CLARION PROPERTIES LTD vs EXPERION DEVELOPERS PVT. LTD. & OTHERS

Matter to come up on 22.07.2025 for final arguments.

Due to lack of quorum,  the matter is adjourned to 15.04.2025 for the purpose as already fixed.

The present complaint has been filed on 02.05.2022 and reply on behalf of respondent no. 1 and 2 was received on 24.05.2024 and 14.06.2024 respectively. Thereafter, the respondent no. 1 has filed an application for deletion of its name as no privity of contract between the complainant and respondent No 1. The respondent no. 1 is not a party to the agreement to sell dated 05.05.2017, entered between the complainant and respondent no. 2. Therefore, only the respondent no. 2&3, should have been made party rather than initiating proceedings against respondent no. 1 without any cause of action arising against respondent no. 1. Further, all the averments made by the complainant in its complaint have been against the respondent no. 2&3 only and there is no averment made against the respondent no. 1. The complainant has filed the reply to the said application stated that agreement to sell dated 05.05.2017, executed between the complainant and the respondent no. 2&3, the said project land is “Free from charges, lien or encumbrances and has a clear and marketable title”. Further, vide registration bearing no. 329 of 2017 of the project has been granted in favour of respondent no. 1 and all the respondents are jointly and severally liable. The counsel for the   complainant states that so far as the application for deletion of respondent No.1 from the array of parties is concerned, the respondent No.1 has been made as proforma party and no specific relief is being sought against the respondent No.1.  However, it is a necessary party as the project in which the unit in question is situated, is registered in the name of respondent No.1 which is the developer of the project. The counsel for R1 applicant states that he has no  concern with the matter and is not privity to the agreement between the complainant and rest of the respondents and therefore, no cause of action arises against R1.  The counsel for R1 clarifies that registration of the project was obtained from interim RERA Panchkula and was limited to the extent of the units in their allocation and the said facts are objected by the counsel for the complainant. Heard. The authority considers R1 to be a necessary party as the project stands registered in the name of respondent No.1. The respondent no. 2 filed an application dated 14.06.2024 for set aside the order dated 08.12.2023, along with demand drafts for the cost imposed by the Authority for non-filing of reply. The same is being allowed, in the interest of natural justice and the reply already filed is taken on record. Further, the respondent no. 2 is directed to file the fresh DD within a period of one month. Since previous DD has expired and were return back to respondent no. 2. The counsel for the complainant wishes to file rejoinder to both the reply which may filed within a period of 2 weeks with an advance copy to the respondents. Matter to come up on 04.02.2025 for further proceedings.

On the last date of hearing it was observed that the respondent no. 1 has filed an application for deletion of its name from the array of parties. The complainant has filed a reply to the said application and stated that all the respondents are jointly and severally liable.  It was directed to come up for arguments on deletion application filed by respondent. The counsel for the complainant states that they are filing objections to the application regarding the reply  filed by the respondent no.2 and they state that  reply of respondent no.2 should not be taken on record and should not be considered as their defence had already been struck off on 8.12.2023. Proxy counsel for the respondent no.2 is seeking adjournment as the main arguing counsel is not available today due to ill-health. Counsel for the respondent no.1 states that although they have filed reply to the complaint as  per directions of the authority but still they are pressing on their previous application for deletion of their names as they are not party to the main agreement for sale which happened between the complainant and respondent no.2 and 3. Reply of respondent no.1 must be considered when  finalizing the order. The counsel for the complainant states that they had file the reply to the deletion application moved by the respondent no.1 stating that respondent  no.1 is a promoter as per RERA registration. However, counsel for the respondent no.1 states that although respondent no.1 is part of the entire colony but not part of particular project for which the complaint has been filed. The counsel for  the respondent no.1 further states that they have already filed the reply and the reply of respondent no.2 is also on the file and reply of respondent no.3 is yet to be filed as the matter w.r.t. all the respondents has to be taken together, the matter may be transferred before the full bench on 29.10.2024. Further the counsel for the complainant is directed to supply a copy of the reply to the application of respondent no.1 and respondent no.2.  However, the counsel for the complainant states that they have already supplied a soft copy of the reply and shall handover  hard copy today itself. Since on the direction of the authority,  respondent no.1 has already submitted the reply and has filed an application for waiver of cost. Hence in the interest of natural justice, cost is being waived off. Matter be put up before the full bench on 29.10.2024.

