Haryana

Karnal

CC/456/2021

Krishan Sharma - Complainant(s)

Versus

Aegis Value Homes Limited - Opp.Party(s)

Karam Vir Singh

17 May 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                        Complaint No. 456 of 2021

                                                        Date of instt.08.09.2021

                                                        Date of Decision:17.05.2024

 

1. Krishan Sharma son of Shri Hemant Sharma, Aadhar no.9201 2490 6997.
2. Smt. Manju Sharma wife of Shri Hemant Sharma, Aadhar no.7610 7369 4220.

Both residents of House no.914, New Housing Board Colony, Sector-13, Karnal.

                                                                        …….Complainants.

                                              Versus

 

1. Aegis Value Home Ltd., Registered office at EF-10, 2^nd floor, Inderpuri, Delhi-110012 through its Directors.
2. Aegis Value Home Ltd., Smart Homes, Sector-32, Karnal through its Directors.
3. Divey Dhamija, Director of Aegis Value Homes Ltd. Smart Homes, Sector-32, Karnal.
4. The Municipal Corporation, Karnal through its Executive Officer.
5. District Town Planner, Karnal, HUDA Complex, Sector-12, Karnal.

 

                                                                …..Opposite Parties.

 

Complaint under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President.       

      Sh. Vineet Kaushik…….Member

      Dr.  Suman Singh…..Member

 

 Argued by: Shri Karamvir Singh, counsel for the complainants.

                    Shri  Pawan Sharma, counsel for the OPs no.1 to 3.

                    Shri Rajbir Sharma, counsel for the OP no.4.

                    OP no.5 exparte (Vide order dated 09.02.2024).

 

                     (Jaswant Singh, President)

ORDER:   

                

                The complainants have 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 complainants had booked a residential apartment in the Affordable Group Housing Colony ‘Ananda” situated in Phase-1, Scheme, Sector-32, near Noor Mahal, Karnal with the OPs no.1 to 3. An amount of Rs.87,253/- was deposited vide cheque no.426955 dated 04.02.2015 of PNB alongwith the application. Thereafter, OPs no.1 to 3 asked for transfer of booking from ‘Ananda’ Sector 32-A to ‘Ananda’ Phase-1, Sector-32, Karnal to which the complainants agreed. OPs no.1 to 3 informed the complainants that the draw of Ananda’ Phase-1, was being conducted on 27.06.2015 at Siri Fort Auditorium-1, Gautam Nagar, New Delhi.  OPs no.1 to 3 vide its letter dated 29.06.2015 informed that the complainants were got selected in draw for residential apartment in Ananda Phase-1, Sector-32, Karnal. OPs no.1 to 3 also informed that as per terms of application, 10% of the Basic Sales price had to be paid at the time of draw and rest 10% of BSP have to be paid “to complete 25% of booking amount” within 15 days of draw to get allotment letter. On the assurance of OPs no.1 to 3, complainants booked a flat for a sum of Rs.17,45,053/- the basic sale price. The complainants have deposited a total sum of Rs.6,78,117/- with the OPs no.1 to 3.

2.             It is further submitted that it has been mentioned in clause no.9 of the letter of Provisional Allotment letter that the Developer shall handover possession of the Apartment to the provisional allottee within 48 months from the date of draw i.e. 27^th June, 2015+6 months grace period, otherwise company will pay penalty of Rs.20/- per sq. ft. per month to provisional allottees. The OPs no.1 to 3 sent no intimation/response to the complainants neither made any correspondence after 24.12.2016 for giving possession of the apartment alongwith the stipulated time mentioned in the provisional allotment letter has already been elapsed. Complainants were very excited with the construction of apartments which was to be completed by the OPs no.1 to 3 within 48 months from the date of draw i.e. 27.06.2015 + 6 months grace period. Complainants visited the site but they could not see the progress of the construction. After waiting sufficient time, complainants visited the office of OPs no.1 to 3 time and again at Karnal for enquiring about the development and construction of apartments on the spot but official of the OPs did not give any satisfactory reply. Thereafter, complainants visited the office of OPs no.1 to 3 several times and requested to refund their deposited money of Rs.6,78,117/- with interest @ 24% per annum but OPs always postponed the matter on one pretext or the other. In this way there is deficiency in service and unfair trade practice on the part of the OPs. Hence this complaint.

