1. The present Execution Application has been filed by RP City Welfare Association, Complainant / Decree Holder against M/s. Ramprastha Promoters & Developers Pvt. Ltd. (hereinafter referred to as the Opposite Party / Judgment Debtor Developer).
2. The Complainant, RP City Welfare Association, filed Consumer Case No. 735 of 2018 titled ‘RP City Welfare Association Vs. M/s Ramprastha Promoters & Developers Pvt. Ltd.’ before this Commission. In view of the amicable settlement reached between the Parties by way of Key Agreement, the Complaint was disposed off vide Order dated 02.12.2019 in following terms:
“We are very happy to note and appreciate that the parties have reached an amicable settlement and have filed a Key Agreement in writing which shall form part and parcel of this order. The Complaint is disposed of in terms of the Key Agreement. However, if the possession of the apartments are not handed over by 31.03.2021 as agreed between the Parties then it will be open for the complainant to file Application for payment of further amount of Rs.20,000/- per month towards rent.”
3. The Key Agreement executed between the Parties, which is part and parcel of the Order dated 02.12.2019, reads as under:-
“1. Final Date of Project completion for Skyz is March 2021. All compensation amount is considered for period of Aug.’ 14 to March’21 excluding grace periods & delay period due to forced majeure.
2. Agreed compensation amount is applicable for all Skyz buyers whoever have filed the case in NCDRC through RP City Welfare Association Details of buyers in Annexure 1.
3. It has been agreed that lump sum compensation amount of INR 11,00,000/- will be given to each member whoever is part of SKYZ compensation case filed by RP City Welfare Association.
4. Compensation amount will be adjusted in all future demands & no money will be charged from all the members till the exhaust of compensation amount INR 11,00,000/-.
5. Any balance of compensation amount will be paid to buyer at the time of delivery of project in case the overall pending payment is less than INR 11,00,000/-.
6. For project Skyz, RP City will not file any case and withdraw all exiting cases pending before any forum/court.
7. If Ramprastha fails to deliver the house by 31st March 2021, enhanced compensation as per discretion or direction of court to be paid.”
4. Since the Opposite Party/Judgment Debtor failed to satisfy the Decree dated 02.12.2019, the Complainant Association had filed present Execution Application seeking following reliefs:-
“a. Initiate actions against the respondent for non-compliance of the Order of this Hon’ble Commission passed on 02.12.2019;
b. Initiate the attachment proceedings of the immovable properties of the Opposite Party;
c. Issue warrants of imprisonment of the Directors of the Opposite Party;
d. Any other orders in the facts and circumstances of the Case on record as the Hon’ble Commission may deem fit and proper in the interest of justice may also kindly be passed.”
5. The Opposite Party/Judgment Debtor filed Affidavit, in which it was stated that the details of the Members provided in the Execution Application is wrong and denied as several members of the Complainant Association, i.e., RP City Welfare Association have approached them and have sought and received refund of the total amount; several members have filed independent Complaints before this Commission and are pursuing their Execution of Decree in their independent complaints. There are also members who are Parties in CC No.344 of 2018. It was further submitted that the list be reconciled and corrected.
6. It was further stated that as per Key Agreement, the date of possession was agreed to 31.03.2021 but due to COVID-19 pandemic, which was not attributable to the Opposite Party, the construction activities could not take place. It was stated that the date of Possession/Commencement of monthly payment of 20,000/- mentioned in the Key Agreement be amended and the revised date for possession / Commencement of monthly payment of 20,000/- was proposed to be 31.03.2022.
MISCELLANEOUS APPLICATION NO. 3 / 2022
7. During the course of Proceedings, the Opposite Party/Judgment Debtor has also filed Miscellaneous Application, i.e., MA No. 3 of 2022, for modification of the Order dated 02.12.2019 which is under Execution. In the Application it was stated that as per Settlement Agreement, the Project Skyz was to be completed by 31.03.2021 but due to Nationwide Lockdown due to COVID-19, which was unforeseeable at the time of finalization of the Agreement, construction activities were completely banned. It was further stated that the Haryana Real Estate Development Authority, Gurugram had granted extension of period of 6 months from 25.03.2020 to 24.09.2020 declaring the COVID-19 pandemic as a force majeure event. Further extension was also granted from 01.04.2021 to 30.06.2021 by the HRERA, Panchkula due to second wave of the pandemic.
8. It was further stated that they acted in good faith but could not deliver the possession upto 31.03.2021 as agreed in the Agreement due to stoppage of construction activities due to the Covid-19 pandemic, which was beyond their control. It was further stated that they initiated to raise funds from SWAMIH Investment Funds. It was stated SWAMIH Investment Funds has committed to provide 93 Crore to complete the Project on the condition that 50% of the Allottees of the Project shall provide ‘No Objection’ stating that they shall not exit from the Project. It was also stated that HRERA has approved the extension of time for possession of the Units in the SKYZ project to be 30.11.2023 and upto 31.12.2023 with grace period. In view of above submissions, it was prayed that the present application be allowed and agreed completion date of project SKYZ, i.e., 31.03.2021 be revised on the terms as this Hon’ble Commission may deem fit.
9. Per contra, Mr. Sushil Kaushik, learned Counsel appearing on behalf of the Complainant submitted that as per Section 68 of the Consumer Protection Act, 2019, an Order which once attains finality cannot be modified. Vide Judgment dated 02.12.2019, the present complaint was disposed off with the direction to handover the possession by March 2021. But after visiting the site, it was found that Project is far from completion. Legal Notice was sent to the OP in April 2021 but it was ignored by the OP Developer. Seeing no option, Execution Application No. 97 of 2021 was filed. The Opposite Party / Judgment Debtor filed an affidavit dated 25.08.2021 in which the Authorised Representative proposed revised date of possession to be 31.03.2022. Even that date has expired, still the construction of the Project is far from completion. Now, the Opposite Party / Judgment Debtor had filed another Affidavit dated 05.10.2021 by which the Opposite Party / Judgment Debtor has stated that the Project will be completed by 31.12.2023. The above conduct shows that the Opposite Party / Judgment Debtor is only buying time and is not seriously making any attempts to complete the Project.
