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Judgment
R. K. Agrawal, J., President
The present Execution Application has been filed by Shamshul Hoda Khan, Complainant / Decree Holder against M/s. Ireo Victory Valley Pvt. Ltd. (hereinafter referred to as the Opposite Parties / Judgment Debtors).
Brief facts of the case are that Ms. Ghazala Khan daughter of Sh. Shamshul Hoda Khan, booked a residential apartment in a Project situated in Sector-67, Gurgaon being developed by M/s Ireo Victory Valley Pvt. Ltd., (hereinafter referred to as the Judgment Debtor). The Judgment Debtorsallotted Apartment No. D(18)802 to the Complainant/Decree Holder. Despite making payment as per demand of the Judgment Debtor, it failed to deliver the possession of the Apartment to the Complainant/Decree Holder within stipulated period. Alleging Deficiency in Service and Unfair Trade Practice on the part of the Judgment Debtors, the Complainant filed Consumer Complaint, being CC No. 2110 / 2016 with this Commission. Vide Order dated 17.01.2019, this Commission allowed the Complaint in following terms:-
"(i) The Opposite Parties shall deliver possession of the allotted residential unit, complete in all respects, to the Complainant within 30 days from today.
(ii) The Opposite Parties shall pay compensation in the form of simple interest @ 8% per annum to the Complainant for the period from 17.8.2014 till 2.4.2018, after excluding therefrom the statutory time fixed for the issuance of the Occupancy Certificate. The compensation as per the Buyers Agreement which the Opposite Parties has already credited in the account of the Complainant while offering possession vide letter dated 2.4.2018, shall be deducted from the amount so calculated.
(iii) The compensation to the Complainant in terms of this order shall be paid on the entire amount which she had paid to the Opposite Parties on or before 17.8.2014.
(iv) The balance amount due from the Complainant in terms of the demand letter dated 2.4.2018 shall be adjusted by the Opposite Parties out of the compensation payable to the Complainant in terms of this order and the balance amount of compensation shall be paid to her within three months from today.
(v) The Opposite Parties shall pay a sum of Rs.25,000/- as cost of litigation to the Complainant."
The Opposite Parties / Judgment Debtors had not complied with the directions given vide Order dated 17.01.2019.Feeling aggrieved the Complainant / Decree Holder has filed the present Execution Application with the following prayer:-
" a) Immediately handover the said flat complete in all respect to the Complainant or her agent/attorney/ with advance notice of 15 days;
b) Issue notice of Possession to the Complainant forthwith;
c) Give compensation @ 8% simple interest on or before 17/08/2014.
d) Give clear calculation sheet as per direction of this Hon'ble court.
e) Pass such other order/orders this Hon'ble court deem fit and proper in the interest of justice. "
The Judgment Debtorsfiled Reply to the Execution Application in which they submitted that vide e-mails dated 16.04.2019 and 22.05.2019 they have offered the possession of the Apartment and asked the Complainant to coordinate for the registration process of conveyance deed, but the Complainant/Decree Holder did not come forward.Vide email dated 11.11.2019, they have also sent statement of calculation showing the balance refundable amount payable to the Complainant/Decree Holder after making the necessary deductions as necessitated in Para 13 of the Order dated 17.01.2019, but the Complainant / Decree Holder did not respond.They further submitted that with reference to clause (c) and (d) of the Prayer in the Execution Application, the Judgment Debtorshad filed Review Application before the Hon'ble Supreme Court of India vide Diary Number 24066 of 2019. They have further submitted that they have taken all bonafide steps to comply with the directions given vide Order dated 17.01.2019 and there was no willful disobedience on their part.
Rejoinder was filed by the Complainant/Decree Holder, in which they denied the contentions of the Judgment Debtorsand submitted that the Judgment Debtorswas liable to give the possession within 30 days from the date of passing the Order, i.e., 17.01.2019.The Complainant/Decree Holder time and again asked through E-mails with regard to possession and calculation of compensation @8% simple interest on the total amount paid but the same was not done till 11.11.2019 and that too when the Complainant took steps for compliance of the Order of this Commission for issuance of warrant of arrest against the Director of the Judgment Debtor.It was also submitted that the Judgment Debtorsconcealed the fact that against the Order dated 17.01.2019, they had filed Civil Appeal No. 4081 / 2019 before the Hon'ble Supreme Court, which was dismissed on 03.05.2019.The Judgment Debtorsalso filed Review Application before the Hon'ble Supreme Court which was also dismissed on 15.10.2019.The Complainant/Decree Holder prayed that immediate directions be issued to the Judgment Debtorsto comply with the directions given vide Order dated 17.01.2019 passed by this Commission.
During the course of proceedings, on 31.01.2020, this Commission passed the following Order:-
" Pursuant to the Order dated 14.11.2019 and 29.01.2020, Mr. Mohd. Aseem, the then Director of the Opposite Parties / Company appearing in-person states that the Order passed by this Commission on 17.01.2020 in Consumer Complaint No. 2110 of 2016 shall be complied in three monthly instalments starting from the Month of March, 2020.
Let an Affidavit be filed giving this undertaking within a week.
List on 11.02.2020.
The appearance of Mr. Mohd. Aseem, the then Managing Director of the Opposite Parties on future dates is exempted. "
In compliance of the afore-noted Order, the Judgment Debtorsfiled an Affidavit on 11.02.2020 stating that in terms of the Order dated 17 January 2019, the Opposite party was to pay the total compensation amount at 8% p.a., which is 39,02,940/- (Rupees Thirty Nine Lakh Two Thousand Nine Hundred Forty) to the Complainant for the period from 17 August 2014 till 02 April 2018, after excluding therefrom the statutory time fixed for issuance of the Occupancy Certificate and also deducting the delay compensation already offered in the Notice of Possession dated 02 April 2018.
