Haryana

StateCommission

CC/455/2017

OM PARKASH - Complainant(s)

Versus

AVALON GROUM - Opp.Party(s)

JIGYASA TANWAR

30 Aug 2022

ORDER

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

                                                Consumer Complaint  No.455 of  2017

Date of the Institution:31.07.2017

Date of Final Hearing:  30.08.2022

Date of Pronouncement: 20.11.2022

 

Om Parkash S/o  Sh.Ram Chander R/o D-1/69, Janakpuri, New Delhi.

 

                                                                   .….Complainant

Versus

1. M/s Avalon Group, 9^th Floor, SAS Tower, Near Medcity, Sector-38, Gurgaon, 122001, Haryana.
2. The Managing Director, Sh.Ajay Singhal 9^th Floor, SAS Tower, Near Medcity, Sector-38, Gurgaon, 122001, Haryana.
3. The Co-Managing Director Ajay Aggarwal, 9^th Floor, SAS Tower, Near Medcity, Sector-38, Gurgaon, 122001, Haryana.

                                                          .….Opposite Parties

 

CORAM:   S.P.Sood, Judicial Member

                   Suresh Chander Kaushik, Member

 

Present:-    Ms.Jigyasa Tanwar, Advocate for the complainant.

Mr.Himanshu Monga proxy counsel for Mr.Hemant Saini, Advocate for the Opposite Parties.

 

O R D E R

S P SOOD, JUDICIAL MEMBER:

 

          The brief facts giving rise for the disposal of the present complaint  are that  son of the complainant Mr. Kumardeep Gupta has submitted an application form dated Nil for booking of flat No.702, Tower A-5 in opposite party’s project namely “Rangoli”, in Dharuhera, Distt. Rewari of M/s Avalon Group. An amount of Rs.5,55,656/- was paid by the original allottee.  Allotment letter dated 21.06.2012 was issued by OPs.  On 24.07.2012, the builder Buyer agreement was signed by the Mr. Kumardeep Gupta-original allottee on dotted lines.  In total, the original allottee paid an amount of Rs.30,22,718/- to the OPs.  On 22.07.2014, the original allottee filed an application  to change/transfer the flat in the name of complainant.   The documentation charges of Rs.10,000/- was deposited for transfer/change of names were submitted and accordingly another allotment letter dated 25.7.2014  was issued by the OPs in the name of complainant.  Another agreement dated 25.07.2014 was issued to the complainant for signing and this is how OP changed the earlier agreement dated 24.07.2012 to 25.07.2014. This change/transfer in favour of blood relation by the original applicant amounts  of the complainant to step into shoes of the original allottee. However the  change of date of the agreement from 24.07.2012 to 25.07.2014 was unwarranted/deliberate attempt on the part of the builder to affect the rights of the buyer in claiming the compensation in case of delay entailed in handing over the possession of the flat.  As per agreement dated 24.07.2012, the possession was due in January 2016, but, as per the new agreement, the possession of the flat was shown to  be due after completion of 42 months i.e. from 25.07.2014  to January 2018).  OP have intentionally got signed the new agreement after the change of name only. The complainant  made payments of (Rs.10,000/- on 16.07.2014, Rs.1,38,914/- on 16.12.2014 and Rs.38,421/- on 16.02.2017= total Rs.1,87,335/-)  to the OPs and in all complainant paid Rs.32,10,053/- to the OPs. The possession as per clause 2 (a) of the apartment buyer’s agreement was scheduled to be delivered by Jan 2016 but till date more than 17 months have elapsed beyond the prescribed time limit for the possession of flat i.e. within 42 months from 24.07.2012) no letter offering possession has been received. The OPs failed to develop the area as per the buyer’s agreement.  There is no hope for possession in near future as the construction was still under progress at very low pace. Due to delay of project, the complainant lost interest in the flat and requested the OPs to refund the entire amount  i.e. Rs.32,10,053/- paid by him but, they did not consider the genuine request.  Thus there was deficiency in service on the part of the OPs.  The complainant prayed that OPs be directed to refund the deposited amount i.e. Rs.34,05,629/- alongwith interest at the rate of 24% p.a from the date of deposit till its realization; Rs.10,00,000/- as compensation on account of mental agony and physical harassment and Rs.1,00,000/- as cost of litigation expenses.

