Haryana

Panchkula

CC/285/2015

DEEPAK PRASHAR & ORS . - Complainant(s)

Versus

BHOOMI INFRASTRUCTURE COMPANY & ARS. - Opp.Party(s)

MUNISH YADAV

01 Jun 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  PANCHKULA.             

                                                                  

Consumer Complaint No	:	285 of 2015
Date of Institution	:	21.12.2015
Date of Decision	:	01.06.2016

                                                                                          

1.       Deepak Prashar s/o Sh.Narain Datt Prashar, R/o House No.816, Sector-12, Panchkula, Haryana.

2.       Namarta Prashar w/o Deepak Prashar, R/o House No.816, Sector-12, Panchkula, Haryana.

                                                                                          ….Complainants

Versus

1.       Bhoomi Infrastructure Company through its Managing Director/General Manager having its Corporate office at Gold City, Plot No.11, Sector 19-D, VASHI, Navi Mumbai.

2.       Bhoomi Infrastructure Company through its Managing Director, Lt. Col. (Retd) S.S.Deswal having its branch office at House No.1411, Sector-21, Panchkula, Haryana.

                                                                 ….Opposite Parties

COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.

 

Before:                 Mr.Dharam Pal, President.

Mrs.Anita Kapoor, Member.

Mr.S.P.Attri. Member.

 

For the Parties:     Mr.Manish Yadav, Adv., for the complainant.

Mr.Sanjay Bharti, Adv., for the Ops.

ORDER

(Dharam Pal, President)

 

