ORDERS:
Nidhi Verma, Member;
1 The complainant has filed the present complaint under Section 35, 36, 38 and 39 of the Consumer Protection Act (herein after called as 'the Act') against the opposite party by alleging that the opposite party Aegis Value Home Limited is a real estate and construction Company claiming itself to be one of the most progressive and multi-faceted real estate and construction entities in the country during past two decades. The opposite party -promoter claims to be committed to `building a better world' by transforming barren tracts into landscaped green belts housing world class commercial, residential and recreational properties using state-of-the-art technology and global architectural, construction and business practices. Around the year 2013, the complainant came across luring and boastful representations by the opposite party claiming itself to be renowned Developers. Based on the representations of the officials/ agents of the opposite parties inter-alia about its sound financial base and vast experience/ expertise in delivering time bound projects, the complainant was convinced to invest in its project by getting booked a residential flat/ apartment with a super area of 700 square feet approximately, in the project owned and developed by the opposite party- promoter under the name and style of “Aegis Wods” situated in Karnal for a total price consideration of Rs. 15,60,000/-. Importantly, besides the amenities to be offered in the project, the opposite party developer had extended express assurances with respect to the delivery of possession in as much as the instant project was assured to be completed within the time span of 42 months from the date of booking. The opposite party assured that the colony to be developed is located on the breach taking location and is an ideal place to live. Upon the aforesaid representations/ assurances, complainant was made to deposit booking amount and other installments/ incidental charges as per the payment plan of the opposite party. However, the formal allotment letter and flat Buyer Agreement was eventually executed on 15.3.2014 notarised on 20.3.2014 after a lapse of nearly 3 months from the date of booking which delay was sought to be justified attributing it to initial procedural complicacies/ formalities. As per the terms and conditions of the Flat Buyers Agreement dated 15.03.2014 and notarized on 20.03-2014, the opposite party was obliged to hand over the possession of the aforesaid flat/apartment to the complainant within a period of 42 months from the date of signing of Flat Buyer Agreement. The complainant has sufficiently complied with the obligations on his part and has already paid significant amount from time to time and till date over a sum of Rs. 8,47,033/- stands deposited towards the total price. As per the payment schedule of the agreement, the installments were required to be paid on a construction linked plan. The construction link plan has been drawn in such a manner that the developer was required to complete proportionate development of flat as well the site i.e. other common facilities before raising demand of various installments. However, in the instant case the developer has even failed to start the construction process or to undertake any development activities as provided under in the agreement. The complainant had approached the office of opposite party on various occasions, to ascertain the status of the project and delivery of the possession of the flat/apartment, however, no satisfactory response has come so far. Further, it is also worthwhile to mention herein that the possession of the flat cannot be delivered to the complainant by the opposite parties even after two years from today and thereby, rendering the agreement unenforceable on their behalf and requiring them to refund the amount already paid by the complainant alongwith 24% interest per annum. The complainant has got ascertained the actual position of the project by ensuring spot inspection of the project site and was taken aback to realize that the assurances being extended by opposite party are wholly false, misleading, vague and misconceived as no construction till date has been constructed so far needless to add that the rest of the project work including the common facilities as highlighted in the layout/site plan projected to the flat buyers has not yet commenced, as such, the project is not likely to be completed within near future. The complainant personally visited the spot location in the month of March 2018 and took the photographs of the project of the O.P from where the commission may clearly see even in the month of March 2018 the O.P could not able to build structure of their project. So the O.P has clearly breached the term of the agreement of delivery of possession within period of 42 months from the date of sighing of the buyer purchase agreement dated 15.3.2014 and notarized on 20.3.2014. Evidently, the respondent-developer failed to live up to the lofty representations made with respect to its capability and competency to deliver time bound projects and despite having been approached on several occasions and lapse of considerable period, the projects did not shape up in the manner proposed. It was specifically provided in clause No.14 of the Provisional Allotment Letter that the possession of the said flat was to be handed over to the allottee within a period of 42 Months from the date of signing of the Buyer purchase agreement i.e. 20.03.2014, meaning thereby the possession was to be delivered on or before 20.09.2017. Needless to mention herein that the possession of the flat has not been offered to the complainant so far thus, the action of the OPs is totally contrary to the terms and conditions as contemplated in the Buyer Purchase Agreement. The complainant was assured at the time of booking that the time was the essence of contract and the opposite party would stick to its promise of delivery of the flat within 42 Months from