Delhi

North

CC/209/2021

SHIVANAND JAIN & ANR. - Complainant(s)

Versus

DIYA GREENCITY GHAZIABAD PVT. LTD. - Opp.Party(s)

F.K. JHA

01 Dec 2023

ORDER

District Consumer Disputes Redressal Commission-I (North District)

[Govt. of NCT of Delhi]

Ground Floor, Court Annexe -2 Building, Tis Hazari Court Complex, Delhi- 110054

 

Consumer Complaint No.209/2021

Sh. Shivanand Jain

S/o Sh. S. P. Jain

R/o 77, Mall Apartments, Mall Road,

Delhi-110054                                                  …                 Complainant No.1

 

Sh. Shashank Jain

S/o Sh. Shivanand Jain,

R/o 77, Mall Apartments, Mall Road,

Delhi-110054                                                  …                 Complainant No.2

 

Vs.

Diya Greencity Ghaziabad Pvt. Ltd.

Raj Nagar Extension,

Regd. Office at: SF-02 (Second Floor),

Eureka House, A-30/2, Gali No.3

West Jyoti Nagar (Near Durga Puri Chowk)

Shahdara, Delhi-110094

Through its Managing Director                           …                 Opposite Party No.1

 

Sh. Prashant Garg

Director of Diya Greencity Ghaziabad Pvt. Ltd.

Office at: SF-02 (Second Floor),

Eureka House, A-30/2, Gali No.3

West Jyoti Nagar (Near Durga Puri Chowk),

Shahadara, Delhi-110094                                   …                 Opposite Party No.2

 

Sh. Nishant Garg

Office at: SF-02 (Second Floor),

Eureka House, A-30/2, Gali No.3

West Jyoti Nagar (Near Durga Puri Chowk),

Shahadara, Delhi-110094                                  …                 Opposite Party No.3

 

Uttar Pradesh Housing and Development Board

104, Mahatma Gandhi Marg, Sarva Palli Road,

Lucknow, Uttar Pradesh-226001

Through its Principal Secretary                           …                 Opposite Party No.4

 

01.12.2023

ORDER

(Divya Jyoti Jaipuriar)

1. By way of this complaint, the Complainant has alleged non-delivery of “affordable house Type 3AS” having specific No.DGR/3AS/42 to the Complainant within the time specified in the Builder Buyer Agreement by M/s Diya Greencity Ghaziabad Pvt. Ltd. (OP-1) and its Director namely Sh. Prashant Garg (OP-2) and Sh. Nishant Garg (OP-3). The said affordable housing was to be provided to the Complainant under the UP Government’s Samajvadi Awas Yojna which is stated to be monitored by Uttar Pradesh Housing and Development Board (OP-4).

2. OP-1, OP-2 and OP-3 launched Diya Greencity Housing Scheme under the UP Government’s Samajvadi Awas Yojana on the plot supposedly allotted by OP-4. Complainant No.1 and Complainant No.2 were the co-allottees of the Type 3AS flat and have jointly signed Flat Buyer Agreement with the OP-1 on 28.01.2017. The allotment letter is also dated 28.01.2017. In terms of the Flat Buyer Agreement, the Complainant’s were allotted type 3AS flat having specific No. DGR/3AS/42 with a build-up area of 925.61 sq. ft. and the OPs promised to handover the possession to the Complainants within a period of 36 months from the date of agreement with a grace period of six months. The said time limit for handing over the possession, with the grace period ended on 28.07.2020. In subsequent documents, the said flat is identified as “Flat no. B-1109 on 11^th floor in Tower: B in Diya Green City, Raj Nagar Extension, Ghaziabad”

3. It is alleged by the Complainant that the OP-1 to OP-3 has not completed the project and the flat of the Complainants is far from being ready for possession. It is also stated by the Complainants that there are still many unfinished work as on 22.11.2021 when the Complainants visited the construction site. In support of the said claim, some photographs have also been filed along with the complaint. However these photographs do not specifically identify the flat or the project in question. It is also alleged that the OP-1 to OP-3 have not obtained necessary clearances from the appropriate authorities including from fire department and electricity department. Hence, the Complainants allege that the said flat is far from being ready for delivery and the OP-1 to OP-3 have failed to comply with the terms and conditions of the flat buyer agreement. Hence, the Complainants have sought, inter alia, a directions to the OPs to refund of the amount so paid i.e. Rs. 26,36,500/- for purchase of the said flat in question along with interest @ 15% PA and to pay compensation of Rs. 2,00,000/- for deficiency of service, unfair and restrictive trade practices and for causing intentional agony. The Complainants have also prayed for a direction to the OP to pay Rs. 1,00,000/- on account of litigation expenses.

