Haryana

Karnal

CC/578/2020

Adesh Jain - Complainant(s)

Versus

Aegis Value Home Limited - Opp.Party(s)

Jitender Rana

13 Aug 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                        Complaint No. 578 of 2020

                                                        Date of instt.17.12.2020

                                                        Date of Decision:13.08.2024

 

Adesh Jain son of Shri Jaynti Prashad Jain, resident of 428/7, Nehru Nagar, Meerut City, Gandhi Ashram, Meerut (Uttar Pradesh).

 

                                               …….Complainant.

                                              Versus

 

1. Aegis Value Home Limited, 55, 2^nd floor Land Lane-2, Westend Marg, Saidulajab near Metro Station New Delhi, South Delhi-110030 through authorized Signatory/Managing Director.

 

2. Aegis Value Home Limited, 27, Gold Floors behind Beantak School, near Radha Swami Satsang Bhawan, Sector-33, Karnal through its Manager/Authorized Person.

 

3. M/s JD Universal Infra Limited, RU-400, Pitampura Outer Ring Road, New Delhi-110034 through its Authorized Signatory/Managing Director.

                                                                    …..Opposite Parties.

 

Complaint under Section 35 of Consumer Protection Act, 2019.

 

Before   Shri Jaswant Singh……President.

      Ms. Sarvjeet Kaur .…..Member

 

 Argued by: Shri Jitender Rana, counsel for the complainant.

                    Sh. Sandeep Sharma, counsel for the OPs no.1 & 2.

                    OP no.3 exarte (vide order dated 01.07.2022).

 

                     (Jaswant Singh, President)

ORDER:   

                

                The complainant has filed the present complaint under Section 35 of the Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that complainant and his wife namely Aishwarya Jain, have been re-allotee of residential Apartment vide agreement dated 26.03.2018 was also executed among the parties with the consent of original/first allottee. The said residential apartment was booked by its original/first allottee namely Mrs. Roome Jain and Shri Vinod Jain on 28.10.2013 in the aforesaid project of the OPs and the OPs had also issued a Provisional allotment letter dated 28.02.2014 to the original/first allottee. Total covered area of the said residential apartment is 1200 sq. ft. The value of the said residential apartment is Rs.1650/- per sq. ft after a discount(Innova) Rs.9,90,000/- from BSP @ 2475 per sq. ft. and EDC, IDC, PLC, IFMS and all other charges as per the opted payment plan. In this way the total basic price which was to be payable Rs.19,80,000/-.  The original/first allottee had paid total amount of Rs.12,83,000/- after discount of Tovota Innova of Rs.9,90,000/-, vide application no.5538. As the complainant is the re-allottee of said apartment, as such he has paid total Rs.22,73,000/- against the aforesaid apartment to the original/first allottee and after that the agreement dated 26.03.2018 was executed in favour of the complainant by OPs with the consent of original/first allottee. The possession of the said residential apartment was to be offered/handed over to the complainant within the period of 42 months from the date of booking with grace period of 6 months available to OPs without any additional charges. Complainant inspected the site in question but construction work of the residential apartment is not completed as per agreement and the complainant requested to OPs to complete the construction of the apartment as per agreement and requested them to give the possession of the said residential apartment as he had paid the entire amount but all in vain. OPs have delayed the development work despite of that most of the payment was paid by the complainant within the prescribed period despite of that the OPs have delayed the development work at about more 2-3 years and still the construction work is not completed by the OPs for which the complainant and his family cannot reside in the said residential apartment immediately. As such he is entitled to refund the aforesaid entire deposited amount alongwith interest @ 24% per annum from the date of deposit tll its realization beside this complainant is entitled the compensation of Rs.2,00,000/- on account of physical harassment, mental agony and monetary losses suffered by him.  In this way there is deficiency in service and unfair trade practice on the part of the OPs. Hence this complaint.

