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Judgment
R. K. Agrawal, J., President Member
The present Execution Application has been filed by Mrs. Kamal Girotra and S.C. Girotra, the Complainants/Decree Holders, against M/s Ansal Crown Infrabuild Pvt Ltd and its Directors, hereinafter referred to as Opposite Parties/Judgment Debtors.
Brief facts of the Case are that the Complainants had booked a Residential Apartment vide their Application dated 12.08.2012 in the Group Housing Project, namely, “Ansal Crown Heights”, proposed to be developed by the Opposite Parties, whereupon vide Letter dated 15.09.2012 Flat No. 102, Tower-4 of the Project, having approximate Super Area of 1788 sq. ft., against total sale consideration of Rs.70,23,264/-, was allotted to the Complainants. The Complainants had paid ₹ 56,19,972/- to the Opposite Parties. A sum of ₹ 2,36,000/- was adjusted by way of reduction in the per sq. ft. rate from ₹3,300/- to ₹3,168/- and the said amount was mentioned as special discount in the ledger of the Opposite Parties. The Flat Buyer’s Agreement was executed on 23.09.2016 (after 4 years’ delay) and the possession was required to be handed over on or before 23.03.2018. Since the Project was not complete within the stipulated period, the Complainants were not interested in taking possession of the Apartment and accordingly sent various representations/letters to the Opposite Parties, seeking refund of the amount paid but of no avail. Feeling aggrieved, the Complainants filed the Consumer Complaint before this Commission, alleging deficiency in service and seeking refund of the amount paid along with interest and compensation. The Opposite Parties filed their written version, denying the allegations leveled in the Complaint. On appreciation of the evidence adduced by the Parties and the material available before it, this Commission vide Final Order and Judgment dated 28.12.2021 partly allowed the Complaint, observing/directing thus:
“15. For the aforesaid reasons, I am of the view that in the present case also, the Complainants cannot be made to wait indefinitely for possession of the flat, as the construction is still not complete and the Developer is not in a position to give an exact date of offering of possession to the Complainants. Therefore, the Complainants are entitled for refund of the principal amount with reasonable rate of interest.
Respectfully following the decisions of the Co-ordinate Benches of this Commission, I partly allow the Complaint and direct the Opposite Party Developer to refund the entire principal amount deposited by the Complainants with interest @ 9% p.a. from the respective date of deposit till the realization, within a period of six weeks from the date of receipt of a copy of this Order failing which the amount shall carry interest @ 12% p.a. for the same period. The Opposite Party Developer shall also be liable to pay ₹50,000/- as costs of litigation to the Complainants.”
The Opposite Parties did not comply with the directions given in the Final Order and Judgment dated 28.12.2021 and, therefore, the Complainants have filed the present Execution Application, seeking execution of the aforesaid Order. The Complainants have, inter alia, stated that the Opposite Parties/Judgment Debtors have not complied with the directions given by this Commission vide Order dated 28.12.2021 and thus they are liable to pay interest @ 12% on the principal amount of ₹59,16,972/-. In the Execution Application, the Complainants have prayed for the following directions:
“a. Punish and Issue warrants of arrest u/sec 72 of the Consumer Protection Act, 2019 against the accused persons Mr. Gopal Ansal, Mr. Sanjeev Kumar Guleria, Ritu Ansal, Subhash Verma and Suman Dahiya who are Directors/promoters of the respondent/judgment debtor companies for violating order dated 28.12.2021 passed by this Hon’ble Commission.
b. Sentence the above mentioned accused persons, Mr. Gopal Ansal, Mr. Sanjeev Kumar Guleria, Ritu Ansal, Subhash Verma and Suman Dahiya to imprisonment for a terms of 3 years each for violating the order dated 28.12.2021 passed by this Hon’ble Commission.
c. Issue recovery certificate and warrants of attachment and conduct auction sale to recover the compensation amount as mentioned in Annexure-B, by way of attachment of residential property bearing address House no. 6, Ansal House, Aurangzeb Road New Delhi and the property bearing address 118, UFF, Prakash Deep Building, 7, Tolstoy Marg, Connaught Place, New Delhi-110001.
d. Attach the salary account of the accused persons.
e. Direct the accused person to disclose by way of affidavit details of all moveable and immovable properties owned by them and recover the decretal amount from the said assets.
f. Pass any further order or orders which this Hon’ble Commission may deem fit and proper in the interest of justice.
g. Award cost of this petition in favour of the decree holders”.
