Proceedings
1.
In view of provisions of section
25 read with section 32(g) of the Real Estate (Regulation and Development) Act,
2016. wherein the Authority is empowered to facilitate the growth and
promotions of a healthy, transparent, efficient and competitive real estate
sector, it is necessary to take measures to facilitate amicable conciliation of
dispute between the promoters and the allottees. A representation from Spaze
Towers Private Limited for
settlement has been received and a large
number of its cases are pending before the Authority. In order to save time and
money, it appears to the Authority that there exist elements of settlement of
dispute which may be acceptable to the parties, The Authority hereby orders mediation
under section 89 Code of Civil Procedure, 1908 in cases as given in annexure A
through this referral order. The details of reference are as under: -
1.
Name
of the referral forum
The
Haryana Real Estate Regulatory Authority, Gurugram
2.
Complaint
No.
Complaint
No.4728/2020
(Available
on website i.e. www.haryanarera.gov.in)
3.
Name
of the Parties
Chanderkanta
Nandwani versus Spaze Towers Private
Limited
4.
Date
and year of institution of cases
Same
5.
Stage
of proceedings
Reply
received in some matters and replies are pending in some matters
6.
Nature
of dispute
Dispute
between developer/builder (promoter) and customers (allottees)
7.
The
statutory provision under which the reference is made
Section
89 of The Code of Civil Procedure, 1908
8.
Next
date of hearing before the Authority
20.04.2021
9.
Whether
the parties have consented for mediation
Specific
consent was not taken and also no objections have not been received
10.
Name
of the institution/mediator
Sh.
S.C. Goel, (Retd.) District and Session Judge and Adjudicating Officer,
HARERA, Gurugram and Smt. Deepa Malik, Chief Public Grievances Officer and
Chief Public Relation Officer, HARERA, Gurugram
and
Smt.
Geeta Rathi, Legal Officer, HARERA, Gurugram
One
representative from promoters association (NARDECO/CREDAI) and one
representative from Association of Allottees, if nominated by the respective
president.
11.
To
whom the case is referred for mediation
As
detailed above
12.
The
date and time for the parties to report before the institution/ mediator
24.03.2021
at 2.00 PM
(Available
on website i.e. www.haryanarera.gov.in)
13.
The
time limit for completion the mediation
Before
20.04.2021
14.
Quantum
of fee/ remuneration if payable
A
Demand draft of Rs.5,000/-has been received from the promoter
15.
Contact
address and telephone numbers of the parties and their Advocates
As
per record
2.
In
terms of Section 89 of The Code of Civil Procedure, 1908 and the Judicial
pronouncements, consent of the parties is not mandatory for referring a case
for Mediation. The absence of consent for reference does not effect the
voluntary nature of the mediation process as the parties still
retain the freedom to agree or not to agree for settlement during mediation.
3.
In order to prevent any misuse of
the provision for mediation by causing delay in the proceedings/disposal of the
case, the Authority while referring the matters for mediation, has decided to
post the case for further proceedings on 20.04.2021 and hereby grant
time to complete the mediation process
within this reasonable time.
4.
As held by the Supreme Court of
India in Afcons Infrastructure Ltd. and Anr. V. Cherian Varkey Construction
Co. Pvt. Ltd. and Ors. (2010) 8 Supreme Court Cases 24, having regard to
their nature.
“All suits and cases of civil
nature in particular the following categories of cases (whether pending in
civil courts or other special tribunals/ forums) are normally suitable for ADR
processes:
(i)
All cases relating to trade,
commerce and contracts, including
-
Disputes arising out of contracts
(including all money suits);
-
Disputes relating to specific
performance;
-
Disputes between suppliers and
customers;
-
Disputes between bankers and
customers;
-
Disputes between developers/
builders and customers;
-
Disputes between landlords and
tenants/ licensors and licensees;
-
Disputes between insurer and
insured.
____________________________
____________________________
____________________________”
5.
The parties were motivated to
resolve their disputes through mediation. Even if the parties are not inclined
to agree for mediation, the Authority has tried to ascertain the reason for
such disinclination in order to persuade and motivate them for mediation. The
Authority explained the concept and process of mediation and its advantages and
how settlement to mediation can satisfy underlying interest of the parties.
6.
The Authority hereby orders that
the mediation reports be placed before the Authority for passing consequential
orders. The parties are directed to remain present personally or through their
authorized representative in the proceedings before the Authority.
7.
If there is no settlement between
the parties, the proceedings before the Authority shall continue in accordance
with law. In order to ensure that the confidentiality of the mediation process
is not breached, the Authority shall neither ask for the reasons for failure of
the parties to arrive at a settlement, nor should the Authority allow the
parties or their counsel to disclose such reasons to the Authority. However, it
is open to the Authority to explore the possibility of a settlement between the
parties. To protect confidentiality of the mediation process, there should not
be any communication between the Authority and the mediator regarding the
mediation during or after the process of mediation.
8.
If the dispute has been settled
in mediation, the Authority will examine whether the agreement between the
parties is lawful and enforceable. If the agreement is found to be unlawful or
unenforceable, it shall be brought to the notice of the parties and the
Authority will desist from acting upon such agreement. If the agreement is
found to be lawful and enforceable, the Authority will act upon the terms and
conditions of the agreement and pass consequential orders. To overcome any
technical or procedural difficulty in implementing the settlement between the
parties, it is open to the Authority to modify or amend the terms of settlement
with the consent of the parties.
If the
settlement is not effected between the parties,
the matter shall be heard on merits on 20.04.2021.