ADAR KR JAIN AND NITIN JAIN vs SPLENDOR BUILDWELL PVT. LTD

Due to lack of quorum, the matter is adjourned to 01.04.2025 for the purpose as already fixed.

Shri Sanjeev Sharma  new counsel has appeared on behalf of the complainant (s) and filed power of attorney today in all the cases at serial No.18 to 44 and requests an adjournment to argue the matter. Request is allowed. The counsel for the respondent wishes to file an application for vacation of stay granted on 14.07.2023.  She is directed to file the same in the registry of the authority within 15 days with an advance copy to the complainant.  The counsel for the complainants is directed to file reply within next 15 days with an advance copy to the respondent. Shri Somesh Malhotra Advocate on behalf of third party i.e. Makkar Buildcon. Pvt. Ltd. states that  they are not yet impleaded as a party and in case called upon,  it shall voluntarily participate before the Authority and respond to query.  The complainant may file an application of impleadment M/s  Makkar Buildcon. Pvt. Ltd. if necessitated. Matter to come up on 25.02.2025 for further proceedings.

Due to lack of Coram,  the matter is adjourned to 10.12.2024  for the purpose as already fixed.

The counsel for the respondent has produced a copy of order dated 13.08.2024 passed by the Appellate Tribunal in case titled as Makkar Buildcon Pvt. Ltd Versus RERA Gurugram matters  in CM No. 262, 263, 264 and 224 in Appeal No.140/2024 vide which it is observed that : “Interim direction issued on 22.03.2024 has not been vacated, thus, would continue. At this stage,  Mr. Manish Jain, Advocate has pointed out that certain other matters involving similar controversy are pendihng before Single Member of the Authority for 16.08.2024.  He prays that same also need to be adjourned beyond the next date of hearing and he may be granted liberty to make a mention in this regard before the Chairman HRERA, Gurugram. Liberty as prayed for is granted and the next date is listed on 06.09.2024”.   In view of the above,  the matter be put up before the full bench on 15.10.2024  for further proceedings.

The counsel for the respondent states that settlement talks are going on between the parties and is in progress and request for a short adjournment. Request is allowed. It shall be the last opportunity. Matter to come up on 16.8.2024 for further proceedings.

The counsel appearing on behalf of third party  in CR Nos 1568, 1567, 1586, 1587, 1631, 1632, 1670, 1671, 1656, 1657, 1712, 2098 2133 of 2023 stated at bar that  they have filed an appeal before the Hon’ble Appellate Tribunal  and requests for a date as the matter is subjudise before Appellate Tribunal and  next date of hearing is 11.07.2024, hence it should be adjourned post that date. Further the counsel for the respondent requests that rest of the matters of same respondent be also kept for 12.07.2024.   Matter to come up on  12.07.2024 for further proceedings.

The present complaint was filed on 03.05.2023 and the reply on behalf of respondent was received on 28.08.2023. On the last date of hearing, it  was brought into the  knowledge of the Authority that an interim order dated 22.3.2024 has been passed by the Hon’ble Tribunal in Appeal No.140 of 2024. The relevant portion of which is re-produced as under :-        “Issue notice to the respondents for 29.4.2024 through post, e-mail and dasti as well. The Authority would adjourn the proceedings beyond the next date fixed before this Tribunal”. Today a copy of order dated 29.4.2024 passed by the Hon’ble Appellate Tribunal in CM Nos.262,263 and 264 of 2023 in Appeal No.140 of 2024 titled as Makkar Buildcon Pvt. Ltd. V/s HARERA,Gurugram and others  has been placed on record vide which it is ordered that “interim order to continue till the next date of hearing. List on 27.5.2024. Since the matter is under adjudication before the Appellate Tribunal, it   is being adjourned to 31.05.2024 for further proceedings.

