DR LT COL BINNY KOHLI vs NEO DEVELOPERS PVT.LTD.

Application on behalf of the complainant under Section 39 of the Real Estate (Regulation And Development) Act, 2016 for rectification/ modification/ amendment of the zimni Order Dated 30.07.2024. The counsel for the respondent  to file reply to the above application within 3 weeks after supplying a copy to the counsel for the complainant. Matter to come up on 25.03.2025 for further proceedings.

Due to lack of Coram,  the matter is adjourned to 24.12.2024  for the purpose as already fixed.

The present complaint was received on 10.08.2022 and reply on behalf of respondent was filed on 17.01.2023. Part arguments heard. The complainant states that they had purchased 7 units in the present project i.e. ‘Neo Square’ situated in Gurgaon and had separately applied for the allotment of 2 other residential units in a different project i.e. ‘Capital Residency’ at New Delhi. Due to their personal reasons, the complainants surrendered their allotment in both projects of the respondent i.e. Neo Square and Capital Residency and requested for refund of he paid up amount towards the sale consideration of the unit. The respondent had refunded an amount of Rs. 24,20,832/- against the 2 units booked by the complainants in the project ‘Capital Residency’ and Rs. 5,79,168/- (after deduction of earnest money, assured return already paid to the complainants etc) against the 7 units booked in the instant project  i.e. ‘Neo Square’. The counsel for the complainant further states that the respondent-builder cancelled the subject unit on 06.07.2021. Before the cancellation, the respondent-builder did not issue any demands or provide a pre-cancellation notice. On the contrary, the respondent-builder states that the present complainants had filed a consumer complaint bearing No. 732 of 2021 titled as "Mr. Rajesh Banbah & Anr. vs Neo Developers Pvt. Ltd." before the Ld. District Consumer Dispute Redressal Commission, Gurgaon (hereinafter referred to as the "DCDRC") wherein, the complainants had sought refund of the amounts paid against the allotment of two (2) shops in the project "Capital Residency". Accordingly, the Ld. DCDRC passed the Final Order dated 05.05.2023. As per the observations of the Hon'ble DCDRC recorded in the said Order, the amounts refunded by Neo Developers Pvt. Ltd to the complainants pertains to the Project "Nep 3 Square" only. That the said order was brought to the knowledge of the ld. authority during the hearing dated 04.07.2023.  Matter to come up on 15.10.2024 for further arguments.

Due to administrative exigency,  the matter is adjourned to 30.07.2024 for the purpose as already fixed.