2.      Notice of the complaint was issued against the O.Ps. and the written statement was filed, wherein it was submitted that the flat in question was booked by the allottee of his own and possession of the same was agreed to be delivered within 42 months  subject to some reservations.  On 22.07.2014 a request for change of original main applicant was received by the  OPs and accordingly name of original allottee was removed  and changed to that of Mr.Om Parkash present complainant.  New Apartment Buyer’s agreement was executed on 25.07.2014 and as per the terms and conditions of the company at the time of executing the new agreement, old agreement was cancelled.  It was denied that change of date in apartment buyer’s agreement from 24.07.2012 to 25.07.2014 was unwarranted and a deliberate attempt on the part of the builder. The service tax was charged as per law.  As per the terms and conditions of the agreement, the possession of the flat so booked was to be delivered in 2018. The OPs have applied for the occupation certificate before the competent authority.  Thus there was no deficiency in service on the part of the OPs. Other objections about  maintainability of complaint, accruing cause of action, concealment of material facts, complaint is false, frivolous and vexatious etc. were also raised and requested to dismiss the complaint.

3.      Rejoinder filed by the complainant.  In rejoinder, the complainant reiterated the facts mentioned in the complaint whereas that of written version were denied.  It was also submitted that the licence of the OP was valid upto 11.01.2018 and company has applied for occupation certificate phase-1  and Phase II towers.  The possession shall tentatively start after 4-5 months.  The complainant has been blackmailing and pressurising the OP. Thus, the complainant was not entitled for refund alongwith interest.

4.                When the complaint was posted for recording evidence of the parties, counsel for the complainants-Ms. Jigyasa Tanwar in her evidence has tendered the affidavit of Om Parkash as Ex.CA vide which he has reiterated all the averments taken in the complaint and further tendered the documents Ex.C-1 to Ex.C-18 and closed her evidence.

5.                On the other hand, in order to rebut the evidence led on behalf of the complainants, O.Ps. has also tendered the affidavit of Mr.Surinder Singh Authorised signatory as Ex. RA and further tendered the documents Ex.R-1 to R-10 and closed his evidence.

6.                The arguments have been advanced by Ms.Jigyasa Tanwar, learned counsel for the complainant as well as Mr.Himanshu Monga proxy counsel for Mr. Hemant Saini, learned counsel for the opposite parties.  With their kind assistance entire record including documentary evidence as well as whatever the evidence had been led during the proceedings of the complaint had also been properly perused and examined.

7.                As per the basic averment taken in the complaint and the reply filed thereto including the contentions raised by the learned counsel for the parties, the foremost question which requires adjudication by this Commission is as to whether the present complainant is entitled to get refund of the amount which he had already deposited, alongwith the interest? 

8.                While unfolding the arguments, it has been argued by Ms. Jigyasa Tanwar, the learned counsel for the complainant that  as per agreement dated 24.07.2012, the basic price of the flat was Rs.26,95,000/-.  As per the request of the original allotte, the flat was transferred in the name of complainant subject to deposit of Rs.10,000/- as administrative fees paid to the OPs. On 25.07.2014, the OPs illegally executed another buyers’ agreement for total sale consideration of Rs.41.00 lacs. The complainant had paid total amount of Rs.32,10,053/- to the OPs, but, till date possession of the flat has not been delivered to him.  As per the buyers agreement  and the terms and conditions incorporated therein including date of delivery of the possession of the flat, the possession complete in all respect was to be delivered to the complainants by the O.Ps.  within 42 months subject to some reservations.  The period within which, the possession of the flat was to be delivered had already expired despite complainant depositing the amount of Rs.32,10,053/-.  In these circumstances the complainant had no other option, but, to sought the refund of the amount alongwith interest, which he has already paid.  She placed her reliance upon judgement of Hon’ble Supreme Court of India titled Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor decided on 07.04.2022 2022 (2) RCR (Civil) 750, DLF Home Developers Ltd. Vs. Capital Greens Flat buyers Association etc.  and opinion of Hon’ble National Commission in Emaar MGF Land Limited & Anr. Vs. Amit Puri 2015(2) CPJ 568.

