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Judgment
R.K. Agrawal, President Member;
The present Execution Applications has been filed by Ansal Crown Heights Flat Buyer’s Association, Complainant/ Decree Holder against M/s Ansal Crown Infrabuild India Pvt Ltd and its Directors (hereinafter referred to as Opposite Parties / Judgment Debtors).
Since the facts and question of law involved in these Execution Applications are similar except for minor variations in the dates and events, these Execution Applications are being disposed of by this common Order. However, for the sake of convenience, facts are taken from Execution Application 195 of 2022 in Consumer Complaint No. 86 of 2018.
Brief facts of the case are that the Complainant is a voluntary Consumer Association registered under the Haryana Registration and Regulation of Societies Act, 2012. That the members of the Complainant Association applied and booked residential Apartments in the Group Housing Project namely, “Ansal Crown Heights” proposed to be developed by Opposite Parties. It was alleged that despite having received 85% to 96% of the total sale consideration of the respective units allotted to the Members of the Complainant Association, the Opposite Party Developer/Judgment Debtor failed to deliver the possession of the Flats within stipulated period. In terms of the Flat Buyer’s Agreement executed between the Parties from 07.03.2010 till 10.06.2013 on various dates, the Possession ought to have been handed over to the Complainant between December, 2013 till June 2016. Being aggrieved by actions/inactions of the Opposite Parties, Allottees through the Complainant Association filed the subject Consumer Complaints before this Commission, alleging deficiency in service and seeking possession of the units complete in all aspects along with delayed compensation and costs and in the alternate, refund of the amount paid along with interest and Compensation. Opposite Parties filed their Written Submissions denying allegations as enlisted in the Complaints. This Commission vide Final Order and Judgment dated 28.02.2022, allowed both the Complaints and directed as under:
“i. Both the Complaints are allowed.
ii. The Opposite Developer shall complete the Project in all respects in terms of Agreement and hand over the possession of allotted Flats/Apartments to the Members of the Association along with necessary documents including occupation certificate.
iii. The Opposite Party Developer shall pay delay compensation in the form of interest @9% p.a. on the amount deposited by the Members of the Complainant Association from the committed date of possession till the actual date of offer of possession.
iv. The Opposite Party Developer shall work out the Compensation till the date of passing of this order, after making adjustment of the outstanding charges payable by the Members of the Complainant Association in terms of the agreement/payment schedule and make the payment of the balance compensation amount, if any, to the Complainants within eight weeks from today. However, if any, balance amount is to be paid by the Members of the Complainant Association as per above calculation, the same shall be paid by them within the same period.
v. The delay compensation from the date of passing of this order till the actual date of offer of possession shall be calculated at the time of final payment after adjusting the outstanding amount, if any, payable by the Members of the Complainant Association in terms of payment Schedule opted by them or in terms of Agreement.
vi. The Opposite Party shall pay ₹25,000/- as the cost of litigation at the time of final calculation to all the Members of the Complainant Association.
OR
vii. If the Members of the Complainant Association are not interested to wait any more for taking possession of the allotted Apartment and they want refund of the their deposited amount, the Opposite Party Developer shall refund the entire deposited amount along with interest @9% .p.a. from the respective date of deposit till payment, within a period of six weeks from today failing which the amount shall carry interest @12% p.a. for the said period. The Allottees shall also be entitled for a sum of ₹25,000/- as costs.
viii The pending Applications, if any, also stand disposed off.”
While seeking Execution of the aforesaid Order, the Members of the Complainant Association had notified the Opposite Parties/Judgment Debtors through letter dated 26.03.2022 enlisting the list of Members/Allottees who sought possession with interest and Members/Allottees who sought refund along with interest. It is averred by the Complainant Association that total amount due to them from the Opposite Parties/Judgment Debtors quantified to ₹23,78,27,528/- and the Opposite Parties/Judgment Debtors have failed to comply with the Order dated 28.02.2022. For recovery of the Decreetal amount, the Complainant Association has filed the present Execution Applications under Sections 71 and 72 of the Act, with following prayer:-
“a. Issue warrants of arrest u/sec 72 of the Consumer Protection Act, 2019, against the accused persons namely Gopal Ansal, Ritu Ansal and Sanjeev Kumar Guleria who are Directors/promoters of the judgment debtors companies for violating order dated 28.02.2022 passed by this Commission.