the date of execution of the agreement and will give timely updates about the progress of the development on site. However, the OPs have failed to adherence on these promises and neither any update on the development site was provided nor possession of the flat has been offered till date. The complainant has made many inquiries from OPs site office at Karnal but the officials of the opposite party only informed that the work will gain momentum sooner and could not pick up due to some complications. Till date no construction work has been started at site and OPs have failed to deliver the possession in 2017 as promised and the complainant is being misled by the opposite parties throughout. From the above sequence of events, it is clearly evident that the hard earned money of the complainant has been siphoned off by making false, misleading and lofty misrepresentations and in fact the respondent- developer did not ever intended to develop and construct the project as projected by them. It is evident that the sole agenda of the respondent- developer was to make money by making false promises and boastful representations to innocent buyers like the complainant and to rip them of their life-long savings. The complainant has paid the regular agreed installments at the appropriate time and stage but the O.P failed to fulfill their part of the contract for delivering the possession of the flat within period of 42 months for the buyer purchase agreement. The undue and unjustified delay has resulted into huge financial loss, unwarranted harassment and mental agony to the complainant and amounts to gross deficiency in service and unfair trade practice rendering the respondent-developer liable for civil as well as penal consequences. The act and conduct of the respondent-developer and its officials in cajoling the innocent customers by making boastful representations and assurances as regards the capacity and expertise of the respondent-promoter in delivering time bound project, to fleece their hard-earned money is not only unfair trade practice/mal-practice rather the same amounts to playing fraud upon them and the act and conduct clearly suggests that the respondent- developer never intended to develop the project in question within the projected timelines from the very beginning. Surprisingly, the respondent-developer has also illegally retained amounts deposited by the complainant despite clear and categorical demand for refund of the said amount with interest having been duly notified to the respondent-developer and are misusing their dominant position. The complainant has been facing tremendous financial pressure on account of the financial liabilities taken in the shape of some friendly loans besides squeezing its own resources, without any return on account of failure of the respondent-developer to ensure timely delivery of the flats/units in question. Since the respondent-developer has failed to develop the project and hand over the actual physical possession of the flats in question, to the complainant in the assured manner and within promised time lines, therefore, the complainant is entitled to receive refund of all the amounts paid by it to the respondents-developer along-with interest at the same rate as was being proposed to be charged by the respondent-developer i.e. @ 24% per annum from the date of their respective payments. The complainant had intention to shift his residence in the proposed slap which the complainant was buying from the O.P but due to the negligence, inefficiency and breach of the terms of the agreement of delivering the possession of the property of appropriate time the future planning concerning the shifting of the complainant has been ruled due to the act and conduct of the O.P. The complainant has invested its hard earned money in the project based on the assurances made on behalf of the respondent-promoter, however, the respondent-promoter has not been able to complete the project even after lapse of nearly 6 years from the date it got licensed to develop the project. Further, the assured time of handing over the actual physical possession of the flats/units in question as assured at the time of booking was over in year 2017 and even thereafter a period of more than 3 years have passed and the project is not even 10% complete as on today. Even though the complainant has made considerable amount of payment as demanded by the respondent- developer and has virtually paid the entire consideration money except nominal amount which was to be paid at the time of delivery of possession but still the respondent-promoter has failed to give possession with in the promised period of 42 months. The respondent-developer has thus, not only committed breach of agreed conditions but has also violated the provisions as enshrined under the Real Estate (Regulation and Development) Act, 2016. The complainant has thus, been completely deceived and defrauded and has already withdrawn from the project and is thus entitled to the refund of its entire investment alongwith interest @ 24% per annum and suitable compensation which can actually compensate the loss sustained by it over these years. The opposite party/ promoter has failed to abide by the agreed time lines and has failed to develop the scheme/ project under reference as assured and has failed to handover the actual physical possession of the flat/ unit in question within the promised period of 42 months. The opposite party- promoter has failed to refund the entire amount paid by the complainant alongwith interest despite demand and withdrawal from the project in 2018. The opposite party has sent the cancellation letter in the month of April 2018 and since 2014 till 2017-18 continuously received the installment of payments as per the agreement and prayed the following reliefs:-
To compensate the complainant for the delay in the project and refund the entire amount of Rs. 8,47,033/- alongwith interest @24% per annum from the date of respective payments.