3.             On notice, OPs  no.1 to 3 appeared and filed its written version raising preliminary objections with regard to maintainability; cause of action; locus standi; concealment of true and material facts; the present complaint is pre-mature one because the target date of delivering the possession to the allottees is October, 2021 plus six months of Covid-19 as per directions issued by Haryana Real Estate Regulatory, Panchkula, from the date of registration no.265 dated 09.10.2017 and complainants do not come under the definition of consumer as the complainants should have file the complaint before the Haryana Real Estate Regulatory Authority (HRERA) Sector-6, Panchkula as specific Board has been constituted by the Government to decide the disputes with respect to the societies, real estate etc. On merits, it is pleaded that there is clause 9 in Provisional Allotment letter that OPs are bound to deliver the possession in 4 years + 6 months grace period. There is clause in same provisional allotment letter at page 2 a & b of Developer’s representation, it is clearly mentioned that the Developer has already acquired land subject to all approvals granted by the competent authority(ies) shall be deemed as part of proposed colony known as Ananda Phase 1 scheme which was lateron changed as Smart Home Housing Project and further developer has specifically made it clear that the building plan of the complex have not yet been approved by the authorities but likely to be approved and obtaining such approval may take sometimes. After obtaining the registration certificate no.265 dated 09.10.2017 and license no.2 of 2016 regarding the project, the OPs started the construction of flats without any delay and the OPs are bound to deliver the possession to the complainants after clearing the balance amount on target date. It is further pleaded that the construction work of the flats is completed almost and the complainants can visit the spot at any time to see the progress of construction. The OPs will hand over the possession of the flat to the complainants on the target date. The target date of delivery the possession of flat is October, 2021 +6 months of Covid-19 i.e. March, 2022 from the date of getting the registration certificate for construction. Without getting the registration certificate no construction company can start the construction work. There is no deficiency in service and unfair trade practice on the part of the OPs.  The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

4.             OP no.4 filed its separate written version raising preliminary objections with regard to maintainability; cause of action; jurisdiction and concealment of true and material facts. On merits, it is pleaded that complainants are having dispute with the OPs no.1 to 3 and there is no dispute with the OP no.4 but he has unnecessarily been arrayed as party in this complaint, hence the name of the OP no.4 deserves to be struck off from the array of the OPs. There is no deficiency in service and unfair trade practice on the part of the OP. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint qua OP no.4.

 5.            OP no.5 filed its separate written version raising preliminary objections with regard to maintainability; locus standi; cause of action; jurisdiction and concealment of true and material facts. On merits, it is pleaded that the issue raised in the complaint is a bilateral issue which requires to be settled as per the plot buyer agreement executed between the plot holder and the licensee company. Director General, Town and Country Planning is not empowered through the statute to function as an arbitrator between both the parties. The Haryana Development and Regulation of Urban areas Act, 1975 and rules made there under do not allow the Director General, Town and Country Planning to arbitrate such bilateral issue. It is further pleaded that there is no relationship of any kind between the complainants and the OP no.5, and OP no.5 is not the service provider to the complainants.  The dispute is between the complainants and the OPs no.1 to 3 and prayed for dismissal of the complaint qua OP no.5.

6.             Parties then led their respective evidence.

7.             Learned counsel for the complainants has tendered into evidence affidavit of complainant Krishan Sharma Ex.CW1/A, copy of Provisional allotment letter dated 11.12.2015 Ex.C1, copy of cheque dated 24.12.2016 of Rs.2,41,852/- Ex.C2, copy of layout plan Ex.C3, photographs of site Ex.C4 to Ex.C6 and closed the evidence on 25.05.2023 by suffering separate statement.

