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Prashant Swahney v/s Hacinda Projects Pvt. Ltd. & Another

    Execution Application No. 205 Of 2019 In CC/1068/2017

    Decided On, 29 April 2022

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR. C. VISWANATH
    By, PRESIDING MEMBER & THE HONOURABLE MR. JUSTICE RAM SURAT RAM MAURYA
    By, MEMBER

    For the Appellant: Abhishek Chauhan, Advocate. For the Respondents: Dhananjai Jain, Rachit Mittal, Advocates.



Judgment Text

1. Heard Mr. Abhishek Chauhan, Advocate, for the decree-holder, Mr. Dhananjai Jain, Advocate, for judgment-debtor and Mr. Rachit Mittal, Advocate, for the opposite party-2, on maintainability of the execution application.

2. Balbir Singh Nagpal and Prashant Sawhney filed above complaint for following reliefs:- (i) grant permission under Section 12(1)(c) of the Consumer Protection Act, 1986 to jointly present the complaint; (ii) direct respondent No.1 not to give effect to the revised project plans and adhere to the original project plans represented to the flat-buyers including the complainants at the time of booking of residential units; (iii) direct respondent No.2 to issue confirmatory certificate if the original building/site plan has been revised as being claimed by respondent No.1; (iv) direct respondent No.1 to handover possession of apartments duly completed in all respects and in conformity of the original site/building plans to the complainants and all other customers/allottees of the project after taking the complete Completion certificate. (v) direct respondent No.1 to appoint a third party surveyor/auditor at its own cost in consultation with the majority of allottees’ of the project for inspection of the towers to ascertain the quality of the construction and in the eventuality, the third party surveyor/auditor arrives at an opinion that the quality of construction is poor and in contraventions of the standards and specifications, the respondent No.1 be directed to take all remedial measures to remedy the aforesaid beach solely at its own cost to the satisfaction of the said third party surveyor/auditor; (vi) direct respondent No.1 to compensate adequately for loss of common areas, green areas and other areas which the complainants and other allottees/customers were deprived of because of the enhancement of apartments from 300 to 336; (vii) direct respondent No.1 to refund car parking charges along with 18% interest therein collected by it from the complainants and all other customers/allottees; (viii) direct respondent No.1 not to charge any amounts on the account of Interest Free Maintenance Services as the same is payable by the complainants and all other customers/allottees to the registered RWA; (ix) direct respect No.1 to pay interest at the rate of 18% on the amounts paid by the complainants and all other numerous customers/allottees after expiry of 39 (thirty-nine) months from the date of the allotment of the apartment i.e. from 40th month towards delayed possession until the date of actual physical possession handed over to the complainants and other numerous customers/allottees; (x) direct respondent No.1 to provide a copy of the deed of declaration filed with respondent No.2 to the complainants and all other customers/allottees of the project; (xi) direct respondent No.1 to pay a sum of Rs.2000000/- (Rupees twenty lakhs only) towards compensation to each of the complainants and all other customers allottees on account of mental agony, trauma and harassment caused by respondent No.1; (xii) direct respondent No.1 to refund monies collected for the terrace open area from complainant No.2 and other allottees of the project along with interest @18% p.a until realisation; (xiii) direct respondent No.1 to pay a sum of Rs.200000/- (rupees two lakhs only) towards litigation cost to each of the complainants.

(xiv) any other relief which is deemed fit and proper, in the facts and circumstances.

3. The complainants filed I.A. No.6582 of 2017, under Section 12(1) (c) read with Section 2(1) (b) (iv) and Section 22 of Consumer Protection Act, 1986, for grant of permission to the complainants to jointly initiate the complaint against the respondents as the complainants and other buyers/allottees have common grievance and interest. This Commission, vide order dated 01.06.2017, issued notice in I.A. No.6582 of 2017. Thereafter, the opposite parties were granted time for filing their written reply in I.A. No.6582 of 2017, vide order dated 12.12.2017, 27.02.2018 and 13.07.2018. On 13.07.2018, the complainant was adjourned for 31.01.2019.

4. The complainants filed I.A. No.17996 of 2018, on 25.09.2018, praying for (i) to allow this application and permit the complainants to withdraw their Consumer Complaint No.1068 of 2017 titled as Balbir Singh Nagpal and another Vs. Hacienda Project Private Limited and Another; (ii) grant liberty to the complainants to file a fresh consumer complaint against the Opposite Parties in case Opposite Party-1 does not fulfil its settlement obligations; (iii) grant any other/further orders as this Hon’ble Commission may deem fit and proper in the interest of justice.

5. On I.A. No.17996 of 2018, the complaint was listed on 28.09.2018 and following order was passed:-

“I.A. No.17996 of 2018 has been filed on behalf of the complainants seeking to withdraw the complaint. The counsel for the parties state that the matter has been settled amicably between the parties.

In view of above, the said I.A. is allowed and complaint is disposed of as withdrawn.”

6. The opposite parties

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were not given any opportunity to file reply in I.A. No.17996 of 2018. The alleged settlement was not filed along with this application nor it was verified by the Commission nor was made as part of the order. The terms of settlement were not reduced/reproduced in the order dated 28.09.2018. The complainants got their complaint dismissed as withdrawn. The order dated 28.09.2018 is not an executable order. Execution application is not maintainable. ORDER In view of the aforesaid discussions, the Execution Application is rejected as not maintainable.
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