1. The complaint is filed by the complainants under Section 12 of the Consumer Protection Act, 1986 against the Ops with the averments that the representative of the Ops induced the complainants by presenting a very rosy picture of flats to be sold by the company and entire complex to be developed by Ops within a period of 3 years. The Ops assured the complainants that they were a prominent company of Mumbai and have executed several projects and have developed several complexes at Mumbai. The complainants were also looking for buying a flat in which they would have all comforts of dreams, overlooking the soothing greens and an open view of a well maintained parks, well established infrastructure and hassle free life. The Ops also assured the complainant of free membership of 5 star club, restaurant, card room, Billards room, Gym with health club, Banquet Hall/community centre, Mini theatre, Convenience shops, Dispensary, 24 hours power and water supply, primary school and the entire complex has been conceptualized. The Ops further assured the complainant that the project would be completed within 36 months and the possession of flat would be handed over with complete amenities and infrastructure. On assurance of Ops, the complainant booked a flat No.C-1/1802 at 18^th floor, Type C (1175 sq. ft.) in “Amazon-The Defence County” for Rs.41,82,500/- in which included basic sale price of Rs.34,66,250/-, club membership charges of Rs.1,00,000/-, EDC/IDW charges of Rs.2,47,500/-, car parking charges of Rs.3,00,000/- and out of said amount, a discount of Rs.1,01,755/- was given to the complainants and net price of flat was assessed at Rs.40,80,725/-.  Provisional letter dated 23.08.2010 (Annexure C-3) was also issued by the Ops. The Ops assured the complainants that they have purchased the land at Sector-30, Panchkula to set up & develop an integrated township and change in land from agriculture to residential/group housing. The Ops further assured the complainants that they have all necessary approvals/permissions and exemptions to develop and promote township and make allotments of flats to intending purchaser. The Ops further committed that they have got the building plans & lay out plan approved from the competent authorities and have also been accorded necessary approvals & permissions. The Ops also committed that the flats were being constructed as per law and possession of flats would be given by end of year 2013 as the entire project would be completed by that time. On the assurances of the Ops, the complainant paid a sum of Rs.4,94,000/- through cheque to the Ops at the time of signing of application for allotment of sale of residential apartment on 23.08.2010. The complainant further paid a sum of Rs.4,27,347/- to the Ops through cheque so the complainant paid a total sum of Rs.9,21,347/- before signing the buyer agreement (Annexure C-4). The Ops delayed the execution of buyer agreement till 2012 and called the complainants for signing the buyer agreement on 27.03.2012 (Annexure C-5) after repeated requests of the complainants. The Ops assured the complainants that they have necessary permissions/sanctions from the State Government and have already got the building plans approved. The Ops further assured the complainants that they have necessary permission from the municipal committee and maps have also been got sanctioned from the municipal committee/corporation. The Ops further assured the complainants that if they failed to offer the possession of flat within 36 months from the date of allotment of flat, the company would refund the money alongwith interest. The company has time and again assured the complainants that they would sign the agreement within 15 days with the complainants and in case they failed to do so they would return the money alongwith interest. After making the payments as demanded by the Ops, the complainants performed their part of contract and had been waiting for the agreement to be signed between the parties. At the time of making the payments, complainants were assured that the project was progressing well and agreement to sell should soon be executed between the parties within 15 days. The complainants accepted the version of Ops and believed them. The complainants requested several times the Ops for signing the agreement but the Ops did not sign the agreement and kept on assuring the complainant that construction was going on at full swing and possession of flats would be given by the end of year 2013, within 36 months of issuance of allotment letter but the company did not even start any construction at site upto April, 2011 and the complainants were surprised on getting information that the Ops were going to start construction in April, 2011. In the year 2012, the Ops called the complainants for signing the buyer agreement. Even the Ops did not let the complainants read the buyers agreement and assured the complainants that possession of flat would be handed over by the end of year 2013 but the Ops have failed to hand over the possession of flat rather the Ops were demanding more money. The Ops did not give the copy of buyers agreement to the complainants and told that a copy of buyers agreement would be sent to complainant’s home as the buyers agreement need to be sent to Ops office at Mumbai for signing and registration. After many visits and requests, the complainant got the copy of buyers agreement in October, 2013. After perusing the copy of agreement, the complainant was shocked to know that the Ops have unilaterally changed the date of possession of flat to 36 months from date of signing of buyer agreement dated 27.05.2012 (wrongly mentioned 23.05.2012) with an extension of additional 12 months. The Ops also changed the basic sale price of flat as per provisional letter which was Rs.34,66,250/- whereas in buyers agreement the Ops changed it to Rs.35,14,475/- and demanded a sum of Rs.3,23,125/- as EDC. The Ops arbitrarily increased the price of flat by showing basic price from 34,66,000/- to Rs.35,14,475/-. Moreover, the Ops have not started the construction at site but arbitrarily raising demands for more money. On 07.03.2014, the Ops wrote a letter stating that they would hand over the possession with next 2 to 2.5 years and assured that they would give a firm schedule for possession and start of construction after receipt of funds and positioning of infrastructure by contractor. The Ops further assured that they would intimate all the allottees about change in management, revised completion schedule and amended payment schedule, however, the Ops have not shared any of the details. The Ops again wrote a letter on 26.05.2014 to the complainants stating therein that the construction work has commenced in the month of April, 2014 and work was being carried out by continental construction company but the Ops have failed to show any agreement with the continental construction company. The complainants requested the Ops to refund the amount deposited by him alongwith interest at the rate of 18% and damages/compensation as they have failed to handover the possession of the flat in the Amazon-The Defence County but to no avail. This act of the opposite parties amounts to deficiency in service on their part. Hence, this complaint.
2. The Ops appeared before this Forum and filed written statement by taking some preliminary objections and submitted that the development work being carried out by the opposite party in accordance with the provisions of the Haryana Development and Regulation of Urban Area Rules, 1976 as also the terms of license granted by the Director, Town and Country Planning Haryana. It is submitted that the complainant applied for a unit in Type-C in the residential apartment in AMAZON-The Defence County, Sector-30, Panchkula and deposited a sum of Rs.4,94,000/- with the Op No.1 on 08.09.2010 as booking amount. It is submitted that the complainants were allotted flat No.1802, Type-C-1 on 18^th floor for an amount of Rs.40,87,600/- which included the club membership charges and EDC charges. It is submitted that the complainants were clearly informed that the possession of flat would be given within 3 years from the date of execution of the Flat Buyer Agreement with an extension of additional 12 months. It is submitted that the Flat Buyer Agreement was executed and signed by the complainant & OP No.2 on 27.03.2012. Prior to the agreement, the complainant read over the contents of the agreement, sheet of total consideration and schedule of the payment. It is submitted at the time of initial payments, the complainant was told that the possession would be offered within 36 months from the date of flat buyer agreement with an extension of 12 months subject to payment. It is submitted that as per the schedule, the amount of Rs.4,94,000/- was only booking amount and the construction was started so the complainant further made another payment of Rs.4,27,347/-. It is submitted that after the month of October, 2012, the construction work stopped on account of some disputes between the partners of OP No.1 and on that account, no further payment was demanded from the complainants. It is submitted that in the month of March, 2014, the construction work was again initiated and the construction of Tower Type-C reached to the slab of 4^th floor in the month of June, 2014 on which the Ops demanded the 3^rd installment on 19.06.2014 but the complainant failed to make the payment. It is submitted that the construction work went on constantly and with the construction of the slabs after slabs, the demands of the further installments were made on 25.10.2014, 24.11.2016 (wrongly mentioned) and 30.01.2015. It is submitted that as per the demand notice dated 30.01.2015, an amount of Rs.21,10,721/- was due against the complainants. Thereafter, the father of the complainant approached the Op No.2 and informed that due to recession in the market, he was not in a position to make the payment and he be granted some time to make payment.  