01.03.2022 (As per page no 33 of the agreement) 13.              Total sale consideration Rs.11,018,000/-(plus Development charges) (As per page no. 33 of the complaint) 14.              Amount paid by the complainant Rs.1,30,78,986/- (As per conveyance deed on page no. 23 of reply) 15.              Assured Return 32. Where the Allottee has opted for Payment Plan as per Annexure-A attached herewith and accordingly, the company has agreed to pay Rs. 21,263/- per month by way of assured return to the Allottee from 28/04/2017 till date of issue of notice of Possession of the Unit. The return shall be inclusive of all taxes whatsoever payable or due on the return. (As per page no 44 of the complaint.) 16.       Assured return paid by respondent Rs.45,73,288/- (As per page 107 of reply) 17. Occupation certificate 24.12.2021 (Annexure R5) 18. Offer of possession 24.03.2022 (As per page no. 59 of the complaint)   The counsel for the complainants states that offer of possession made by the respondent on 24.03.2022  is only a constructive possession and not  a offer for physical hand over of possession which is required to be made as per clause 11 and 12 of the BBA.  Further as per BBA car parking number was to be specified which is not specified in offer and hence respondent be directed to make physical offer of possession with car parking as per BBA and to pay the assured return till such offer. The counsel for the respondent states that a valid offer of possession stands made on 24.03.2022 after obtaining OC and as per clause 33 to be read with clause 43 of the application form, the unit can be leased either singularly or combination. Both the parties may file written submissions within 2 weeks with an advance copy to each other. Matter to come up  on 25.07.2024 for further proceedings.

The present complaint was filed on 29.05.2023 and a reply on behalf of respondent no. 1 was received on 29.11.2023. However, no written reply has been filed by the respondent’s no. 2. One more and final opportunity is being given to respondent No.2 for filing of reply within 15 days with an advance copy to the complainant. In case reply is  not filed within the stipulated period, the defence of respondent No.2 shall be struck off. Matter to come up  on 04.04.2024 for further proceedings.

The present complaint was filed on 29.05.2023 and registered as complaint no. 2195 of 2023. Shri Harshit Batra Advocate has appeared on behalf of the respondent No.1 and filed power of attorney today and has handed over a copy of reply to the counsel for the complainant during proceedings  and shall be filing the same in the registry of the authority today itself. Matter to come up on 18.01.2024 for further proceedings.