Parklands Pride Buyers Association vs BPTP Ltd. & Anr

MA/77/2023

Mr. Sachin Mehta, whose name is mentioned at serial no. 35 in the list, on whose behalf, Parklands Pride Buyers Association filed the original complaint, has filed above Miscellaneous Application for recalling the order dated 04.08.2022 allowing RA/35/2022.  The Applicant has taken a ground that in RA/35/2022, notice has not been issued/served to him, therefore, the order be recalled.

Since the complaint was filed by Parklands Pride Buyers Association for the benefit of consumers, therefore, in the Review Application, notice was issued and served upon the Parklands Pride Buyers Association. Individual members were not the Complainants in Complaint, therefore, notice in Review Application was not required to be issued to the individual members on whose behalf the complaint was filed. However, the Applicant has been provided opportunity to argue on merits and pointing out illegality in the order dated 04.08.2022.

Parklands Pride Buyers Association filed CC/2035/2018, which was allowed by this Commission by the order dated 14.02.2022 and following directions have been passed:

“i. The Members of the Complainant Association are directed to take possession, if they so desire, of the booked Apartments after completion of the Project as per the terms of the Floor Buyer's Agreement;

ii. The Opposite Party Developer shall furnish the complete details of the outstanding amount to the Allottees with the reason of enhancement, if any;

iii. The Opposite Party Developer is directed to pay Delay Compensation in the form of simple interest @ 9% p.a. on amount deposited by the Allottee for the period of delay which has occurred from the committed date of possession including grace period till the date of the offer of possession, i.e. 16.07.2018 as the Occupation Certificate (O.C.) had been issued on 19.06.2018.

iv. The Opposite Party Developer shall work out the Delay Compensation after making adjustment of the outstanding charges payable by the Complainants and make payment of the Compensation to the Complainants within six weeks from today;

v. After adjusting the Delay Compensation, if any amount remains payable by the Allottee, then the Allottee will make the payment of the shortfall to the Opposite Party Developer within six weeks from today;

vi. The Opposite Party Developer shall deliver the possession of the allotted Apartments to the Allottees, if not already delivered, within eight weeks from today; and

vii. In case, the Allottee is not interested to take possession of allotted Apartment, the Developer shall refund the entire deposited amount with interest @ 9% p.a. from the respective date of deposit till 16.07.2018, i.e., the actual date of offer of possession, within a period of six weeks from today failing which the amount shall carry interest @ 12% p.a. for the same period. The Allottee shall also be entitled for a sum of ₹50,000/- as costs of litigation."

Thereafter, the Opposite Party filed RA/35/2022, stating therein that as the occupation certificate has been obtained on 19.06.2018 and thereafter all the members of the Complainant were offered possession on 16.07.2018, therefore, in view of the judgment of the Supreme Court in Ireo Grace Realtech (P) Ltd. Vs. Abhishek Khanna, (2021) 3 SCC 241, the direction number (vii) above could not be passed.

While deciding the Review Application, this Commission found that the judgment of the Supreme Court in the case of Abhishek Khanna (Supra) was not properly appreciated, while passing order dated 14.02.2022, therefore, the Review Application was allowed and direction number (vii) has been deleted.

The Counsel for the Applicant submits that in the case of Abhishek Khanna (Supra), there were two courses provided in respect of Chart A allottees, namely, the allottees mentioned at serial no 1 & 2, were given option to take possession, while allottees mentioned at serial no. 3, was given option to take refund of money. In such circumstances, while considering in the case of Abhishek Khanna (Supra) direction no. (vii) has been incorporated in the order dated 14.02.2022 and liberty was given to the allottees who are not interested in possession, to take refund of money.

We have considered arguments of the Counsel for the Applicant. Paragraph 44 of the judgment of Abhishek Khanna (Supra) is quoted below:

“ We are of the view that allottees at Serial Nos. 1 and 2 in Chart A are obligated to take possession of the apartments, since the construction was completed, and possession offered on 28-6-2019, after the issuance of occupation certificate on 31-5-2019. The developer is, however, obligated to pay delay compensation for the period of delay which has occurred from 27-11-2018 till the date of offer of possession was made to the allottees.”

So far as, paragraph 45, in which the allottee mentioned at serial no. 3 in Chart A is concerned, since before National Company Law Tribunal, the Developer has given affidavit for refund of the amount in four equal instalments, therefore, looking to the offer of the Builder, he was permitted to take refund. While in paragraph 44, it has been clearly observed that if possession has been offered after obtaining occupation certificate, then the buyer is contractually obligated to take possession. The order of review dated 04.08.2022 does not suffer from any illegality. The MA is misconceived liable to be dismissed.

EA/169/2022

EA has been filed for enforcement of direction (vii) by which the some members of the association were permitted to take their refund. As this direction has already been deleted by the order dated 04.08.2022, therefore, no order in EA can be passed. Accordingly EA is liable to be dismissed.

ORDER

MA/77/2023 and EA/169/2022 are dismissed.