Upon notice, the Opposite Parties have filed Reply to the Execution Application. It has been submitted therein that due to unforeseen circumstances the Opposite Parties are not able to satisfy the Order and Judgment dated 28.12.2021. Every endeavor has been made to complete the Project, viz. a sum of ₹263.38 Crores has been invested into the Project and 350 people, including the Contractors and material suppliers, have been deployed to complete the Project, but their all efforts gone in vain after the Order and Judgment dated 28.12.2021 was passed by this Commission. The Opposite Parties had been sanctioned an amount of Rs.47.00 Crores on 15.03.2022 and first disbursement of Rs.10.00 Crores was made 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. The construction of the Project was at its peak in August, 2022. Insofar as Towers 7, 8, 9 and 10 are concerned, the Fire NOC has been obtained and Occupancy Certificate (OC) has already been applied on 25.05.2022. The labour and manpower was mobilized to ensure completion of remaining works and the Contract Work Order had been issued and material was supplied at the site. After dismissal of MA No. 135 and 136 of 2022, filed by the Opposite Parties before this Commission, seeking modification, on 25.08.2022 (the said Applications had been filed seeking modification of the Final Order and Judgment dated 28.02.2022 passed by this Commission in Consumer Cases No. 86 and 2600 of 2018 in favour of the Complainants therein and against the same Opposite Parties), the Bank withdrawn the balance SWAMIH Fund from the Escrow Account, amounting to Rs.5.00 Crores, which resulted in non-completion of the Project due to shortage of funds. Certain other factors attributable to the Department of Town and Country Planning (DTCP), Haryana, also resulted in the delay of 1286 days in the renewal of the License for the Project and further delay of 177 days in revalidating the building plans of the Project. There was also a further delay of almost 16 months in renewal of the Environmental clearance of the Project. Approximately, a sum of ₹10.50 Crores was due from the defaulting allottees, which also contributed to the shortage of funds and delay in the Project. The Covid-19 period from 01.04.2020 to 30.06.2021 (i.e. 14 months) has been declared as a force majeure event by the HRERA Authorities. Further, it has been stated that the Opposite Parties are under an obligation to pay the compensation. That can be done after selling the unsold inventory of the Project, which is under the lien with SWAMIH Fund. Therefore, a sympathetic view be taken against the Opposite Parties and may be given time to negotiate with the SWAMIH Fund, get the lien on the unsold inventory, sell the same in the market to generate funds in order to comply with the Order and Judgment passed by this Commission in the main Complaint Case.
Heard learned Counsel for the Parties and perused the material on record, including the Final Order and Judgment dated 28.12.2021 passed in Consumer Complaint No. 1053/2019, which is sought to be executed by means of the present Execution Application, as also the Reply filed by the Opposite Parties/Judgment Debtors to the Execution Application.
In the Reply filed to the Execution Application, the Opposite Parties/Judgment Debtors have referred to “unforeseen circumstances”, on account of which they are not able to satisfy the Final Order and Judgment dated 28.12.2021 passed by this Commission in the Consumer Complaint No. 1053 of 2019, but they have not specified those “unforeseen circumstances”. 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 28.12.2021, the Complainants/Decree Holders cannot be made to suffer. The Complainants/Decree Holders had been allotted a Residential Apartment in Tower-4 of the Project and, therefore, the submission of the Opposite Parties/Judgment Debtors that for Towers No. 7, 8, 9 and 10 they have already obtained NOC and Occupation Certificate has been applied for on 25.05.2022, is not relevant. As far as the averments made regarding filing of Miscellaneous Applications No. 135 and 136 of 2022 and dismissal thereof by this Commission on 25.08.2022 are concerned, as stated above, the said Applications had been filed in other Consumer Complaints, related to the same Opposite Parties/Judgment Debtors and cannot be taken note of in the present Execution proceedings. Even otherwise, filing of any Application after disposal of the main Case would not ipso facto afford a reason to a party not to comply with the directions given in the said main Case. 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 Complaint 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.
In view of what has been 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 28.12.2021. 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 Complaint. 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 nine 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 28.12.2021. If still there is non-compliance of the said Order by the Opposite Parties/Judgment Debtors as on 05.01.2023, the Complainants/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 Application stands disposed of in the above terms. Pending Application, if any, also stands disposed of.