It is submitted that in the month of June, 2015, the father of the complainant told the Op No.2 that he has some conversation with a bank who was ready to make the payment on loan and for the same, the complainant again needed a fresh provisional allotment letter which was issue to him on 30.06.2015. Thereafter, the construction work of Tower Type-C reached upto 19^th floor (top floor) and further amount was also became due against the complainants. It is submitted that the complainants instead of making payment of balance installments and other dues filed the present complaint. It is submitted that as per clause 26 of the agreement, Ops promised to complete construction of the unit within a period of 36 months from the date of execution of the said agreement with an extension of additional 12 months subject to fulfilling of conditions duly mentioned in the agreement which came to 11.03.2016.  It is further submitted that if Ops would fail in handing over the possession then they would pay to allottee compensation at the rate of Rs. 5/- per month per square feet of the super built up area of the unit. It is submitted that due to some unavoidable circumstances, the project became little late. It is submitted that despite many demands, the complainant did not pay the amount. It is submitted that without payment of the schedule amount, the complainants were not entitled for the flat and the Ops would be left with no other alternative except to cancel the allotment of the flat in its project and to return the amount to the complainants as per the terms and conditions of the Flat Buyer Agreement. It is submitted that the Ops never promised for the free club membership etc. It is submitted that some amounts were changed at the time of Flat Buyer Agreement which was executed by the complainants with full consent and after understanding the entire terms and conditions of the agreement. It is submitted that the basic price of the flat was Rs.36,16,250/- at the time of Flat Buyer Agreement which was clearly told to the complainants and he admitted & gave consent for the same. It is submitted that the complainants signed the Flat Buyer Agreement after admitting the terms & conditions and rates of the flat. It is denied that the Ops ever said that the possession would be handed over till year 2013. It is submitted that upto the date of execution of agreement a total amount paid was Rs.4,94,000/- whereas an amount of Rs.4,27,347/- was made few days after the execution of flat buyer agreement and thereafter, no payment was made by the complainants. Thus there is no deficiency in service on the part of the Ops and prayed for dismissal of the complaint with costs.
3. The counsel for the complainant has tendered the evidence by way of affidavit Annexure C-A alongwith documents Annexure C-1 to C-7 and closed the evidence. On the other hand, counsel for the Ops has tendered the evidence by way of affidavit Annexure R-A alongwith documents Annexure R-1 to R-9 and closed the evidence.
4. We have heard learned counsel for the parties and have also perused the record.
5. Admittedly, the complainants booked a residential flat Type-C (1175 per sq. ft.), 18^th floor, flat No.C-1/1802 vide allotment letter dated 23.08.2010 (Annexure C-3) with the Ops. The complainants paid a total sum of Rs.9,21,347/- to the Ops (Annexure C-4). The basic price of the residential unit was Rs.2950/- per sq. ft and total basic cost was Rs.34,66,250/-. Apart from the above, the Ops also charged club membership Rs.1,00,000/-, car parking Rs.3,00,000/-, Government dues (IDW) Rs.3,16,250/- and gross total for the residential unit was fixed for Rs.40,80,725/-. The discount of Rs.1,01,775/- was also granted. The complainants were to pay Rs.40,80,725/- for the abovesaid residential unit. The learned counsel for the complainants has argued that the Ops delayed in executing the buyer agreement and after repeating requests by the complainants, the Ops executed the Buyer Seller Agreement on 27.03.2012 (Annexure C-5) after two years from the allotment of flat. Till the execution of agreement, the Ops did not raise construction on the flat and date of possession of flat was from the date of signing of buyer agreement dated 27.03.2012 with an extension of additional 12 months. He further argued that the Ops also changed the basic sale price of flat from Rs.34,66,205/- to Rs.35,14,475/- and demanded Rs.3,23,125/- as EDC.
6. On the other hand, the counsel for the Ops argued that the complainants were clearly informed that the possession of flat would be given within 3 years from the date of execution of Flat Buyer Agreement with an extension of additional 12 months and the Flat Buyer Agreement was executed on 27.03.2012 (Annexure C-5). He further argued that in the month of October, 2012, the construction work stopped on account of some disputes between the partners of Op No.1. He further argued an amount of Rs.21,10,721/- was due against the complainants which was not paid by them. The Ops further submitted that the basic sale price of flat was Rs.36,16,250/- at the time of Flat Buyer Agreement. As per the condition No.26 of the agreement, the construction was to be completed within 36 months from the date of execution of the agreement with an extension of additional 12 months subject to timely payment by the allottee of the basic sale price. The Ops vide their letter dated 26.05.2014 (Annexure C-7) stated that the construction work at the complainant project commenced in the last week of April, 2014. The Ops also admitted that the project had entered rough water and was intimated to the complainant vide a mail in March, 2014. The Ops also informed the complainant that all management related issues stands resolved and the new construction company with all its expertise and wherewithal will assist them in completing the project as per the revised schedule. The Ops also informed the complainant about the progress of the project and stated that the construction of tower C roof slab of 4^th floor has been cast. As per the agreement, the construction of the unit was to be completed upto 11.03.2016 but till date the Ops have not handed over the possession of the abovesaid unit to the complainants.
7. However, the Buyer Agreement was executed on 27.03.2012 after 1½ years of allotment of flats whereas the agreement should be signed immediately after the allotment of flats. Till date execution of agreement, the complainant paid Rs.9,21,347/-. As per clause 26 of the Buyer Agreement, the construction was to be completed within a period of 36 months from the date of Buyer Agreement with addition of 12 months but the Ops initially took almost 1½ years to execute the agreement so they can defer the liability to pay the penalty to the allottee due to non-construction of the flat within stipulated period. The Ops have also not placed any document that the extension of 12 months time has been conveyed to the complainants at any time.
8. It is evident that the complainants were allotted Flat No.C-1/1802 at 18^th floor, Type-C, measuring 1175 Sq. Ft. inclusive of Car Parking vide letter of allotment dated 23.08.2010 (Annexure C-3). Agreement to Sell was executed between the parties on 27.03.2012 (Annexure C-5). The total consideration amount of the flat was fixed for Rs.40,80,725/- as is evident through Annexure C-3. The complainants paid an amount of Rs.9,21,347/- to Opposite Parties till September 2010. Clause 26 of the Agreement reveals that the Ops had to complete the construction of the unit within a period of 36 months from the date of execution of the said agreement with an extension of additional 12 months.
9. The first question, which falls for consideration, is, as to whether there was delay in offering possession, on account of which, the complainant is entitled to refund of the amount deposited by him with interest or not. Part of Clause 26 of Agreement to Sell dated 27.03.2012 (Annexure C-5), being relevant, is extracted hereunder:-

