DALMIA FAMILY OFFICE TRUST vs ANAND DIVINE DEVELOPERS PRIVATE LIMITED

The Since common questions of law and facts are involved in the below- mentioned complaints so for disposal of same the facts of complaint bearing no. CR47522021 titled as Dalmia Family Office Trust Vs Anand Divine Private Limited is considered. The present complaint has been received on 24.12.2021 and reply on behalf of respondent has been filed on 01.09.2022. The complainant filed application for amendment of relief dated 02.09.2022 and application under Section 36 of Act for issuing interim order. During the course of proceedings dated 01.09.2022 the aforesaid applications were supplied to the respondent and vide proceedings of even date the respondent was directed to file reply to the said applications. Further both the parties were also directed to file written submissions w.r.t maintainability of the complaint particularly in view of the arbitration proceedings being held parallel to proceedings under RERA. However due to noncompliance by the complainant it was decided during the preceeding dated to 13.10.2023 imposes a further penalty of Rs. 5 Lakhs under section 67 of the Act 2016 to be deposited within one week alongwith previously imposed penalty of Rs.50000- and to file the written submissions to the application on maintainability. It shall be the last opportunity. Matter was fixed for 09.04.2024before the full bench for further proceedings. The respondent through its written reply has challenged the complaint on the ground that the similar complaint is already pending before Justice Swatenter Kumar Retd. in the arbitration case no. 5 of 2021. But the complainant has not disclosed the facts that the present case is also pending before the other court and hence is liable to be dismissed on this ground. It has further contended that the complainant is asking for relief of possession for the very first time by this complaint only and had never demanded the possession of the unit. It also submitted in view of ongoing settlement it has handed post-dated cheques and 42 units as security towards payment. And henceis not covered in definition of allottee and this complaint is not maintainable before this Authority. However the counsel for the complainant has stated that simultaneously both the cases filed by the complainant can be heard as per Section 88 ad 89 of Act of 2016. Arguments heard. Matter to come up on 30.07.2024 for orders on the maintainability. Meanwhile the parties may file brief written submissions within a period of 3 weeks with an advance copy to each other.

It is strange to note that inspite of directions of the Authority passed on 12.05.2023, it was clearly stated that both the counsels must file written submissions with regard to maintainability issue  but the complainants have failed to file the written submissions till date.   Shri Sidhant Kumar Advocate on behalf of the complainant (s) has appeared today and seeks time to file power of attorney and to place on record certain citations in favour of the maintainability of the matter. The counsel for the respondent vehemently opposes the request of the advocate appearing on behalf of the complainant and states that the right of the complainant to file response should be struck off he had to file the reply within 15 days as per proceedings dated 12.05.2023 and neither the penalty  has been deposited in the registry of the authority nor the written submissions has been submitted which is again a violation of directions of the authority. The authority is of the view that  this sort of repeated violations of the directions of the authority are  undesirable  and hence, imposes a further penalty of Rs. 5 Lakhs under section 67 of the Act, 2016 to be deposited within one week alongwith previously imposed penalty of Rs.50,000/- and to file the written submissions  to the application on maintainability.  It shall be the last opportunity. Matter to come up on 09.04.2024  before the full bench for further proceedings.

The AR of the complainant has filed an application on behalf of the complainant and requesting for a short adjournment as their previous counsel has  refused to proceed with the matter and they are in the process of engaging a new counsel.  However,  it is strange to note that inspite of directions of the Authority on 12.05.2023 in which it was clearly stated that both the counsels must file written submissions with regard to maintainability issue  but the complainant as well as the respondent have failed to file the written submissions till date.   The counsel for the respondent states that he is ready to argue the matter but he has not filed the written submissions as he has nothing more to say except that what has been mentioned in the application on maintainability and reply already filed to the complaint. The counsel for the respondent further draws attention of the authority towards page 40 para No.7 of the complaint, where the complainant has stated  that the matter regarding which the complaint has been filed is not pending having similar relief  before any court of law whereas the matter is still pending before the Arbitral Tribunal which had passed an  interim relief on 12.10.2021  and the proceedings are still pending.  However,  the time period as per arbitral proceedings/Act has already lapsed  on 31.08.2023.  The complainant is hereby directed to file the written submissions within 2 weeks, with an advance copy to the respondent, as per directions of the Authority dated 12.05.2023, alongwith penalty of Rs. 50,000/-  under section 67 of the Act,  to be deposited with the Authority. Penalty is being imposed after hearing reply of AR of the complainant during proceedings, which carries no weight w.r.t. failure to file written submissions to application for non-maintainability as per directions of the authority. In case the written submissions are not received within 2 weeks, it shall be presumed that the complainant has nothing to say in this regard and the matter shall be decided on merits.   Matter to come up  on 05.01.2024 for further proceedings.