2.             On notice, OPs no.1 and 2 appeared and filed its written version raising preliminary objections with regard to maintainability and concealment of true and material facts. On merits, it is pleaded that the present complaint has been filed without impleading the co-sharer of the alleged flat in question i.e. Mrs. Aishwarya Jain and neither the complainant has sought the permission from this Commission under the provisions of Section 35 (I)(C) of the Consumer Protection Act, 2019 for filing the present complaint on behalf of the co-allottee and thus, the present complaint cannot be adjudicated.  The OPs were developing the Group Housing Project namely ‘Aegis Woods’ situated at Sector-33, Karnal, Haryana in the residential colony being developed by OP no.3 who was granted with the license under the town planning scheme bearing no.20/38/2010-3CI dated 30.03.2015 by the Director of Urban Local Bodies, Panchkula in continuation of the letter of intent dated 06.06.2014 by the Government of Haryana approving the project in principal. The Group Housing Project of the OPs was situated on an area measuring 1.46 acres in the said residential colony which was being developed by the OP no.3 an area measuring 24.94 acres in the revenue estate of village Phoosgarh, Karnal. After the grant of license mentioned above for the residential colony and the project of the OPs, various persons came forward to get themselves registered for allotment of residential/commercial plots in the project of the OPs. The development of a housing project by a developer is dependent upon various government policies and the statutory levies raised by the government from time to time. The OPs purchased a plot of Group Housing measuring 1.46 acres vide means of an allotment letter and full payment agreement to sell from the OP no.3 who is land owner and licensee i.e. OP no.3 of a T.P. Scheme admeasuring 24.94 acres in village Phoosgarh, tehsil and District Karnal. It is further pleaded that OPs and other various third parties/persons and companies have purchased different pieces of residential and commercial plots in the said T.P. Scheme. These third parties including the OPs, by way of allotment letter and various agreement to sell, applied for building plans for raising construction as per norms on these plots purchased from OP no.3 to the competent authority i.e. Municipal Corporation, Karnal. It is further pleaded that the matter is under the consideration of the DULB in the appeal filed the Resident Welfare Association of the flat owners of the project in which the flat in question is situated and as per the information of the OPs, the same is pending adjudication before the learned Financial Commissioner/Principle Secretary Department of Urban Local Bodies, Haryana Civil Secretariat, Sector-17, Chandigarh, Haryana for 24.03.2021 and immediately upon the consideration of the same, the final outcome is there, the OPs shall not delay on their part to complete the project. A bare perusal of the facts and circumstances, it can be established on record that the whole scenario of the case in hand is a classic case of ‘Force Majeure’ and rather the OPs are suffers in the hands of the OP no.3 as on one hand the OPs have made huge payment towards the statutory levies/compounding fee etc. and on the other hand the burden of complaints like the present case are levied on its shoulder. It is further pleaded that complainant is permanent resident of Meerut City, Uttar Pradesh, he made an investment in the project of the OPs and he is not the potential user of the flat in question. It is further pleaded that complainant has neither impleaded his wife as a complainant, nor has sought the permission from this Commission to file the complaint jointly. Thus, in the absence of the wife of complainant, who is also an allottee of the flat in question, the present complaint cannot be maintainable before this Commission. The allottees are also not impleaded as necessary party to this complaint. It is further pleaded that complainant himself admitted the basic sale price of the flat in question to be at Rs.19,80,000/- excluding the EDC, IDC, PLC, IFMS and all other charges as per the opted payment plan out of which Rs.12,83,000/- admittedly stands paid by him. On the other hand, complainant tried to mislead this Commission by submitting the amount of discount provided by the OPs in the amount paid towards the sale consideration. Even otherwise, the agreement to sell, placed on record by the complainant himself divulges that the basic sale consideration was only Rs.19,80,000/- and the EDC, IDC, PLC, IFMS and all other charges were payable as per the opted payment plan. The situation which has arisen was beyond the control of the OPs and since the policy dispute between the OP no.3 and the Government of Haryana is there, even OPs are suffering under the hands of the facts and circumstances who have invested crores of rupees on the development of the infrastructure of the same and still, they are not able to enter into the project site. It is further pleaded that the complainant is still liable to make the payment of Rs.6,97,000/- towards the Basic Sale Price and the EDC, IDC, PLC, IFMS and all other charges were payable as per the opted payment plan. Since the amount of the EDC and IDC is still not decided by the Government and the same is pending adjudication at the ends of the Government Department of Urban Local Bodies, it cannot be said to be delayed by the OPs. No act can be done by the OPs as they are handicapped in the hands of the Government of Haryana. There is no deficiency in service on the part of the OPs. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