The present complaint was received on 09.08.2022 and reply on behalf of respondent was filed on 17.01.2023. The complainants had purchased 7 units in the present project i.e. ‘Neo Square’ situated in Gurgaon and had separately applied for the allotment of 2 other residential units in a different project i.e. ‘Capital Residency’ at New Delhi. Due to their personal reasons, the complainants surrendered their allotment in both projects of the respondent i.e. Neo Square and Capital Residency and requested for refund of he paid up amount towards the sale consideration of the unit. The respondent had refunded an amount of Rs. 24,20,832/- against the 2 units booked by the complainants in the project ‘Capital Residency’ and Rs. 5,79,168/- (after deduction of earnest money, assured return already paid to the complainants etc.) against the 7 units booked in the instant project  i.e. ‘Neo Square’. Thereafter, the present complainants had filed a consumer complaint bearing No. 732 of 2021 titled as "Mr. Rajesh Banbah & Anr. vs Neo Developers Pvt. Ltd." before the Ld. District Consumer Dispute Redressal Commission, Gurgaon (hereinafter referred to as the "DCDRC") wherein, the complainants had sought refund of the amounts paid against the allotment of two (2) shops in the project "Capital Residency". Accordingly, the Ld. DCDRC passed the Final Order dated 05.05.2023. As per the observations of the Hon'ble DCDRC recorded in the said Order, the amounts refunded by Neo Developers Pvt. Ltd to the complainants pertains to the Project "Neo 3 Square" only. That the said order was brought to the knowledge of the Ld. Authority during the hearing dated 04.07.2023. The respondent builder filed a rectification application dated 11.01.2024   under section 39 of the Act for the rectification of zimni order dated 04.07.2023 and modification of order dated 31.10.2023 stating that  when the Order of the proceedings dated 04.07.2023 was uploaded on the portal of the Ld. Authority on 02.08.2023, the respondent was shocked to see that the order inadvertently recorded that the counsel for the respondent have stated that they wish to file an amended reply w.r.t the calculations of refundable amount in detail. Relevant extract of zimni Order dated 04.07.2023 is reproduced herein below: The counsel for the respondent further states that they wish to file an amended   reply w.r.t. the calculations of refundable amount in detail."  It is important to bring it to the knowledge of the Ld. Authority that the respondent could not have made the afore-referred statement. That post hearing dated 04.07.2023 the matter was listed for hearing on 31.10.2023.  On the said date the Ld. Authority relying upon the previous order i.e., order dated 04.07.2023 wherein it has been inadvertently recorded that the respondent stated and wished to file an amended reply with respect to calculations of the refundable amount in detail, passed an order dated 31.10.2023 directing the respondent to file the amended reply with respect to the calculation of the refundable amount along with cost of 10,000/- to be paid to the complainants.     In the said application respondent prays that :- 1.     Rectify the zimni order dated 04.07.2023 by making necessary changes in the order by correcting the error inadvertently made. 2.     Modify the order dated 31.10.2023 and waive off the cost of Rs. 10,000/- imposed on the complainant. The complainant filed reply to the application under section 39 of the Act 2016 and states that the respondent had appeared before the Authority and did not submit their stand as mentioned. Heard. Application u/s 39 of the Act is allowed. Cost is waived off. Matter to come up on 07.05.2024 for final arguments.  No further date shall be given.

The present complaint was received on 09.08.2022 and reply on behalf of respondent was filed on 17.01.2023. The complainants had purchased 7 units in the present project i.e. ‘Neo Square’ situated in Gurgaon and had separately applied for the allotment of 2 other residential units in a different project i.e. ‘Capital Residency’ at New Delhi. Due to their personal reasons, the complainants surrendered their allotment in both projects of the respondent i.e. Neo Square and Capital Residency and requested for refund of he paid up amount towards the sale consideration of the unit. The respondent had refunded an amount of Rs. 24,20,832/- against the 2 units booked by the complainants in the project ‘Capital Residency’ and Rs. 5,79,168/- (after deduction of earnest money, assured return already paid to the complainants etc) against the 7 units booked in the instant project  i.e. ‘Neo Square’. Thereafter, the present complainants had filed a consumer complaint bearing No. 732 of 2021 titled as "Mr. Rajesh Banbah & Anr. vs Neo Developers Pvt. Ltd." before the Ld. District Consumer Dispute Redressal Commission, Gurgaon (hereinafter referred to as the "DCDRC") wherein, the complainants had sought refund of the amounts paid against the allotment of two (2) shops in the project "Capital Residency". Accordingly, the Ld. DCDRC passed the Final Order dated 05.05.2023. As per the observations of the Hon'ble DCDRC recorded in the said Order, the amounts refunded by Neo Developers Pvt. Ltd to the complainants pertains to the Project "Nep 3 Square" only. That the said order was brought to the knowledge of the ld. authority during the hearing dated 04.07.2023. The respondent builder filed a rectification application dated 11.01.2024   under section 39 of the Act for the rectification of jimny order dated 04.07.2023 and modification of order dated 31.10.2023. The counsel for the complainant has supplied a copy of reply to the application filed by the respondent for rectification of the proceedings dated 4.7.2023 and 31.10.2023.  Copy of reply supplied to the counsel for the respondent and also placed on record. Matter to come up on 09.04.2024 for further proceedings.