The present complaint was filed on 03.05.2023 and the reply on behalf of respondent was received on 28.08.2023. The counsel for the complainant states that the respondent is trying to prolong the matter unnecessarily whereas the counsel appearing on behalf of third party i.e. Makkar Buildcon. Pvt.  Ltd (in whose favour the rights of the property/unit No.501, 502, 517 to  527 were transferred on 06.01.2023  through unregistered BBA after cancellation of the unit of the original allottee on 22.12.2022)  states that the matter was listed for yesterday before the Hon’ble  Appellate Tribunal,  but the same was adjourned  on the request of the counsel for third party i.e. Makkar Buildcon. Pvt.  Ltd., who prayed for some time to prepare the case and address the arguments and the same is listed for  hearing before the Hon’ble Appellate Tribunal today i.e. 22.03.2024.   The counsel for the third party i.e. Makkar Buildcon. Pvt.  Ltd. has stated that  they shall be filing the latest update/outcome of the appeal with Hon’ble Tribunal, at the earliest possible and certainly before the next date of hearing.  However,  it is observed that third party (Makkar Buildcon. Pvt. Ltd.)  has filed short objection  on 15,03.2024 which is dated 16.02.2024 and affidavit enclosed is also 16.02.2024. As regards,  penalty under section 61 of the Act on respondent No.1, it was conveyed on 16.02.2024 that authority shall conclude the penalty proceedings on next date but respondent No.1 did not file any reply to show notice u/s 61 of the Act. However,  it is observed that on 15.03.2024,  respondent No.1 filed certain documents for placing on record and as per para No.3 page 11 of said covering letter,  respondent has agreed having received 18.2% of sale consideration which is more than 10% of sale consideration, even if be so,  still there is a violation of section 13 of the Act (as no BBA stands registered) is liable to be penalized.  Further no BBA stands registered in favour of third parties  from whom also more than 10% of total sale consideration received to whom units were transferred allotted after cancellation of unit of original allottee,  which again leads to/establishes violation of section 13 of the Act and hence liable for penalty u/s 61 of the Act. However,  the counsel for the respondent no.1 also requested to take cognizance of appeal filed by third party M/s Makkar Buildcon Pvt. Ltd and have requested for short adjournment.  Before the above proceedings could be uploaded, it came into knowledge of the Authority that an interim order dated 22.3.2024 has been passed by the Hon’ble Tribunal in Appeal No.140 of 2024. The relevant portion of which is re-produced as under :-        “Issue notice to the respondents for 29.4.2024 through post, e-mail and dasti as well. The Authority would adjourn the proceedings beyond the next date fixed before this Tribunal. “ Matter finally stands adjourned to 03.05.2024.

The  present complaint was filed on 03.05.2023 and the reply on behalf of respondent was received on 28.08.2023. Matter  is being adjourned on the request of both the counsels with the  direction that on the next date of hearing,  director of the  respondent company as well as director of those companies  or the individuals in whose favour the third party rights have been created by the respondent after cancellation of the   unit of the complainants and the complainants-allottees in question in the present case must appear personally and submit all the relevant pending details/DATA whatever they feel to provide to the authority for the expeditious decision of the complaints.  Authority  is bound to take this view.  As the counsel for the respondent states that they want to amicably settle the matter but the complainant does not come forward even after fixing time for settlement talks and on the other hand, the counsel for the complainant states that the respondent does not honour the commitment and does not come forward to settle the matter on the committed date. Hence if both reach an amicable settlement, must file settlement deed.  It shall be the last opportunity to argue the matter finally and no further adjournment on the request of any party shall be granted  and the matter shall be decided finally and  penalty proceedings under section 61 of the Act already initiated against the respondent for violation of provision of section 13 of the Act shall also be concluded.  Till then the interim order w.r.t status quo shall continue. Matter to come up on 22.03.2024 for further proceedings.