3.             On notice, OP no.3 did not appear despite service and opted to be proceeded against exparte, vide order dated and 01.07.2022 of the Commission.

4.             Parties then led their respective evidence.

5.             Learned counsel for the complainant has tendered into evidence affidavit of complainant Ex.CW1/A, affidavit of Aishwya Jain Ex.CW2/A, copy of Agreement Ex.C1, copy of Special Discount letter Ex.C2, copy of Provisional letter Ex.C3, copy of Apartment Buyer’s Agreement Ex.C4, copies of payment receipts Ex.C5 to Ex.C12 and closed the evidence on 23.12.2022 by suffering separate statement.

6.             On the other hand, learned counsel for the OPs no.1 and 2 has tendered into evidence affidavit of Sandeep Sharma Ex.RW1/1, copy of Apartment Buyer’s Agreement Ex.RW1/2, copy of transfer deed Ex.RW1/3, copy of demand letters Ex.RW1/4 and closed the evidence on 14.11.2023 by suffering separate statement.

7.             We have heard the learned counsel for the parties and perused the case file carefully and have also gone through the evidence led by the parties.

8.             Learned counsel for the complainant, while reiterating the contents of complaint, has vehemently argued that complainant purchased one Apartment from the previous allottees Mrs. Roome Jain and Shri Vinod Jain. The total basic price was Rs.19,80,000/-. The first allottees had paid total amount of Rs.12,83,000/- after discount of Tovota Innova of Rs.9,90,000/-. As such he has paid total Rs.22,73,000/- against the aforesaid apartment to the first allottees and after that the agreement dated 26.03.2018 was executed in favour of the complainant. The possession of the said residential apartment was to be given to the complainant within the period of 42 months from the date of booking with grace period of six month but OPs have not completed the development work on the spot within stipulated period. Complainant approached the OPs several times and requested either to complete the construction work or to refund the amount deposited by him with interest but OPs did not pay any heed to the request of complainant.  The OPs are enjoying the hard earned money of the complainant from the date of its deposit. Learned counsel of complainant has placed reliance on the case law titled as Abhishek Khanna and others in Civil appeal no.5785 of 2019, date of decision 11.01.2021; Mr.Mridula Rajbanshi and another Vs. Umang Realtech (P) Ltd. 2021 SCej 1087 (NCDRC); Jose Mariano Corderio Versus M/s Kalash Real Estate Developers in First appeal no.12 of 2018, date of decision 01.02.2021; Deepak Goyal and another Versus M/s North Star Apartments Pvt. Ltd. and others, in consumer case no.871 of 2017, date of decision 28.09.2021 and Sunny Ahuja Versus Raheja Developers Ltd. in consumer case no.180 of 2020, date of decision 03.01.2022.

9.             Per contra, learned counsel for the OPs, while reiterating the contents of written version, has vehemently argued that the present complaint has been filed without impleading the co-sharer namely Mrs. Aishwarya Jain. Thus, the present complaint is maintainable before this Commission. The basic sale price of the flat in question is Rs.19,80,000/- out of which Rs.12,83,000/-was paid by the previous allottees. Delayed, if any, is on the part of the allottees because neither they had paid the EDC and IDC nor the Government has decided the amount of EDC and IDC. The matter with regard to EDC and IDC is still pending with the Government Department of Urban Local Bodies. The complainant has not paid a single penny to the OPs after purchasing the flat in question. The complainant is liable to make the remaining payment of Rs.6,97,000/- towards the Basic Sale Price and all other charges as per the opted payment plan and prayed for dismissal of the complaint.