8.             Learned counsel for the OPs no.1 to3  has tendered into evidence affidavit of Sandeep Sharma, Sales Manager Ex. OP1/A, copy of provisional allotment letter dated 11.12.2015 Ex.OP1, copy of transfer application Ex.OP2, copy of licence no.2 of 2016 Ex.OP3, copy of renewal of licence till 04.03.2024 Ex.OP4, copy of order Ex.OP5,  copy of registration certificate Ex.OP6, copy of extension of requisition certificate till 23.07.2023 Ex.OP7, copy of payment reminders Ex.OP8 and Ex.OP9, photographs of site Ex.OP10 and closed the evidence on 09.02.2024 by suffering separate statement.

9.             Learned counsel for the OP no.4 on 15.11.2023 has suffered a statement to the effect that written statement filed by OP no.4 be read as part and parcel of evidence.

10.           On 09.02.2024, neither anyone appeared and nor tendered the evidence on behalf of OP no.5, after availing several opportunities, hence OP no.5 was proceeded against exparte.

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

12.           Learned counsel for complainants, while reiterating the contents of the complaint, has vehemently argued that complainants  booked an Apartment in the project of the OPs. The complainants had paid a sum of Rs.6,78,117/- till 24.12.2016.  As per provisional allotment letter, builder was bound to complete the development work within 48 months from the date of draw plus six months grace period, but OPs have not completed the development work and construction of flat on the spot within stipulated period. Complainants approached the OPs several times and requested either to complete the construction work or to refund the amount deposited by them with interest but OPs did not do so. The OPs are enjoying the hard earned money of the complainants for many years and lastly prayed for allowing the complaint. Learned counsel of complainants has placed reliance on the case law titled as M/s Pyaridevi Chabiraj Steel Pvt. Ltd. Versus National Insurance Company Ltd. and 3 Ors. in Consumer Case no.833 of 2020 decided on 28.08.2020; 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.

13.           Per contra, learned counsel for OPs no.1 to 3, while reiterating the contents of written version, has vehemently argued that the present complaint is premature. He further argued that this Commission has no jurisdiction to try and decide the present complaint as complainants do not come under the definition of consumer as the complainants should have file the complaint before the HRERA as specific Board has been constituted by the Government to decide the disputes with respect to the societies, real estate etc.  He further argued that after obtaining the registration certificate on 09.10.2017 regarding the project, the OPs started the construction of flats and the OPs are bound to deliver the possession to the complainants after clearing the balance amount. He further argued that the construction work of the flats is likely to be completed. The OPs were ready to hand over the possession of the flat to the complainants on the target date i.e. October, 2021 +6 months but due to covid-19 construction work could not be completed within stipulated period. There is no delay on the part of the OPs and lastly prayed for dismissal of the complaint.

14.           Learned counsel for the OP no.4, while reiterating the contents of written version, has vehemently argued that complainants are having dispute with the OPs no.1 to 3 and there is no dispute with the OP no.4 but he has unnecessarily been arrayed as party in this complaint, hence the name of the OP no.4 deserves to be struck off from the array of the OPs and prayed for dismissal of the complaint qua OP no.4.

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

16.           Admittedly, complainants booked a flat in the project of the OPs no.1 to 3. It is also admitted that a provisional allotment letter dated 11.12.2015 was executed between the parties. It is also admitted that complainants deposited an amount of Rs.6,78,117/- with the concerned OPs. It is also admitted that as per clause 9 of the provisional allotment letter, the possession of the unit in question was to be handed over within 48 months plus six months grace period from the date of draw i.e. 27.06.2015.

17.             The OPs have alleged that complainants do not fall under the definition of consumer, as the complainants should have filed the complaint before the HRERA as specific Board has been constituted by the Government to decide the disputes with respect to the societies, real estate etc. It is a settled proposition of law, that complaint under Consumer Protection Act, being an additional remedy. In this regard, we place reliance on the case titled as Imperial Structures Limited Vs. Surinder Anil Patni and Another in Civil Appeal no.3581-3590 of 2020 decided on 02.11.2020 wherein Hon’ble Supreme Court held that “the Homebuyers are ‘consumer’ as per the Consumer Protection Act and the availability of an alternative remedy under RERA would not bar them from initiating a complaint under Consumer Protection Act. Hon’ble Supreme Court further held that “the homebuyers are at liberty to approach Consumer Forum for claiming compensation in cases where the payment has been made but the developer is either delaying or denying the possession of the flats. The homebuyers can approach the Consumer Forum once the promised date of delivery of possession has expired as per the agreement between the homebuyers and developers”.