The  present complaint was filed on 03.05.2023 and the reply on behalf of respondent was received on 28.08.2023. On the last date of hearing,  the counsel for party  in whose favour third party rights have been created, was asking for adjournment to file the reply and he was given 2 weeks time from the date of receipt of copy of complaint, to file the reply but the authority observes that the counsel for the said party i.e. Makkar buildcon. Pvt. Ltd. has not yet filed the reply.  Hence the authority hereby directs the registry to issue a show cause notice to M/s Makkar buildcon. Pvt. Ltd.  as to why penal action should not be initiated against them for not complying with the directions of the Authority. They must file the reply within  one week to this effect. Since the persons/alleged allottees to whom the unit has been allotted after cancellation of the unit of the complainant – allottee,  are not coming forward  to submit the details asked for by the authority,  the respondents are hereby directed to file the complete details as was directed to be filed by those third party/allottees (who became allottees after cancellation of the unit)  within a period of 3 weeks as per the directions given in the order dated 10.11.2023. As regards the violation of provisions of section 13 by the respondent, the counsel for the respondent has filed the reply on 28.08.2023  which states that   the complainant (s)  had approached for units on 5th floor and 6th floor and later-on,   the same were merged  in one unit whereas the authority while observing the agreement for sale and MoU which is Annexure 3 at page 32,  it is clear that the complainant is a joint allottee and  the total consideration of the unit under consideration is Rs.10,98,48,000/- against which  the respondent took a sum of Rs. 5,49,24,000/- vide 36 cheques.  However,  against those 36 cheques,  cheques of Rs 2 Crores were got encashed by the respondent which again is more than 10% and is violation of Section 13 of the Act,  2016  and further when the units allotted to the original allottees/complainant in  this case were terminated on 22.12.2022  and reallotted to third parties on 27.12.2022  and again the full consideration for the said units and that too without the execution/registration of the BBA  as required under section 13 of the Act, 2016.  The authority further directs the respondent that since it is a RERA  registered project,  the copy of QPRs for the relevant quarters filed with the authority should be placed on record before the next date of hearing and a show cause notice be sent to the respondent as to why a penalty u/s 61 of the Act 2016  should not be imposed for violation of Section 13 of the Act by the respondent.                  Matter to come up on 16.02.2024 for further proceedings.

The counsel for the complainant states that as per directions of the authority vide order dated 10.11.2023  the respondent had to file evidences w.r.t. third party rights  but they have not yet filed the evidences. The counsel for the respondent No.1 submits that they are trying for settling the matter amicably and requests for short adjournment of one week to allow her to submit application for mediation so that the matter can be referred to Adjudicating Officer for mediation. Counsel for the complainant did not raise any objection to the same.  Request is allowed. She may submit the application for mediation alongwith the relevant fee within one week  so that mater can be referred to mediation. The counsel for Makkar Buildcon Pvt. Ltd. in whose favour third party rights were created by the respondent for some units which are at serial No.48, 60 to 70 and 72  has put in appearance  and filed power of attorney on behalf of items mentioned as above and requests for a short adjournment to file details/ reply w.r.t queries raised by the authority. The counsel for Makkar Buildcon Pvt. Ltd requests for a copy of the complaint alongwith documents and he is directed to receive the certified copy of complaint from the registry of the authority  and to file the reply within 2 weeks from the receipt of copy of complaint from the authority failing which authority shall be bound to take penal action.    Matter to come up on 12.01.2024   for further proceedings.

Shri Gaurav Rawat Advocate has appeared on behalf of the complainant (s) and filed memo of appearance today and shall be filing the regular power of attorney on or before the next date of hearing.  However,  he has moved  an application w.r.t  examination of the documents filed by the respondent with respect to creation of third party rights and authenticity of agreement for sale with third party after cancellation of the units, as has been annexed by the respondent.   The counsel for the respondent states at bar that the complainant (s) had to file reply against the application for vacation of stay within a period of four days as per the proceedings of the authority dated 29.09.2023 which was duly alleged to have been filed by the complainant and copy of the same has been received by the respondent as well. However, the copy of the same is not received in the registry of the authority and the same has been handed over by the counsel for the respondent just now during the proceedings for the record of registry of the authority and  further stated that since the reply had already been filed on 03.10.2023, the matter is ripped for arguments and the complainant is avoiding to argue on the one pretext or the other.  However, the counsel for the complainant states that since he has been recently engaged and he has yet to go through the details of the case, hence need sometime and further stated that he wishes to implead the parties in whose favour 3rd party rights were created by the respondent. After hearing the arguments of both the parties,  the authority is of the view that as per Order 1 Rule 10 of CPC 1908,  the authority needs to examine and take statement  of the third parties alleged as per affidavit filed by the respondent to whom these units have been reported to have been sold and with whom the BBA/agreement to sell has been executed way back on 27.12.2022 that too just after 4 days of cancelation of previous allotment  and from the copies of agreements filed by the respondent, it has been transpired that those agreements are not registered with the registration authority (Tehsildar office)  which is mandated as per Section 13 of the Act, 2016 which clearly states that if the respondent takes more than 10% of the total sale consideration, the agreements/BBAs must be executed and got registered and in this case,   it is mentioned by the respondent themselves that they have received 100% consideration but still the BBA/agreements are not registered as per provisions of section 13 of the Act,  2016. Hence,  authority is of the view that notice be sent by the registry of the authority to those third parties to put in appearance and to clarify regarding their dealing with the promoter-company/respondent and those third parties must file the proof of making the payments  and the proof of having deducted TDS  which is mandatory as per provisions of Income Tax Act 1961.  They must file the form 26-QB in support of their transaction with the respondent-promoter and to justify their transaction within a period of three weeks time as requested by the counsel for the respondent is allowed. Interim order w.r.t status quo of the units in question shall continue. Matter to come up on 08.12.2023  for further proceedings.