10.           We have duly considered the rival contentions of the parties.

11.           Admittedly, complainant and his wife purchased an apartment from the first allottees namely Mrs. Roome Jain and Shri Vinod Jain. It is also admitted that first allottees had paid an amount of Rs.12,83,000/- to the OPs.  It is also admitted that Provisional Allotment Letter Ex.C1 dated 29.10.2013 was executed between the first allottees and OPs. It is also admitted that Apartment Buyer’s Agreement Ex.C4 dated 26.03.2018 was executed between the complainant, his wife Aishwarya Jain and OPs.

12.             OPs have alleged that the present complaint is not maintainable because the same has been filed by the complainant without impleading his wife Aishwarya Jain, who is necessary party. As per Apartment Buyer’s Agreement Ex.C4 dated 26.03.2018, the wife of complainant is co-allottee in the flat in question. Admittedly, present complaint has been filed by the complainant without impleaded his wife as a party, but during the course of evidence his wife Aishwarya Jain has submitted her affidavit Ex.CW2/A mentioning therein that the complainant is entitled to refund the aforesaid entire deposited amount alongwith interest. In the said affidavit she has not raised any objection with regard to filing the present complaint by her husband without impleading her as a party and with regard to release the amount in his favour. Complainant is an aggrieved person and out of aggrieved persons anyone can file the complaint. Hence, the plea taken by the OPs has no force.

13.           OPs purchased a plot of Group Housing measuring 1.46 acres from the OP no.3, who was the land owner of the land measuring 24.94 acres in village Phoosgarh, Tehsil and District Karnal. As per the project in question, had to be completed in a time bound manner, the OPs deposited the fees upto Rs.68.00 lacs in order to approve the building plan and OPs have paid this compounding fees of Rs.68.00 lacs as demanding by the competent authority in order to get the construction compounded and get the building plan approved.

14.           Complainant and other allottees have not deposited the EDC/IDC with the OP no.3 and for not deposition of the EDC/IDC with the competent authority, the competent committee has decided to withdraw the sanction granted to the scheme. It is a not a case of the complainant he has deposited the EDC/IDC with the OPs. Thus, due to cancellation of the scheme, the OPs could not complete the project in time.

15.           The complainant has alleged that the project was to be completed within 42 months from the date of booking with grace period of 6 months but OPs have neither completed the development work nor fulfilled all the terms and conditions of the agreement. Both the parties are bound with the terms and conditions of the  Provision Allotment Letter Ex.C1 dated 28.10.2013 and Apartment Buyer’s Agreement Ex.C4 dated 26.03.2018 but OPs have failed to complete the project within stipulated period. Hence, it is proved on record that OPs have not completed the construction work at the site within stipulated period. The complainant cannot be made to wait indefinitely for the delivery of the possession. In this regard, we relied upon the following case laws:- 