“The developer shall, subject to force majeure circumstances or such other circumstances beyond the reasonable control of the Developer, endeavour to complete the construction of the Unit within a period of 36 months from the date of execution of this Agreement with an extension of additional 12 months”

As is apparent from the afore-extracted clauses, Opposite Parties No.1 & 2 were to offer possession of the unit, in question, to the complainant by March, 2016. However, OPs failed to offer possession within the aforesaid stipulated period i.e. by March, 2016. Even till date, the possession of the flat, in question, has not been offered or delivered to the complainant  by Opposite Parties No.1 & 2. There is nothing on record, wherefrom it can be ascertained that possession of the flat, in question, was ever offered by Opposite Parties No.1 & 2 to the complainant. It was clearly stated by the National Commission, in Emaar MGF Land Limited and another Vs. Dilshad Gill, III (2015) CPJ 329 (NC), that when the promoter has violated material condition, in not handing over possession of the unit, in time, it is not obligatory for a purchaser to accept possession after that date. In Shri Satish Kumar Pandey and another Vs. M/s Unitech Limited’s & Ors., Consumer Complaint No.427 of 2014 decided on 8.6.2015, the agreement between the flat buyers and the developers, M/s. Unitech ltd. for payment of compensation on account of delay in completion of the construction of the apartment was fixed at the rate of Rs.5 per sq. ft. per month of the Super Area. In the aforesaid case, it was contended on behalf of the developers that the complainants were entitled only to the agreed quantum of compensation for the period the project was delayed. Rejecting the said contention, the National Commission in Para 12, inte-ralia, held as under:-