The Judgment Debtorspaid 13,00,980/- towards I st installment of compensation to the Complainant on 09.03.2020 but failed to pay 2 nd and 3 rd installments which were falling due on April and May 2020.Being aggrieved, the Decree Holder/Complainant filed IA No. 5502 / 2020 seeking direction to the Judgment Debtorsfor paying the 2 nd and 3 rd Installment of compensation with penal interest with additional direction to issue fresh notice of Possession to the Complainant/Decree Holder.
The Judgment Debtors/ Opposite Parties filed short Affidavit and Reply to the IA No. 5502 / 2020, in which it was stated due to Covid-19 Pandemic and provisionally attachment of its bank account by the Principal Commissioner, CGST Gurugram, 2 nd and 3 rd installments of compensation could not be paid and it was prayed that they may be allowed three months' time to make the payment of due amount with the installments falling due on December 2020, January 2021 and February, 2021.
In compliance of Order dated 22.01.2021, the Judgment Debtors/ Opposite Parties filed another Short Affidavit on 08.02.2021 stating therein that upon the Execution Application being filed, they filed an Affidavit dated 19.03.2020 stating that the amount payable to the Complainant is 39,02,940/-.However, it is clarified that this amount was stated erroneously as it did not take into account various charges which are payable by the Complainant upon taking possession of the flat such as RWA charges, club membership charges and various other charges.After deducting these charges, the actual amount which was due by way of compensation to the Complainant is only 26,66,741/-.It was stated that have paid 13,00,980/- by Demand Draft No. 053586 dated 09.03.2020 to the Complainant/Decree Holder. He has filed the following calculation sheet:-
Remarks
Paid
From Date
Till Date
No. of days
Rate of Interest
Interest Per day
Total Interest
Amount Received T i l l 17.08.2014
3,32,77,937
17-08-14
02-04-18
1324
8%
7294
9,656,984
Less
Interest for the period
OC in
progress
33,277,937
09-02-17
28-09-17
231
8%
7294
16,84,867
Less
Delayed Compensation already given in NOP
487748
Balance Payable
7484369
Less
TDS @10% on 7484369
748437
Net Payable
6735932
Outstanding as per Notice of Possession
Less
BSP
1204502
Less
IAC
66464
Less
Labour Cess Charges - F
230694
Less
Carrying Cost - FT
369109
Less
Internal Gas Pipe Laying & Meter Charges
23822
Less
Security Depost for EC Connection
14000
Less
Electrical Connection charge
20978
Less
Stamp Duty Charges
1728000
Less
Administrative Charges for Registration
6720
Less
Delayed Interest Charges
300948
Less
VAT Liability Amnesty
296362
Less
RFMS
595512
Less
Club
708000
Add
Delay Comp. EDC & IDC
1495919
4069191
Less
Paid on 09.03.2020
1300980
1300980
Balance Refundable after all adjustments
1365761
It was also stated the balance refundable amount of 13,65,763/- was also paid by Demand Draft No. 442027 dated 21.12.2020 to the Complainant/Decree Holder and, therefore, they have made the entire payment of the compensation to the Complainant.It was further stated that the flat is ready for possession and the finishing work is going on.The authorized representative of the Complainant / Decree Holder visited the apartment on 12.01.2021 to view the progress and consented to take physical possession.It was further stated that physical possession letter will be issued to the Complainant while handing over actual physical possession of the apartment.
On 17.03.2021 during the course of Proceedings, learned Counsel for the Complainant had handed over a list of deficiencies in the Apartment in question to Ms. Renu Gupta, learned Counsel appearing for the Judgment Debtors/Opposite Parties, who, on instructions received from Mr. Pawan Sharma, Legal Manager of the Judgment Debtors/Opposite Parties, who is also present in person, has stated that the deficiencies shall be removed.
I have heard Mr. Athar Alam, learned Counsel for the Complainant/Decree Holder, Ms. Renu Gupta, learned Counsel for Judgment Debtorsand perused the averments made in the Application as also the Order dated 17.01.2019 passed in Consumer Complaint No. 2110 / 2016 "Shamshul Hoda Khan vs. M/s. Ireo Victory Valley Pvt. Ltd. & Anr.", which is sought to be executed by means of the present Execution Application.
As far as the payment of Compensation is concerned, vide Order dated 22.01.2021 both the Parties were granted two weeks' time to file their objection and detailed calculation of the amount sought by the Complainant and also the amount if at all to be paid by the Opposite Parties.In compliance of this Order, the Judgment Debtors/ Opposite Parties had filed short affidavit alongwith calculation sheet showing the payable compensation as 26,66,741/- after deducting various charges as mentioned in the Apartment Buyer's Agreement, executed between the Parties.The Judgment Debtors have also filed the proof of payment of 26,66,741/- to the Decree Holder/Complainant.This has not been rebutted by the Decree Holder / Complainant by filing Objection or Calculation Sheet, meaning thereby that the payment of the Compensation has been fully satisfied
As far as the possession of the Unit/Apartment is concerned, the Judgment Debtors/Opposite Parties are directed to hand over the physical possession of the Apartment in question to the Complainant after removing all the deficiencies pointed out by the Complainant/Decree Holder within a period of four weeks from today, failing which proceedings under Section 27 of the Consumer Protection Act, 1986 will be initiated against the Judgment Debtors/Opposite Parties.
The Execution Application stands disposed off in above terms.Pending application, if any, also stands disposed off.