                Further, similar view was taken by the Hon’ble Supreme Court in latest judgment case titled as Experion Developers Pvt. Ltd. Versus Sushma Ashok Shiroor in civil appeal no.6044,7149 of 2019, decided on 07.04.2022 wherein Hon’ble Supreme Court held that the “Consumer Protection Act and the RERA Act neither exclude nor contradict each other. Infact, this Court has held that they are concurrent remedies, operating independently and without primary”.

18.           Hence, keeping in view the law laid down in the above judgment and facts and circumstances of the case, the present complaint is maintainable before this Commission. Hence, the plea taken by the OPs has no force.

19.           OPs have alleged that present complaint is premature. The development work was to be completed/handing over of physical possession in October, 2021 plus six months of Covid-19 and the complainants has filed the present complaint in September, 2021. Hence the same is premature.

20.           As per clause 9 of the Provisional Allotment Letter Ex.C1/OP1 dated 11.12.2015, the project was to be completed within 48 months plus six months grace period from the date of draw i.e. till 27.12.2019 but OPs have neither completed the development work nor fulfilled all the terms and conditions of the agreement. The clause 9 of the Provisional Allotment Letter is reproduced as under:-

“The Developer shall make all possible endeavour to handover possession of the Apartment to the Provisional allottee within a reasonable time, may be within 48 months from the date of draw i.e. 27^th June, 2015 + 6 months grace period, otherwise company will pay penalty of Rs.20 per sq. ft. per month to provisional allottee.

Both the parties are bound with the terms and conditions of the Provisional Allotment Letter and as per clause 9 Provisional Allotment Letter, the project must be completed within 48 months from the date of draw i.e. 27.06.2015 but OPs have failed to complete the project within stipulated period.

22.           Moreover, to prove her version, complainants have relied upon the photographs Ex.C4 to Ex.C6. On perusal of the said photographs, it appears that development work has not been completed at the site and construction work is only completed to the extent of pillars level. In the said photographs the ditches are clearly shown. On the other hand,  OPs have also placed on file photographs of the site as Ex.OP10, on perusal the said photographs, it is also proved that OPs have not completed the construction work in all respects. Furthermore, OPs in their written version themselves admitted that the construction work of the flats is almost completed. Meaning, thereby, development work is not completed at the site in all respects till date. Hence, it is proved on record that OPs have not completed the construction work at the site within stipulated period. Complainants cannot be made to wait indefinitely for the delivery of the possession. In this regard we are relying upon the following authorities:-

23.           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”.

24.           Keeping in view the ratio of the law laid down in the abovesaid judgments, facts and circumstances of the complaint, we are of the considered view that act of the OPs no.1 to 3 by not completing the project within stipulated period amounts to deficiency in service and unfair trade practice. Thus, the complainants are entitled for refund of the deposited amount alongwith interest, compensation on account of mental agony and harassment and litigation expenses, etc.

25.           Thus, as a sequel to abovesaid discussion, we allow the present complaint and direct the OPs no.1 to 3 to refund the amount of Rs.6,78,117/- (Rs. six lakhs seventy eight thousand one hundred seventeen only) with interest @ 9% per annum from the date of deposit till its realization to the complainants. We further direct the OPs to pay Rs.50,000/- to the complainants on account of mental agony and harassment and Rs.11,000/- towards the litigation expenses. However, complaint against the OPs no.4 and 5 stands dismissed. This order shall be complied with within 45 days from the receipt of copy of this order. It is made clear if the abovesaid amount is not paid within stipulated period then this amount will carry interest @ 12% per annum.  The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:17.05.2024                                     

                                                        President,

                                                   District Consumer Disputes

                                                   Redressal Commission, Karnal.

       

                (Vineet Kaushik)           (Dr. Suman Singh) 

                      Member                        Member