Sentehce the above mentioned accused persons, namely (Ritu Ansal and Sanjeev Kumar Guleria) to imprisonment for violating the order dated 28.02.2022 passed by this Commisison.
c. Issue warrants of attachment pertaining to immovable properties owned by the accused persons described in para no. 15 of this execution application and conduct auction sale of the and distribute the sale proceeds amongst the decree holders.
d. Issue warrants of attachment pertaining to bank accounts described in para no. 17 of this execution application.
Pass such other order or orders as this Hon'ble Court may deem fit and proper so as to execute the decree and realise the amounts awarded in favour of the decree holders
The list of Members/Allottees who sought refund of the amount alongwith interest and Possession of the Unit alongwith delay compensation is tabulated as under:-
Member Name/Joint Holder
Flat No.
Option Exercised
Amount
(in ₹)
Allottees of EA No. 195 of 2022 in CC No. 86 of 2018
Mr. Sanjeev AProosrsaes&sioMns. Poonam
T1/403
54,78,141
Ms. Anjana &RAefsuhnodk Gupta
T1/703
1,82,24,328
Mr. Sajay ChaPnodsaseks&sioMn rs. Sangeeta Chandak
T1/1501
46,44,240
Mr.Sandeep Kumar Malik Refund
T/1703
1,7779,305
Mr. Neeraj UpPaodshseysasyio&nMs. M.S.Upadhyay
T10/707
15,45,673
Ms. Jyoti BhaPtioassession
T10/1706
22,02,075
Mr. AbhishekPMosasleisksi&onPriyanka
T10/1708
22,43,003
Mr. SurendraPKousmseasrsiMonalik
T2/101
59,26,995
Mr. SunderjitRSeinfugnhd& Mrs. Kirpal Kaur
T2/203
1,88,81,652
M/s Sierra PhPaorasmseascsieountical Limited
T2/503
43,23,310
Mr.Rakesh Kumar Malhotra & Ms.Nirja Malhotra Possession
T2/1701
53,25,780
Mr. Arvind Kumar Singh &Ms. Beena Singh Possession
T3/801
86,54,902
Mr. Rajesh GPuloastsie&ssiMons.AshwinGulati
T3/1202
29,23,170
Mr.Deepak JoPsohsis&esMsios.nMeenakshi Joshi
T3/1803
36,14,143
Ms. Sakshi GPauorsseMssr.ioSnhreya Awasthi
T4/402
34,10,005
Mr. Anurag DPhoaswseasnsi&onMs.Kanchan Dhawan
T4/801
32,92,899
Mr. PrabhdeePpoSsisnegshsio&nMs. Harpreet Minhas
T4/1404
34,88,522
Ms. NirmalaYaadv (Now transferred to Rajeev Yadav (Son) Possession due to Death)
T4/1601
34,09,245
Mr. Manu MaRlheofutrnad
T4/1803
1,18,24,190
Ms. BhawanaPSoisnsgeassli&onMr.Amit Singal
T7/201
36,41,392
Mr. Vishal PaPthoaskse&ssiGonagan Jyoti
T7/303
35,54,145
Ms. Vibha GuPpotsasession
T7/402
37,96,951
Mr. CharambPeeorssSeisnsgihon
T7/1004
37,28,850
Ms.Deepti ChPoowssdehsasriyon& Mr.Amit Gupta
T8/1502
30,70,285
Mr. JagmohanPoGsusepstasio&nMs. Pushpa Gupta
T9/1502
29,37,934
Mr. RajkumarPBoshsaetsisaio&nMs. Sushila Kumari
T9/1504
31,20,343
Mr. Dinesh GPooysasle&ssiMons.Shakuntala Goyal
T9/1602
28,76,155
Mr.Narayanan Muthukrishnan & Ms.Sobhana V Possession aidyanathan
T9/1701
29,84,160
Mrs. Samidha Bhatnagar Refund
T7/1602
1,87,56,409
Mr. Anil MagPgouss&esRsiiotunMaggu
T2/903
54,87,069
Nishi Mago &PLosastesSshio.nNaresh Mago
T3/201
46,54,902
Navinder SingPhosUsepspsaiol n& Inderjeet Uppal
T8/504
7,38,862
Mrs.Rimi ShuRkelfaund
T1/603
1,99,99,635
Ravi Bhatia &PoMssaedshsuiornBhatia
T4/102
