DALMIA FAMILY OFFICE TRUST vs ANAND DIVINE DEVELOPERS PRIVATE LIMITED

Order could not be pronounced today. Matter to come up on 10.09.2024 for pronouncement of order on the point of maintainability.

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.

The proxy counsel for the complainant requests for a short adjournment as the main counsel Shri Rahul Bhardwaj Advocate is not available today due to ill health. Request is allowed. Matter to come up  on 13.10.2023 for further proceedings.v

The counsel for the complainant states that he has filed an application for amendment of relief as well as reply to the query of maintainability of the main complaint raised by the counsel for the respondent. The counsel for the respondent states that  once the question of maintainability is raised by him, the amendment of a relief/amendment in main complaint should not be allowed and rather the question of maintainability should be decided first. The counsel for the complainant states that he has filed an application for the interim relief, long back but the reply of the same is still awaited.   The counsel for the respondent states that they are handing over the reply to the application for interim relief just now during the course of proceedings and shall be filed in the registry of the authority by Monday i.e.15.05.2023. However, he further states that still in the interim relief application, the complainant is not clarifying the position of ownership of the flats vis-a-vis interim arbitration order. The counsel for the respondent states that it was a sort of financial arrangement  between the complainant and the respondent and  the respondent had issued certain allotment letters and signed BBA of those units.  However,   there was a master agreement  signed by both the parties which states that  the complainant shall not invoke the BBA  to take possession, rather,  shall take back the money from the respondent as per agreed terms mentioned in master agreement and still the complainant filed a case in High Court from where an arbitrator was appointed and the arbitrator given  an interim order dated 12.11.2021 as per page 11 to 27 of the reply (Annexure R2). The counsel for the complainant states that although the settlement talks are going on still he wants to pursue his application for interim relief,  however, reply to the application of interim relief filed on 02.09.2022 has been filed today during the proceedings and the same is yet to be filed in the authority and the authority has yet to review it. Hence,  the interim relief application dated 02.09.2022 is being fixed for arguments on 26.05.2023 alongwith main complaint. Part arguments heard. Both the counsels are directed to file written submissions regarding maintainability within a period of 10 days with an advance copy to each other otherwise the authority is bound to proceed further exparte or on basis of records available in the file of the authority. This should be treated as final and last opportunity for filing the written submissions. Matter to come up on 26.05.2023 for further proceedings and arguments.

The counsels for both the parties seek an adjournment as the settlement talks between the parties are still in progress. Request is allowed. Both the parties are directed to file settlement deed if the matter is amicably settled failing which matter shall be heard on merits. Matter to come up on 12.05.2023 for further proceedings.

The counsel for the complainant requests for a short adjournment for addressing arguments. Heard. Request is allowed. Matter to come up on  06.12.2022  for further proceedings.

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. CR/4752/2021 titled as Dalmia Family Office Trust Vs Anand Divine Private Limited is considered. NAME OF THE BUILDER & PROJECT NAME ANAND DIVINE PRIVATE LIMITED ATS TRIUMPH S.no Complaint no. Complaint title 50 CR/4752/2021 Dalmia Family Office Trust V/S Anand Divine Private Limited 51 CR/4753/2021 Dalmia Family Office Trust V/S Anand Divine Private Limited 52 CR/4812/2021 Dalmia Family Office Trust V/S Anand Divine Private Limited 53 CR/4808/2021 Dalmia Family Office Trust V/S Anand Divine Private Limited 54 CR/4787/2021 Dalmia Family Office Trust V/S Anand Divine Private Limited 55 CR/4774/2021 Dalmia Family Office Trust V/S Anand Divine Private Limited 56 CR/4789/2021 Dalmia Family Office Trust V/S Anand Divine Private Limited 57 CR/4754/2021 Dalmia Family Office Trust V/S Anand Divine Private Limited 58 CR/4803/2021 Dalmia Family Office Trust V/S Anand Divine Private Limited 59 CR/4804/2021 Dalmia Family Office Trust V/S Anand Divine Private Limited 60 CR/4805/2021 Dalmia Family Office Trust V/S Anand Divine Private Limited 61 CR/4810/2021 Dalmia Family Office Trust V/S Anand Divine Private Limited 62 CR/4809/2021 Dalmia Family Office Trust V/S Anand Divine Private Limited 63 CR/4776/2021 Dalmia Family Office Trust V/S Anand Divine Private Limited 64 CR/4788/2021 Dalmia Family Office Trust V/S Anand Divine Private Limited 65 CR/4777/2021 Dalmia Family Office Trust V/S Anand Divine Private Limited 66 CR/4811/2021 Dalmia Family Office Trust V/S Anand Divine Private Limited 67 CR/4778/2021 Dalmia Family Office Trust V/S Anand Divine Private Limited 68 CR/4751/2021 Dalmia Family Office Trust V/S Anand Divine Private Limited 69 CR/4749/2021 Dalmia Family Office Trust V/S Anand Divine Private Limited 70 CR/4775/2021 Dalmia Family Office Trust V/S Anand Divine Private Limited 71 4743/2021 Dalmia Family Office Trust V/S Anand Divine Private Limited 72 4741/2021 Dalmia Family Office Trust V/S Anand Divine Private Limited 73 4744./2021 Dalmia Family Office Trust V/S Anand Divine Private Limited 74 4742/2021 Dalmia Family Office Trust V/S Anand Divine Private Limited 75 4745/2021 Dalmia Family Office Trust V/S Anand Divine Private Limited   The counsel for the complainant submitted to file an application for amendment of the complaint.  The copy of the amended complaint be handed over to the counsel for the respondent  and copies be submitted in the registry individually for each case.  Reply to the amended application be filed by the respondent within 2 weeks in the registry otherwise their defense may be struck off.  Both the counsels were asked to submit written submissions regarding maintainability of the complaint particularly in view of the arbitration proceedings being held parallel to proceedings in RERA. The counsel for the complainant also moved an application for interim prayer in the matter, the copy of which was supplied to the counsel for the respondent and copy of the application was taken on record. The counsel for the respondent is directed to file his reply within 2 weeks so that authority may consider the interim prayer made by the complainant. The reply be submitted in the registry. The copy of the replies handed over to the counsel for the complainant during the proceedings.  Matters to come up on 27.09.2022  for further proceedings.

The Authority is organizing SEWOCON of Resident Welfare Association, Gurugram today i.e. 29.04.2022 and as such, in view of the same, the matter is adjourned.              Reply has not yet been filed till date. The respondent is directed to file the same within 15 days with an advance copy to the complainant.               Matter to come up on   01.09.2022  for further proceedings.

The Authority is busy in preparation of Haryana Urban Development Conclave, Future Road Map for Urban Development and Implementation of RERA to be held on 25.02.2022 and26.02.2022. In view of the same, the matter is adjourned to 29.04.2022 for the purpose as already fixed.