16.           In Abhishek Khanna’s case (supra) the Hon’ble Supreme Court held that delay in delivery of possession of apartment-Refund-Factum of delay in completing construction and making offer of possession is undisputed fact in this case-Court directed developer appellant to refund entire amount deposited by respondent buyers as categorized in two categories by Court. Further, in Mridula Rajbanshi’case (supra) the Hon’ble National Commission held that Builder-Allotment of flat-Complainants cannot be made to wait indefinitely for the delivery of possession and the act of the opposite party in relying on Force Majeure clause while retaining the amounts deposited by the complainants, is not only an act of Deficiency in Service but also of Unfair Trade Practice-Direct the Builder Co. to refund the entire principal amount received alongwith compensation in the form of simple interest @ 9% per annum from the date of deposit till the actual date of payment together with costs of Rs.50,000/- within a period of four weeks from today, failing which the amount shall carry interest @ 12% per annum till its realization. Further, in Jose Mariano Cordeiro’s case (supra) the Hon’ble National Commission held that Possession delayed-Housing Residential flat-opposite party, failed to deliver the possession of the flat within the stipulated period-Deficiency in service on the part of the OP-Since deficiency in service was established on the part of the Respondent/opposite party-sought interest and compensation-Scope-Held-If builder is found deficient in service is entitled to pay compensation during period of delay period-complainant entitled for compensation for delayed handing over of possession.  Further, in Deepak Goyal’s case (supra) the Hon’ble National Commission held that Delay in possession of flat-Unfair Trade Practice-Complaint before National Commission-under clause-8 (a) of Flat Buyer’s Agreement promised period for offer of possession was 36 months with grace period of 90 days from the date of execution of the FBA, subject to exception as given under clause 8 (b), 38, delay in approval of sanctioned plan and issue of Occupation Certificate-promised period for offer of possession expired in November, 2015-Bulding not taken any plea and offer of possession was delayed either for delay in sanction of layout plan or in issue of Occupancy Certificate-Possession notice was issued on 27.11.2018, with delay of three years-Held, allottee cannot be made to wait for indefinite period for possession complaint allowed with cost of Rs.one lakh-Direction to builder to refund amount Rs.66,58,319/- alongwith interest @ 9% per annum”.

17.           Keeping in view the ratio of the law laid down in the abovesaid judgments, facts and circumstances of the complaint, the act of the OPs by not completing the project within stipulated period amounts to deficiency in service and unfair trade practice.

18.           The complainant has alleged that he has deposited Rs.22,73,000/- with the OPs but he has placed on file payment receipts  Ex.C5 to Ex.C12 amounting to Rs.12,83,000/- only. The said amount has been paid by the previous allottees to the OPs. Complainant alongwith his wife purchased the flat in question vide Apartment Buyer’s Agreement Ex.C4 dated 26.03.2018. Neither prior to, at the time of execution of the Apartment Buyer’s Agreement Ex.C4 dated 26.03.2018, nor thereafter complainant and his co-allottee has paid a single penny to the OPs. If the complainant has paid more than Rs.12,83,000/- to the previous allottees for that OPs cannot be liable.

19.           The basic sale price of the flat in question is Rs.19,80,000/-. The complainant has purchased the right with regard to the flat from the previous allottees after paying the amount of Rs.12,83,000/- to them. The complainant has not made the payment of Rs.6,97,000/- towards the basic sale price and all other charges as per the opted payment plan. Neither complainant has deposited the remaining amount nor OPs have delivered the possession of the flat in question. Hence, both the parties are at fault. Thus, the complainant is entitled for refund of the deposited amount only, without any interest, compensation and litigation expenses.  

 20.          The wife of the complainant who is also allottee in the flat in question has tendered he affidavit with regard to refund the deposited amount in favour of complainant, even then for avoiding unnecessary litigations, it would be justified, if the awarded amount will be paid to both the allottees i.e. complainant and his wife Aishwarya Jain in equal shares. Hence order accordingly.

21.           In view of above discussion, we partly allow the present complaint and direct the OPs to refund the amount of Rs.12,83,000/- to the complainant and his wife Aishwarya Jain. This order shall be complied with within 45 days from the receipt of copy of this order. It is made clear if the awarded amount is not paid by the complainant within stipulated period then this amount will carry interest @ 9% per annum from the date of the order till its realization. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance

Announced

Dated:13.08.2024                                                                     

                                                             President,

                                                     District Consumer Disputes

                                                     Redressal Commission, Karnal.

 

                     (Sarvjeet Kaur)

                          Member