- To pay compensation of Rs. 5,00,000/- on account of harassment, mental agony and undue hardship caused to the complainant on account of unfair practices, deficiency in service and fraudulent misrepresentations.
- To pay a sum of Rs. 50,000/- towards the costs of litigation expenses.
Alongwith the complaint, the complainant has placed ion record affidavit of complainant Pawan Kumar Ex. C-1, letter of provisional allotment, include payment plan, location plan Ex. C-2, intimation letter dated 14 Jan 2015 Ex. C-3, Reminder letter dated 7 April 2015 Ex. C-4, Payment demand letter dated 20.5.2015 Ex. C-5, Acknowledgement receipt dated 28 December 2013 receipt No. 00201 Ex. C-6, Acknowledgement receipt No. 00265 dated 15 Feb 2014 Ex. C-7, Acknowledgement receipt No. 00267 dated 15 Feb 2014 Ex. C-8, Acknowledgement receipt No. 00267 dated 15 Feb 2014 Ex. C-9, Receipt dated 18.4.2015 Ex. C-10, Payment demand letter dated 24 December 2016 Ex. C-11, Payment reminder letter dated 8 Feb 2017 Ex. C12, receipt information 8 July 2015 Ex. C-13, Payment demand letter dated 25 July 2017 Ex. C-14, Payment demand letter dated 6.3.2017 Ex. C-15, Receipt dated 26.12.2016 Ex. C-16, Payment reminder letter dated 16 Feb 2018 Ex. C-17, Payment reminder letter dated 25.1.2018 Ex. C-18, Payment demand letter dated 26.10.2017 Ex. C-19, Cancellation dated 6.4.2018 Ex. C-20, Photographs Ex. C-21 to C-30.
2 Notice of this complaint was sent to the opposite party but no one appeared on behalf of opposite party and consequently, the opposite party was proceeded against exparte.
3 We have heard the Ld. counsel for complainant and have also carefully gone through the evidence and documents on the file.
4 The complainant has produced on record his affidavit Ex. C-1 and declared that the opposite party Aegis Value Home Limited is a real estate and construction Company claiming itself to be one of the most progressive and multi-faceted real estate and construction entities in the country during past two decades. The opposite party -promoter claims to be committed to `building a better world' by transforming barren tracts into landscaped green belts housing world class commercial, residential and recreational properties using state-of-the-art technology and global architectural, construction and business practices. Around the year 2013, the complainant came across luring and boastful representations by the opposite party claiming itself to be renowned Developers. Based on the representations of the officials/ agents of the opposite parties inter-alia about its sound financial base and vast experience/ expertise in delivering time bound projects, the complainant was convinced to invest in its project by getting booked a residential flat/ apartment with a super area of 700 square feet approximately, in the project owned and developed by the opposite party- promoter under the name and style of “Aegis Wods” situated in Karnal for a total price consideration of Rs. 15,60,000/-. He also declared that importantly, besides the amenities to be offered in the project, the opposite party developer had extended express assurances with respect to the delivery of possession in as much as the instant project was assured to be completed within the time span of 42 months from the date of booking. The opposite party assured that the colony to be developed is located on the breach taking location and is an ideal place to live. Upon the aforesaid representations/ assurances, complainant was made to deposit booking amount and other installments/ incidental charges as per the payment plan of the opposite party. He also declared that the formal allotment letter and flat Buyer Agreement was eventually executed on 15.3.2014 notarised on 20.3.2014 after a lapse of nearly 3 months from the date of booking which delay was sought to be justified attributing it to initial procedural complicacies/ formalities. As per the terms and conditions of the Flat Buyers Agreement dated 15.03.2014 and notarized on 20.03-2014, the opposite party was obliged to hand over the possession of the aforesaid flat/apartment to the complainant within a period of 42 months from the date of signing of Flat Buyer Agreement. The complainant has sufficiently complied with the obligations on his part and has already paid significant amount from time to time and till date over a sum of Rs. 8,47,033/- stands deposited towards the total price. As per the payment schedule of the agreement, the installments were required to be paid on a construction linked plan. He also declared that the construction link plan has been drawn in such a manner that the developer was required to complete proportionate development of flat as well the site i.e. other common facilities before raising demand of various installments. However, in the instant case the developer has even failed to start the construction process or to undertake any development activities as provided under in the agreement. The complainant had approached the office of opposite party on various occasions, to ascertain the status of the project and