35,13,386
Rajesh Punjani, Atul Punjani and Sudesh Kumari Possession
T9/1501
37,32,558
Amit Gupta &PoMssaehsesniodner Kumar & Priti Gupta
T2/501
29,94,019
Satvinder KauRre&funMdandeep Singh
T3/803
1,18,09,552
Arvind KumaProSsashesaslion
T1/303
50,87,155
Mr. Manish Mittal, Ashish Mittal & Priyanka Garg Possession
T3/1103
41,52,188
TOTAL
23,78,27,528
EA No. 194 of 2022 in CC No. 2600 of 2018
Subhash Taneja, Adarsh Taneja & Mr. Amit Agggarwal Possession
T8/1701
30,80,588
Shallendra MPoohsasnession
T7/904
38,95,803
Vaibbav KaulP&osSsehsvseiotanKaul
T3/1602
39,41,929
Mrs. Bhavna PVoesrsmeass&ionMr. Himanshu Khullar
T4/602
25,70,605
Rashmi BagaPi o&ssReassnijoann Mitra
T3/1003
1,30,80,444
Kabir ChoudhRaerfyund
T7/1801
42,05,558
Mehul Dhawan
T7/702
Possession
31,50,903
Mr. Sanjay Sisodia & Arvin Sisodia
T7/1402
Possession
41,42,803
Mr. Anil Khosla & Mrs. Ruby Malik
T2/801
Possession
43,89,061
Sita Ram Malik & Amrit Malik
T3/1002
Possession
39,87,579
Prem Gambir & Lalita Gambhir
T9/1003
Possession
24,38,194
Sanjay Sethi
T3/1502
Possession
39,30,515
Vimkuda Consultants Pvt. Ltd
T4/704
Possession
35,15,052
Himanshu Oswal & Nidhi Oswal
T4/502
Possession
31,23,549
Ritu Dayal & Shanta Dayal
T3/1104
Possession
46,03,735
TOTAL
6,40,56,318
Mr. Rohit Gupta, learned Counsel appearing on behalf of the Judgment Debtors submitted that every endeavor is being made to complete the said Project; that a sum of ₹263.38 crores has been invested into the Project, however all the efforts have gone to vain; that the Opposite Parties had disbursed a sum of ₹10 crores on 28.06.2022 towards completion of the Project under the Special Window for Completion of Construction of Affordable and Mid-Income Housing Projects (SWAMIH) fund issued by Government of India; that the Project was at its peak construction stage in August, 2022; that for Towers 7 to 10 fire NOC has been obtained and Occupation Certificate has been applied for; that labour and manpower has been mobilized to ensure completion of remaining works; contract work has been issued and material has been supplied at site, however, since the bank had withdrawn the SWAMIH fund from the Escrow Account amounting to ₹5 crores, work has been at a halt and thus the Opposite Parties are not in a position to complete the Project; further other reasons have attributed to the delay such as delay of 1286 days in granting renewal of license by DTCP Haryana, delay of 16 months in granting renewal of Environment clearance, outstanding sum of ₹10.5 crores due from defaulting allottees and force majeure event from 01.04.2020 till 30.06.2021 as declared by HRERA due to onset of Covid-19 pandemic. In view of the above submissions, it was prayed that a sympathetic view be taken and Opposite Parties/Judgment Debtors be given opportunity to negotiate with the SWAMIH fund to get the lien on the unsold inventory cleared, in order to sell the inventory and bring back SWAMIH fund and apply for extension of time with RERA and to comply with Orders.