“12……..The interest being charged by the Banks and Financial Institutions for financing projects of the builders is many times more than the nominal compensation, which the builder would pay to the flat buyers in the form of flat compensation. In fact, the opposite party has not even claimed that the entire amount recovered by it from the flat buyers was spent on this very project. This gives credence to the allegation of the complainants that their money has been used elsewhere. Such a practice, in my view, constitutes unfair trade practice within the meaning of Section 2(r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practice for the purpose of selling the product of the builder. Though, such a practice does not specifically fall under any of the Clauses of Section 2(r)(1) of the Act that would be immaterial considering that the unfair trades, methods and practices enumerated in Section 2(r)(1) of the Act are inclusive and not exhaustive, as would be evident from the use of word “including” before the words “any of the following practices”

Thus, in view of law laid down in Emaar MGF Land Limited and another Vs. Dilshad Gill’s case (supra), the complainant is entitled to refund of Rs.9,21,347/-.It is to be further seen, as to whether, interest, on the amount refunded can be granted, in favour of the complainant. It is not in dispute that an amount of Rs.9,21,347/- was paid by the complainant, without getting anything, in lieu thereof. The said amount has been used by Opposite Parties No.1 & 2, for its own benefit. It may be stated here that as per Clause 31 of the Agreement (Annexure C-5), Opposite Parties No.1 & 2 could charge interest @ 18 % per annum for the first 90 days from the due date and 21 % per annum after 90 days on the due amount/installment, if there remains delay in remitting the payment as per payment plan. It is well settled law that whenever money has been received by a party which ex ae quo et bono ought to be refunded, the right to interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the right to interest. It was also so said by the Hon’ble Supreme Court of India, in UOI vs. Tata Chemicals Ltd (Supreme Court), (2014) 6 SCC 335 decided on March 20^th, 2014. In view of above, the complainant is certainly entitled to get refund of the amount deposited by it, to the tune of Rs.9,21,347/- alongwith interest @ 9% simple interest from the respective dates of deposits till realization.

10. The next question, which falls for consideration, is, as to whether, the complainant is entitled to any compensation or not. The complainant deposited his hard earned money, in the hope that he will have a house to live in. As already discussed above, possession of the flat, in question, has not been delivered by Opposite Parties No.1 & 2 till date. On account of non-delivery of possession of the floor, in question, by Opposite Parties No.1 & 2, to the complainant, complete in all respects, by the stipulated date and by not refunding the amount to him (complainant), the complainant had certainly suffered physical harassment and mental agony on account of the acts of omission and commission of Opposite Parties No.1 & 2, and escalation in prices, for which, he needs to be suitably compensated. In our considered opinion, compensation in the sum of Rs.1,00,000/- if granted, would be just and adequate, to meet the ends of justice.    
11. No other point, was urged, by the Counsel for the complainant and Counsel for Opposite Parties.
12. For the reasons, recorded above, the complaint is partly accepted, with costs against Opposite Parties No.1 & 2 and they are held, jointly and severally, liable and directed in the following manner:-

1. To refund the amount of Rs.9,21,347/-alongwith simple interest @ 9% per annum, to the complainant, from the respective dates of deposits, till realization, within a period of 30 days, from the date of receipt of a certified copy of this order;

(ii)     To pay an amount of Rs.1,00,000/-  (Rupees one Lac only), to the complainant, as compensation for mental agony and physical harassment, within a period of 30 days from the date of receipt of a certified copy of the order;

(iii)    To pay cost of litigation, to the tune of Rs.10,000/- to the complainant within a period of 30 days from the date of receipt of a certified copy of the order.

A copy of this order be sent to the parties free of costs and file be consigned to the record room after due compliance.

 

Announced

01.06.2016       S.P.ATTRI         ANITA KAPOOR         DHARAM PAL

                         MEMBER          MEMBER                      PRESIDENT

 

Note: Each and every page of this order has been duly signed by me.

 

    

                                 

                                                         DHARAM PAL

                                                          PRESIDENT