The counsel for the complainant has filed an application for adjournment on account of his illness. However,  the counsel for the respondent states that only the issue of status quo may be taken up on priority and the shortest possible date be given for the same. In the light of these facts, the matter is adjourned to 10.11.2023 for further proceedings.

The matter was called for hearing prior to lunch as being bunch matter but at that time main arguing counsel for the complainant was not available for arguing the matter and had kept the matter for hearing post lunch on the request of the proxy counsel of the complainant.. Now it is already 5-00 PM and both the counsels of the parties state that  they need about one hour time  to argue the matter hence due to paucity of time, it is being adjourned. Matter to come up on 27.10.2023 for further proceedings.

The present complaint has been filed on 03.05.2023 and reply on behalf of respondent was received on 28.08.2023. Succinct facts of the case as are as under: S.No Particulars Details 1.        Name of the project “Splendor Spectrum One”, Sector-58, Gurgaon 2.         Nature of the project Commercial Space 3.        RERA registered/not registered Registered vide registration no. 376 of 2017 dated 07.12.2017 Validity status 31.12.2018 4.        DTPC License no. 82 of 2010 dated 12.10.2010 Validity status 29.05.2020 Licensed area 6.775 acres Name of licensee M/s Ishoyu Builders and Developers Pvt Ltd 5.        Date of MOU 07.03.2020 [page no. 32 of complaint] For unit 501-527 (27units) 6.        Agreement for sale 19.08.2020 [page no. 60 of complaint] For unit 601-627 (27units) 7.        Unit No. as per allotment letter 501-527 (27 units), 5th floor, South Tower B [page no. 33 of complaint] 8.        Unit No. as per agreement 601-627 (27units), 6th floor, South Tower B [page no. 61 of complaint] 9.        Area admeasuring 23,880 sq. ft. (super area) [page no. 61 of complaint] 10.   Possession clause Not mentioned 11.   Assured return clause 3.Developer has assured the Allottee that the building shall be leased within 6 months from the date of execution oof this MOU. In case the building is not leased in stipulated time, then the Developer will pay Rs. 65/- per sq. ft. per month as an assured return to the Allotee from 14th September 2020 till the said unit is leased out to the prospective Lessee(s) and rent commencement date whichever is later. 12.   Due date of possession Cannot be ascertained 13.   Total sale consideration Rs. 10,98,48,000/- (as per agreement to sell on page no. 63 of complaint) 14.   Total amount paid by the complainant   15.   Cancellation of unit no. 503, 504, 505, 506, 507, 508, 509, 510, 511, 512 and 515 and 516 22.12.2022 (page no. 37 of reply) 16.   Creation of third-party rights/ Agreement to sell with third party 27.12.2022 (page no. 21 of reply) 17.   Occupation certificate -- 18.   Offer of possession -- As The counsel for the respondent states that the respondent has moved an application alongwith reply for vacation of stay order passed by the authority on 14.07.2023, copy of the same has been served upon the complainant on 28.08.2023. The counsel for the complainant requests for filing of reply to the application for vacation of stay order. Request is allowed. The counsel for the complainant is directed to file the reply within  4 days with an advance copy to the respondent and the counsel for the respondent  is also directed to submit an affidavit regarding the creation of third party rights which is stated to have been created prior to filing of the complaint in this case within 4 days and the matter for vacation of stay is listed for 06.10.2023.