4. We have gone through the documents on record. As the OPs are proceeded ex-parte, we did not have any opportunity to hear the versions of the OPs. It is a fact that the Complainants signed the flat buyer agreement on 28.01.2017 which provides that the OP-1 shall hand over the possession of the flat in question within a maximum period of 42 months (36+6) from the date of signing of the agreement. The same period ended on 28.07.2020.

5. It is also a fact that the OP-1 has issued an intimation letter on 10.11.2021 (page 111 of the complaint), by which the Complainants were intimated about completing possession formalities/ commencement of fit outs for the flat in question. By the said intimation notice, Complainants have been intimated that the OPs are granting temporary access to the allottees for carrying out fit-outs of their units. This intimation letter does not call for offering final possession of the flat in question. Subsequently, on 11.11.2021 the OP-1 has issued a demand letter (page 113 of the complaint) and called upon the Complainants to pay the final instalment of Rs. 1,97,732/- before 10.12.2021. The said amount, being the final instalment, was paid on 18.11.2021 by the Complainants.  In the meantime, on 14.11.2021, OP-1 has sent an email calling upon the Complainants to pay the Annual Maintenance Charges (AMC) of Rs. 38,879/-. This amount was not paid by the Complainant.

6. The Complainants have allegedly visited the construction site on 22.11.2021 and they have found that the project in general and flat in question in particular are not ready for handing over possession to the Complainants. They have filed some photographs, but these photographs do not identify either the project in question or the flat of the Complainants. In absence, of any authentic third party report, we cannot rely on the photographs as filed by the Complainants. However, perusal of the intimation letter dated 10.11.2021 indicates that the project in general and flat in particular, are not ready for offering possession at least as on 11.11.2021.

7. At the same time, it is a fact that the due date for offering possession in accordance with the flat buyer agreement, even considering the grace period, was 28.07.2020. The said date fell during the lockdown and restrictions because of Covid-19 pandemic. It is also a fact that because of Covid-19 pandemic, the construction activities was badly hampered and projects were delayed. Accordingly, Uttar Pradesh Real Estate Regulatory Authority (UPRERA), a statutory body under the provisions of the provisions of the Real Estate (Regulation and Development) Act, 2016 has considered the representations of Confederation of Real Estate Developers' Associations of India (CREDAI) and National Real Estate Development Council (NAREDCO) have passed its order No. 7225/U.P.RERA/ Extension/ Compliances/ Order/ LKO/ 2021-22 dated 18.08.2021 and have permitted further extension of 12 months for completion of the projects. Accordingly, in view of the order dated 18.08.2021 issued by UPRERA the date of delivery stands extended for a period of one year at least since the date of the order of UPRERA. Hence, the OPs herein also get extension of time for completion of the project at least till 18.08.2022.

8. Accordingly, in our view, as this complaint was filed on 03.12.2021, the date was well within the permissible extended time as directed by UPRERA, the Complainants have filed this complaint pre-maturely.  As a result, prayers in complaint cannot be granted only on the ground that this complaint has been filed pre-maturely. Hence, this complaint is dismissed on the sole ground of pre-mature filing.

9. We, however, make it clear, that this Commission have not given any observations on the merits of the complaint as the complaint has been dismissed on technical ground of being pre-mature. It is further clarified that if the Complainants chose to file a fresh complaint on the same set of ground, the same shall be decided on its own merits without being influenced by any of the observations made in this order.

10. Office is directed to supply the copy of this order to the parties as per rules. Thereafter, file be consigned to the record room.

 

 

 

___________________________

Divya Jyoti Jaipuriar, President

 

 

 

___________________________

Ashwani Kumar Mehta, Member

 

 

 

___________________________

Harpreet Kaur Charya, Member