Matter is adjourned to 09.08.2024 for the purpose as already fixed.

None appeared on behalf of the respondent nor written reply has been filed till date. Counsel for the complainant states that they had booked the commercial unit way back in 2017. BBA was duly executed on 5.5.2017 although the same is not registered and the promoters have taken 100% payment of the unit . Counsel for the respondent no.1 has moved an application for deletion of name of the respondent no.1 from the complaint and the counsel for  the complainant has filed the reply to the said application, However, the same is not available in the registry of the authority and counsel for the complainant has handed over one copy of the same during proceedings which is taken on record. None from the respondent no.1 is present  and has not even fled the reply to  the main complaint inspite of repeated opportunities.   Counsel for the complainant further stated that as per the latest decision of the Hon’ble Bombay High Court in case of Wadhwa Group Housing Project VS Vijay Choksi and other in case no.2nd appeal no.21842/2023 dated 16.2.2024 in which it is held that all the promoters are jointly and severally liable.     The respondent No. 1 is directed to file reply within two weeks with an advance copy to the complainant along with cost of Rs.10,000/- to be paid to the complainant failing which defence of the respondent shall be struck off. Matter to come up on 31.5.2024  for further proceedings and  final arguments on deletion application filed by the respondent no.1 otherwise the authority shall be bound to proceed ex-parte.

Matter is adjourned to 15.03.2024.

On the last date of hearing, the proxy counsel for the complainant stated that he was not aware of full facts of complaint and needs sometime for the main counsel to appear and argue the matter. During the course of hearing, AR  for the respondent No. 1 states that an application is being filed for deletion of the name of the respondent No.1 on the ground that no agreement  between the parties has been executed  and no transaction has been made by the complainant to the Respndent No.1. Respondent no.1 is  directed to file the application  in the registry of the authority after supplying a copy to the counsel for the complainant within a period of 15 days who shall file response of the application in the authority within further 7days. However,  none appeared on behalf of the respondent no.2 and 3 and no written reply has been filed till date. The respondent No.2 and 3   is directed to put in appearance on the next date of hearing and  file reply in the registry of the Authority within two weeks i.e., by 22.09.2023, with an advance copy to the complainant with a cost of Rs. 5000/- to be paid to the complainant. In case reply is not filed within the time allowed, the defence of the respondent shall be  struck of.          Matter to come up on 8.12.2023  for further proceedings.

The proxy counsel for the complainant states that he is not aware regarding full facts and needs sometime for the main counsel to appear and argue the matter. Matter to come up on 08.09.2023 for further proceedings.

Proceedings were adjourned due to administrative reasons.  Therefore,  no hearings. Adjourned to 21.04.2023 for the purpose as already fixed.

The present complaint was filed on 04.05.2022and registered as complaint No. 1849 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 and the same was delivered on 28.05.2022.  Registry has also sent the notice along with a copy of the complaint through email at following email address: [email protected] [email protected] [email protected] and the same has been delivered Written reply has not been filed by the respondent. The counsel for the respondent requests for an adjournment for filing of the reply.  The respondent is directed to file reply within two weeks from the date of hearing in the registry with a 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 struck off.                    The matter to come up on  22.12.2022 for further proceedings.

The District Bar Association Gurugram vide resolution No.448 dated 22.07.2022 has requested for suspension of work in District Courts Gurugram today i.e. 22.07.2022 due to untimely and sad demise of Shri Rajesh Khatri Advocate son of Shri Hazari Lal Advocate. In view of the above, the hearings are  adjourned. Reply not filed by the respondents till date. They are directed to file the reply within two weeks i.e. by 05.08.2022 in the registry with a copy to the complainant. In case reply is not filed within the time allowed, the defence of the respondent may struck off.                              Matter to come up on 07.09.2022 for further proceedings.