delivery of the possession of the flat/apartment, however, no satisfactory response has come so far. He also declared that the possession of the flat cannot be delivered to the complainant by the opposite parties even after two years from today and thereby, rendering the agreement unenforceable on their behalf and requiring them to refund the amount already paid by the complainant alongwith 24% interest per annum. The complainant has got ascertained the actual position of the project by ensuring spot inspection of the project site and was taken aback to realize that the assurances being extended by opposite party are wholly false, misleading, vague and misconceived as no construction till date has been constructed so far needless to add that the rest of the project work including the common facilities as highlighted in the layout/site plan projected to the flat buyers has not yet commenced, as such, the project is not likely to be completed within near future. He also declared that the complainant personally visited the spot location in the month of March 2018 and took the photographs of the project of the O.P from where the commission may clearly see even in the month of March 2018 the O.P could not able to build structure of their project. So the O.P has clearly breached the term of the agreement of delivery of possession within period of 42 months from the date of sighing of the buyer purchase agreement dated 15.3.2014 and notarized on 20.3.2014. Evidently, the respondent-developer failed to live up to the lofty representations made with respect to its capability and competency to deliver time bound projects and despite having been approached on several occasions and lapse of considerable period, the projects did not shape up in the manner proposed. It was specifically provided in clause No.14 of the Provisional Allotment Letter that the possession of the said flat was to be handed over to the allottee within a period of 42 Months from the date of signing of the Buyer purchase agreement i.e. 20.03.2014, meaning thereby the possession was to be delivered on or before 20.09.2017. Needless to mention herein that the possession of the flat has not been offered to the complainant so far thus, the action of the OPs is totally contrary to the terms and conditions as contemplated in the Buyer Purchase Agreement. The complainant was assured at the time of booking that the time was the essence of contract and the opposite party would stick to its promise of delivery of the flat within 42 Months from the date of execution of the agreement and will give timely updates about the progress of the development on site. He also declared that the OPs have failed to adherence on these promises and neither any update on the development site was provided nor possession of the flat has been offered till date. The complainant has made many inquiries from OPs site office at Karnal but the officials of the opposite party only informed that the work will gain momentum sooner and could not pick up due to some complications. Till date no construction work has been started at site and OPs have failed to deliver the possession in 2017 as promised and the complainant is being misled by the opposite parties throughout. From the above sequence of events, it is clearly evident that the hard earned money of the complainant has been siphoned off by making false, misleading and lofty misrepresentations and in fact the respondent- developer did not ever intended to develop and construct the project as projected by them. It is evident that the sole agenda of the respondent- developer was to make money by making false promises and boastful representations to innocent buyers like the complainant and to rip them of their life-long savings. The complainant has paid the regular agreed installments at the appropriate time and stage but the O.P failed to fulfill their part of the contract for delivering the possession of the flat within period of 42 months for the buyer purchase agreement. The undue and unjustified delay has resulted into huge financial loss, unwarranted harassment and mental agony to the complainant and amounts to gross deficiency in service and unfair trade practice rendering the respondent-developer liable for civil as well as penal consequences. The act and conduct of the respondent-developer and its officials in cajoling the innocent customers by making boastful representations and assurances as regards the capacity and expertise of the respondent-promoter in delivering time bound project, to fleece their hard-earned money is not only unfair trade practice/mal-practice rather the same amounts to playing fraud upon them and the act and conduct clearly suggests that the respondent- developer never intended to develop the project in question within the projected timelines from the very beginning. Surprisingly, the respondent-developer has also illegally retained amounts deposited by the complainant despite clear and categorical demand for refund of the said amount with interest having been duly notified to the respondent-developer