Heard learned Counsel for the Parties and perused the Order dated 28.02.2022 passed in Consumer Complaint No. 86 & 2600 / 2018 “Ansal Crown Heights Flats Buyers Association (Regd.) vs. Ansal Crown Infrabuild India Pvt. Ltd &Ors.”, which is sought to be executed by means of the present Execution Application.
The pleas taken by the Opposite Parties/Judgment Debtors regarding investment of certain amount, deployment of work force, supply of material and the construction of the Project being at its peak in August, 2022, are all related to construction of the Project, which could not be completed and have nothing to do with the present Proceedings. The same were relevant for the purposes of adjudication of the Consumer Complaint and not thereafter. Further, the averments made in the Reply regarding sanction of certain amount under SWAMIH Fund, referred to above; withdrawal of the amount from the Escrow account; non-payment of dues by certain defaulting allottees; and shortage of funds, show that the Project is still not complete, for which, for the reasons recorded in the Order dated 28.02.2022, the Members of the Complainant Association / Decree Holders cannot be made to suffer.
The submission of the Opposite Parties/Judgment Debtors that for Towers No. 7, 8, 9 and 10 they have already obtained Fire NOC and Occupation Certificate has been applied for on 25.05.2022, does not find any force because the Judgment Debtors have failed to offer the Possession of the Apartments even to the Members of the Complainant Association / Decree Holders, who have been allotted Residential Apartments in Tower-7 to 10 even after lapse of considerable time after applying for Occupation Certificate, which means that the Towers 7 to 10 are still incomplete/inhabitable on account of which Occupation Certificate has not been granted by the concerned Authorities; what to talk about the other Allottees / Members of the Complainant Association who have been allotted Apartments in other Towers, i.e., Tower 1 to 6. Further, the plea of the Opposite Parties/Judgment Debtors that there was delay in completion of the Project on account of certain factors attributable to DTCP, Haryana, had already been taken into consideration at the time of disposal of the Consumer Complaints and is therefore not relevant now. As regards the declaration of the Covid period from 01.04.2020 to 30.06.2021 (i.e. 14 months) by the HRERA Authorities, it may be noted that while the Proceeding before the HRERA Authorities are separate Proceedings and have nothing to do with the present proceedings, the said development has taken place after expiry of the period agreed to between the Parties for handing over possession of the Residential Apartment in the Project in question and, therefore, the said declaration has no relevance in the present Execution proceedings.
For the reasons stated hereinabove, it is clear that the Opposite Parties/Judgment Debtors have not complied with the directions given by this Commission in the Final Order and Judgment dated 28.02.2022. They have no plausible reason for the same and are trying to buy time to comply with the Final Order and Judgment passed in the Consumer Complaints. They are under an obligation to comply with the directions given in the said Order. Over and above the period of six weeks given to the Opposite Parties/Judgment Debtors to comply with the said Order, more than eight months have already passed but they have not complied with the same, which amounts to disobedience of the Order and they need no indulgence in the present proceedings. However, in view of the Prayer made by the Opposite Parties/Judgment Debtors, seeking time to generate funds after selling the unsold inventory of the Project and to comply with the Order, one month’s time from today, i.e. by 05.01.2023, is granted to them to do the needful and to comply with the directions given in the Final Order and Judgment dated 28.02.2022, failing which, the Complainant Association/Decree Holders shall be at liberty to file an appropriate application for taking action against the Opposite Parties/Judgment Debtors under Sections 71 and 72 of the Consumer Protection Act, 2019.
The Execution Applications stand disposed of in above terms. Pending Application, if any, also stands disposed of.