As per the registry, complainants have sent copy of complaint along with annexures through speed post as well as through email and the same is shown to be “Delivered” on 09.05.2023 and 11.05.2023 respectively. Notice has been sent by the registry of the authority.         The complainants have made an interim application under section 36 of the Act of 2016, to seek following reliefs:- that an appropriate ex- parte interim order may kindly be passed in favour of applicants/complainants and against the respondent, restraining the respondent, its officials, associates, maintenance agency, administrators etc. from transferring/alienating/allotting the units, + on Fifth Floor of South Tower-B. in the project Splendor Spectrum One, Sector 58, Gurugram to any third party and/or creating any third party charge upon the same in any manner till decision of the complaint in the interest of justice, equity and fair play..  The complainants and the respondent entered into an MoU dated 14.03.2020 and purchased the entire 5th floor in the subject project total admeasuring 23,880 sq.ft. consisting of 27 units for a total consideration of Rs. 10,98,48,000/-.  The respondent allotted units no. 501, 502, 503, 504, 505, 506, 507, 508, 509, 510, 511, 512, 512A, 514, 515, 516, 517, 518, 519, 520, 521, 522, 523, 524, 525, 526, 527 as per the respective area mentioned in the MoU dated 14.03.2020. The respondent builder further assured the complainants that the building shall be leased within 6 months from the date of execution of MoU. In case the building is not leased out within stipulated time then the respondent will pay of Rs. 65/- per sq.ft. per month  as assured return to the complainants from 14.09.2020 till the units are leased out to the prospective lessees and the rent commencement date whichever is later. It is pertinent to mention here that till date no buyer’s agreement has been executed between the parties. The respondent instead of coming forward to execute and get registered the agreement of sale regarding all units  in question as agreed to be originally  offered the same area in 27 units on 6th floor against the same sale consideration. It is pertinent to mention here that the said offer of 6th floor given by the respondent was never acceptable to the complainants and never accepted by complainants as the respondent very cleverly had deleted the clause of assured return of Rs. 65/- per sq. ft. The complainants recently came to know that the respondent builder is trying to alienate the units and to transfer the possession of the same illegally to someone else. The counsel for the complainant states that there was a single allotment and single agreement for all the 27 units and a consolidated consideration and payments, as per annexure 3, page 32 of the complaint. Allottee had made a payment o f Rs.5,49,24,000/- out of which a cheque of Rs.2 Crores had been encahsed and as per the agreement balance amount was payable at the time of execution  of lease deed. The counsel for the respondent states that MoU was executed  on 07.03.2020   for 27 units on 5th floor in Tower-B of Splender Spectrum One Sector-58 Gurugram  wherein reference of certain cheques was given at page 33 and 34 of the MoU which in total amounts to Rs.5,49,24,000/- and as per  the statement of counsel for the respondent,  she states that they had got only two cheques of Rs.2 Crores which they got encashed  and no BBA was executed to this effect.  Whereas complainants  state that all cheques were delivered to respondent while signing MoU but respondent is intentionally avoiding to get other cheques encashed. The authority is of the view as to why the respondent took advance more than 10% of the total sale consideration n of the units as per MoU without executing the BBA,  which is a clear cut violation of section 13 of the Act,  2016 for which a show cause notice should be issued under section 61 of the Act, 2016 as to why penalty should not be imposed for violation of section 61 of the Act. Further the authority has noticed agreement  which has been filed by the complainant alongwith complaint wherein the stamp paper is dated 09.04.2019 and the execution date is shown as 19.08.2020  and this agreement has not been signed by the complainant and neither there is any witness nor there is attestation by the oath commissioner or  notary public. The matter needs to be examined.  The respondent is directed to file reply in this regard within a period of 2 weeks as to clarify these discrepancies in agreement. Counsel for the respondent stated that third party rights are already created. In the light of above said facts, the respondent is hereby directed to maintain status quo of the units in question. Matter be put up on 29.09.2023 the date already fixed in this case.