9.                On the other hand, it has been argued by Mr.Himanshu Monga proxy counsel for Mr.Hemant Saini, learned counsel for the O.Ps. that complainant has not paid the installments as per the payment schedule.  The original allottee booked the unit in the year 2012.   On the request  of the original allottee, the flat was transferred to the complainant in the year 2014.  As per the terms and conditions of the agreement,  New Apartment Buyer’s agreement was executed on 25.07.2014 and at the time to executing the new agreement, old agreement was scrapped.  It was vehemently denied that change of date in apartment buyer’s agreement from 24.07.2012 to 25.07.2014 was intentional and  deliberate attempt on the part of the builder to reduce his liability towards delayed interest. The service tax was charged as per law.  As per the terms and conditions of the agreement, the possession of the flat  became due in the year 2018. The OPs have applied for the occupation certificate before the competent authority. The answering O.Ps. have not committed any breach of agreement. The complainant has no right to demand the refund as builder has not refused to complete the development work and offer possession of flat to the complainant.    The answering O.Ps. will offer the possession of the flat to the complainant after completion of development work.   Thus, the complainant was not entitled for the refund as prayed for. He placed his reliance upon authority of Hon’ble National Commission in consumer Case No.1225 of 2015 titled Anand K Srivastava Vs. M/s Unitech Limited and Anr. Decided on 03.11.2016 and Vinod Sharma Vs. M/s Avalon projects & ors. Decided by HRERA, PKL.

10.              In view of the above submission and after careful perusal of the entire record, it is not in dispute that upon floating a project by the builders, apartment was purchased by the complainant for a cost of Rs.26,95,000/- against which an amount of Rs.32,10,053/-  has been paid.  Buyer agreement  was executed initially in the year 2012 is not disputed.  As per buyer agreement, the possession of the flat was to be delivered within period of 42 months complete  subject to some reservation.    The opposite parties forcefully executed the another buyer agreement  in favour of the complainant dated 25.07.2014 after complainant appeared on the scene stepping into shoes of original complinant. To the utter surprise of this Commission and is very pity that inspite of the fact that period of more than 9 years has expired, the possession of the flat has not been delivered by O.Ps as yet.  As such, there is a clear breach of terms and conditions of the buyers agreement on behalf of the O.Ps.   It is the normal trend of the developers/O.Ps. that  developer would collect their hard earned money  from  the  individuals and would invest the funds in other projects as a result thereof the project  for which the investors have invested their hard earned money is not completed.  Resultantly,  the delivery of possession or completion of the project is delayed as in the present case.  When the project is not complete as such, this Commission is of the considered opinion that there is deficiency in service of opposite parties  and thus, complainants are well within his legal rights to get the refund of the amount of Rs.32,10,053/- (Thirty Two Lac Ten thousand fifty Three Only)   which he had already deposited with the O.Ps.  Even otherwise also there is a strong element of the physical and mental agony caused to the complainant for investing a huge amount and still deprived of not being put into possession of the same and under these constrained circumstances, he had to knock the door of this Commission even for seeking refund of the amount.  In such like cases  the Commission had to deal with the developers/O.Ps. with severe hands who are misusing the funds of the individuals.  The case law cited by the OPs in Anand K Srivastava Vs. M/s Unitech Limited and Anr (supra) and Vinod Sharma Vs. M/s Avalon projects & ors. (supra) are not relevant as in this case two buyers agreement were executed by the OPs. The case law cited by the counsel for the complainants titled Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor (supra), DLF Home Developers Ltd. Vs. Capital Greens Flat buyers Association etc.(supra)  and in Emaar MGF Land Limited & Anr. Vs. Amit Puri (supra) are relevant in the eyes of law as if the builder failed to deliver the possession of the apartment within time stipulated as per agreement, the complainant can seek refund of the deposited amount alongwith interest. As such the question is answered in the affirmative.

11.              In the light of the above observation and discussion, there are sufficient grounds to accept the complaint and while accepting the complaint,  the O.Ps. are directed to refund of the amount of Rs.32,10,053/- (Thirty Two Lac Ten thousand fifty Three Only)  alongwith interest @ 6%  per annum from  the date of respective deposits till realization to the complainants.   In case, there is a breach in making payment within the stipulated period  of  30 days, in that eventuality, the complainant would further be entitled to get the interest @ 9% per annum, for the defaulting period.   The complainant is also entitled of Rs.50,000/- (Fifty Thousand  Only) for compensation of mental and physical agony.  In addition, the complainant is also entitled of Rs.25,000/-  (Twenty Five Thousand Only) as litigation charges.  It is also made clear that for non-compliance, the provisions enshrined under section 72 of the C.P.Act  would also be attractable. 

12.    Applications pending, if any stand disposed of in terms of the aforesaid judgment.

13.    A copy of this order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The order be uploaded forthwith on the website of the commission for the perusal of the parties.

14.    File be consigned to record room.

 

November 20th, 2022      Suresh Chander Kaushik,          S.P.Sood

                                       Member                                    Judicial Member                                 

S.K.(Pvt.Secy)