and are misusing their dominant position. He declare that the complainant has been facing tremendous financial pressure on account of the financial liabilities taken in the shape of some friendly loans besides squeezing its own resources, without any return on account of failure of the respondent-developer to ensure timely delivery of the flats/units in question. Since the respondent-developer has failed to develop the project and hand over the actual physical possession of the flats in question, to the complainant in the assured manner and within promised time lines, therefore, the complainant is entitled to receive refund of all the amounts paid by it to the respondents-developer along-with interest at the same rate as was being proposed to be charged by the respondent-developer i.e. @ 24% per annum from the date of their respective payments. The complainant had intention to shift his residence in the proposed slap which the complainant was buying from the O.P but due to the negligence, inefficiency and breach of the terms of the agreement of delivering the possession of the property of appropriate time the future planning concerning the shifting of the complainant has been ruled due to the act and conduct of the O.P. The complainant has invested its hard earned money in the project based on the assurances made on behalf of the respondent-promoter, however, the respondent-promoter has not been able to complete the project even after lapse of nearly 6 years from the date it got licensed to develop the project. Further, the assured time of handing over the actual physical possession of the flats/units in question as assured at the time of booking was over in year 2017 and even thereafter a period of more than 3 years have passed and the project is not even 10% complete as on today. He declared that even though the complainant has made considerable amount of payment as demanded by the respondent- developer and has virtually paid the entire consideration money except nominal amount which was to be paid at the time of delivery of possession but still the respondent-promoter has failed to give possession with in the promised period of 42 months. The respondent-developer has thus, not only committed breach of agreed conditions but has also violated the provisions as enshrined under the Real Estate (Regulation and Development) Act, 2016. The complainant has thus, been completely deceived and defrauded and has already withdrawn from the project and is thus entitled to the refund of its entire investment alongwith interest @ 24% per annum and suitable compensation which can actually compensate the loss sustained by it over these years. The opposite party/ promoter has failed to abide by the agreed time lines and has failed to develop the scheme/ project under reference as assured and has failed to handover the actual physical possession of the flat/ unit in question within the promised period of 42 months. The opposite party- promoter has failed to refund the entire amount paid by the complainant alongwith interest despite demand and withdrawal from the project in 2018. The opposite party has sent the cancellation letter in the month of April 2018 and since 2014 till 2017-18 continuously received the installment of payments as per the agreement and prayed that the present complaint may be allowed.
5 The evidence led by the complainant on the file goes unchallenged and unrebutted as Opposite party is proceeded against exparte in the present complaint and there is no reason on the file as to why the evidence produced by the complainant be not believed. Otherwise also, due notice was issued to the Opposite Party and opposite party did not appear in this Commission in order to contest the complaint which shows that the Opposite Party has nothing to say upon the allegations leveled against them by the complainant. As such, the complainant is entitled to the relief claimed in the complaint and it stands established on record that the complainant is approaching the opposite party several times but the opposite party did not care to resolve the matter, not only committed deficiency in service, but also indulged in an unfair trade practice.
6 In light of the above discussion, the complaint succeeds and the same is hereby allowed with costs in favour of the complainant and against the Opposite Party. The opposite party is directed to return Rs. 8,47,033/- to the complainant. The complainant has been harassed by the opposite party for a long time, therefore, the complainant is entitled to Rs. 60,000/- as compensation on account of harassment and mental agony and Rs 15,000/- as litigation expenses. Opposite Parties are directed to comply with the order within one month from the date of receipt of copy of the order, failing which the complainant is entitled to interest @ 9% per annum, on the awarded amount, from the date of filing instant complaint till its realisation. Copies of the order be furnished to the parties as per rules. File is ordered to be consigned to the record room.
Announced in Open Commission
15.06.2023