The present complaint was received on 10.08.2022 and reply on behalf of respondent was filed on 17.01.2023. During the last proceedings dated 4.7.2023, it was recorded that “ in order dated 5.5.2023 of DCDRC, Gurugram in CC No.732 of 2021 has also been produced before the authority which also mentions the present unit in dispute. Both the parties to clarify the same in the written submissions”. The counsel for the complainant states that the order of the Hon’ble DCDRC, Gurugram pertains to units of the complainant in another project, namely “Capital Residency” and not to the project for which the present complaint has been filed and this case has nothing to do with that DCDRC case which is CC No.732 of 2021. The counsel for the respondent has not filed written submissions till date as per the directions of the authority vide its orders dated 4.7.2023 he is hereby given and last opportunity to file the amended reply with respect to the calculation of the refundable amount within a period of two weeks alongwith a cost of Rs. 10000/- to be paid to the complainant. Till date no written submission has been filed by the respondent     The respondent has submitted that the complainant requested to restore the unit vide letter dated 12.08.2020. However, the letter dated 12.08.2020 as annexed in the file specifies for reinstatement of unit no. 202 and not the unit in question in the present complaint. However, the respondent in his reply has submitted that as a goodwill gesture, the unit was restored. Thereafter, a cancellation letter dated 06.07.2021 was issued for unit no. 39 i.e., the unit in question in the present complaint. The same letter specifies that since the complainant is regular defaulter who did not pay even after repeated demands and hence, the request cannot be considered. The counsel for the respondent is filing an application for rectification of orders  dated 4.7.2023 and 31.10.2023  after supplying a copy to the counsel for the complainant which he shall file within a period of 15 days. Matter to come up on 09.04.2024 for final arguments.

The present complaint was received on 10.08.2022 and reply on behalf of respondent was filed on 17.01.2023. During the last proceedings dated 4.7.2023, it was recorded that “ in order dated 5.5.2023 of DCDRC, Gurugram in CC No.732 of 2021 has also been produced before the authority which also mentions the present unit in dispute. Both the parties to clarify the same in the written submissions”. The counsel for the complainant states that the order of the Hon’ble DCDRC, Gurugram pertains to units of the complainant in another project, namely “Capital Residency” and not to the project for which the present complaint has been filed and this case has nothing to do with that DCDRC case which is CC No.732 of 2021. The counsel for the respondent has not filed written submissions till date as per the directions of the authority vide its orders dated 4.7.2023 he is hereby given and last opportunity to file the amended reply with respect to the calculation of the refundable amount within a period of two weeks alongwith a cost of Rs. 10000/- to be paid to the complainant. Part arguments heard. Matter to come up on 09.1.2024 for further proceedings.