10. It was further contended that Complainant Association has no objection if the names Richa Dua (Sl. No. 5), Kunal Gussain (Sl. No. 8), Sachin Khatri (Sl. No. 31) and Neeraj Kumar (Sl. No. 36) are removed from the present Execution Application as they have taken up alternative remedies. As far as the objection of the OP qua, whose name were not there in the Original Complaint is concerned, it was contended that the Complainant Association has also filed two Complaints bearing No. CC/732/2015 and CC/344/2018 and both the Complaints were disposed off in terms of the settlement arrived between the Parties. In terms of Clause No. 2 of the Agreement, all the SKYZ buyers who have filed the case in this Commission through the present Complainant Association were to be compensated in terms of the Settlement, to avoid any complication.
11. It was further submitted that entire country faced the lockdown due to COVID-19 pandemic, however, the restrictions were slowly and steadily uplifted by the Government on construction activity by May 2020. The Opposite Party / Judgment Debtor have delayed the construction of the Project and have also disobeyed the terms of the Settlement by not making the payment of 20,000/- towards rent every month, which shows that the conduct of the Opposite Party / Judgment Debtor. It was also submitted that Complainant Association is not party before HRERA and therefore, approval of HRERA for the Project deadline does not in any way exempts the Opposite Party / Judgment Debtor from paying the agreed compensation.
12. We have heard Mr. Sushil Kaushik learned Counsel appearing on behalf of the Complainant/Decree Holder, Mr. Sougat Sinha, learned Counsel appearing on behalf of the Opposite Party/Judgment Debtor, perused the material available on record and have given thoughtful consideration to the various pleas raised by them.
MISCELLANEOUS APPLICATION No. 3 OF 2022
13. Admittedly, no Appeal has been filed against the Order dated 2.12.2019 passed by this Commission as it was consented Order. Consequently, in terms of Section 68 of the Consumer Protection Act, 2019, the impugned Order has attained finality. Feeling aggrieved by the non-compliance of the Order dated 2.12.2019 by the Opposite Party/ Judgment Debtor, present Execution Application has been filed by the Complainant Association. During the course of Execution Proceedings, the Opposite Party/Judgment Debtor has filed present application seeking modification of the Order under Execution, which in our considered view is not maintainable. Accordingly, Miscellaneous Application No. 03 / 2022 is dismissed.
EXECUTION APPLICATION No. 97 of 2021
14. The Executing Court cannot go behind the decree even if it be erroneous is still binding between the Parties, as has been held by the Hon’ble Supreme Court in ‘Vasudev Dhanjibhai Modi vs. Rajabhai Abdul Rehman (1970) 1 SCC 670 [LQ/SC/1970/148] ’ by observing as under:
“A court executing a decree cannot go behind the decree: between the parties or their representatives it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties”
15. In the present case, the Complaint was disposed off in view of the amicable settlement by way of Key Agreement arrived at between the Parties vide Order dated 02.12.2019 and the Key Agreement is part and parcel of the Decree dated 02.12.2019.
16. Undisputedly, the Opposite Party / JD Developer has miserably failed to comply with the terms of the Key Agreement by not delivering the possession of the apartments by 31st March 2021, in view of which as per terms of the Key Agreement, the Members of the Complainant Association are entitled for monthly rent of 20,000/- per month w.e.f. 31.03.2021 in addition to Agreed Compensation of 11,00,000/- payable as per terms of the Key Agreement.
17. As far as the applicability of the agreed and / or enhanced Compensation is concerned, relevant terms of the Agreement are reproduced hereinbelow:-
“2. Agreed compensation amount is applicable for all Skyz buyers whoever have filed the case in NCDRC through RP City Welfare Association Details of buyers in Annexure 1.
3. It has been agreed that lump sum compensation amount of INR 11,00,000/- will be given to each member whoever is part of SKYZ compensation case filed by RP City Welfare Association.
4. Compensation amount will be adjusted in all future demands & no money will be charged from all the members till the exhaust of compensation amount INR 11,00,000/-.
6. For project Skyz, RP City will not file any case and withdraw all exiting cases pending before any forum/court.”
18. A bare perusal of the above Clauses of the Key Agreement makes it clear that the agreed and / or enhanced compensation will be applicable only to those Members who have filed cases for Compensation in relation to SKYZ Project before this Commission through the Complainant Association and have withdrawn/settled all their pending cases in view of the Key Agreement. The Members who have already availed alternative remedies or have taken refund from the Opposite Party / Judgment Debtor shall not be entitled for agreed and / or enhanced Compensation.
19. Consequently, the Opposite Party / Judgment Debtor Developer is directed to pay enhanced compensation by means of monthly rent of 20,000/- per month w.e.f. 01.04.2021 till 31.05.2022 to each of the Members of the Complainant Association, within two months from today and shall continue to pay 20,000/- on monthly basis, w.e.f. 01.06.2022 till the date of handing over of the possession of the respective Unit to the Members of the Complainant Association, in addition to Agreed Compensation of 11,00,000/- payable as per terms of the Key Agreement, failing which proceedings under Section 72 of the Consumer Protection Act, 2019 will be initiated against the Opposite Party / Judgment Debtor.
20. The Execution Application stand disposed off in above terms. All the pending applications, if any, also stand disposed off.