The present complaint was received on 10.08.2022 and reply on behalf of respondent was filed on 17.01.2023. Succinct facts of the case as per complaint and annexures are as under: S. N. Particulars Details 1. Name of the project “Neo Square”, Sector 109, Gurugram 2. Nature of the project Commercial 3. Project area 3.089 acres 4. DTCP license no. and validity status 102 of 2008 dated 15.05.2008 5. RERA Registered/ not registered 109 of 2017 dated 24.08.2017 valid upto 23.08.2021 plus 6 months of extension due to COVID-19 = 23.02.2022 6. Application for allotment 25.05.2015 (Page 39 of reply) 7. Date of execution of Apartment Buyer’s Agreement 12.09.2015 (Page 40 of reply) 8. Unit no. and area 39, 3rd floor admeasuring 500 sq. ft. (super area) (As per BBA at page 45 of reply) 9. Memorandum of understanding for assured return 12.09.2015 (annexure R/3 of reply) 10. Possession clause Clause 3 of MoU: The company shall complete the construction of the said building/complex, within the said space is located within 36 months from date of execution of this agreement or from the start of construction, whichever is later and apply for grant of completion/occupancy certificate. 11. Due date of possession 12.09.2018 (Calculated as 36 months from the date of execution of agreement i.e., 12.09.2018) 12. Assured return Clause 4 of MoU The Company shall pay a monthly assured return of Rs. 45,000/-(Rupees Forty Five Thousand only on the total amount received with effect from 12.09.2015 after deduction of Tax at Source and service tax, cess "or any other levy which is due and payable by the Allottee(s) to the Company and the balance sale consideration shall be payable by the Allottees) to the Company in accordance with the Payment Schedule annexed as Annexure 1. The monthly assured return shall be paid to the Allottee(s) until the commencement of the first lease on the said unit. This shall be paid from the effective date. 13. Total sale consideration Rs. 26,92,893/- (As per payment plan at annexure-1 of BBA at page 66 of reply) 14. Amount paid by the complainant Rs. 27,04,743/- (As per SoA on page 87 of reply) 15. Amount paid by respondent (AR) Rs. 19,18,500/- (As per SoA on page 87 of reply) 16. Occupation certificate /Completion certificate Not obtained 17. Offer of possession Not offered 18. Surrender of unit Vide letter dated 09.05.2019 (Page 76 of reply) 19. Cancellation letter 06.07.2021 (Page 86 of reply)   The counsel for the complainant states that  the subject unit was allotted to the complainant at a total consideration of Rs. 26,92,893/- against which the complainant deposited a total amount of Rs. 27,04,743/-. An assured return amount of Rs. 19,18,500/-has been paid by the respondent against the unit.  Admittedly, the request for surrender of the unit was made by the complainant on 09.05.2019 and simultaneously a MoU for buy back of the unit was also signed between the parties on the same date  (the counsel for the respondent challenges the MoU and states that no such document was signed).   Subsequently, an amount of Rs.30 Lakhs   was paid by the respondent to the complainant for 7 such units in bulk.   A dispute arose regarding refund of the balance amount and the complainant requested for reinstatement of the unit  which was allegedly accepted by the respondent but the respondent later cancelled the unit on the ground of non-payment of dues.  The counsel for the complainant categorically states that no demand for payment of dues was made before calculation. The counsel for the respondent states that no MoU for buy back was signed between the parties  and it is  a simple case of surrender.  The amount deposited by the complainant was refunded after deduction of assured return already paid by the respondent. The counsel for the respondent further states that they wish to file an amended reply w.r.t  the calculations of refundable amount in detail.  An order dated 05.05.2023 of the DCDRC  Gurugram in CC No.732 of 2021  has also been produced before the authority which also mentions the present units in dispute.  Both the parties to clarify the same in the written submissions. Parties may file written submissions within  a period of 3 weeks with an advance copy to each other. Matter to come up on 31.10.2023 for final arguments.

The counsel for the respondent seeks a short adjournment as the main counsel is unwell.          Counsel for the complainant has no objection provided the interim order regarding non creation of third party rights may continue till next date of hearing.           Matter be put up before the full bench on 04.07.2023 for further proceedings.

Matter be put up before the full bench for arguments on 22.03.2023.

The present complaint was filed on 10.08.2022 and registered as complaint No.4946 of 2022. As per the registry, complainant has sent copy of complaint along with annexures through speed post as well as through email and proof regarding having the delivery of the complaint along with annexures made to the respondent has been submitted by the complainant as available in the file.  The registry of the authority sent a notice with a copy of the complaint along with annexures through speed post of which delivery confirmed on 03.09.2022 and 05.09.2022 as per the tracking report of the speed post available in the file.  Registry has also sent the notice along with a copy of the complaint through email at following email address: [email protected] The same is shown to have been delivered on the above email address as per the report available in the file.  It is proper service of the notice.               Written reply not filed by the respondent till date. The counsel for the respondent seeks a short adjournment to file the reply.  The respondent is directed to file reply within three weeks i.e. by 18.10.2022 in the registry with an advance copy to the complainant. Last opportunity is being granted. In case reply is not filed within the time allowed, the defense of the respondent may be struck off. The counsel for the complainant prays for an interim relief to the extent that no third party rights will be created with respect to the unit till the next date of hearing, for which the complaint has been filed. The counsel for the respondent assured that no third party right shall be created till next date of hearing.              Matter to come up on 24.01.2023 for further proceedings.