Eldeco Housingh And Industries V/S Bhawana Pandey - Consumer Court Case

Uttar Pradesh

StateCommission

CC/378/2017

Bhawana Pandey - Complainant(s)

Versus

Eldeco Housingh And Industries - Opp.Party(s)

Abhishek Bhatnagar

29 Oct 2021

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UP

C-1 Vikrant Khand 1 (Near Shaheed Path), Gomti Nagar Lucknow-226010

Complaint Case No. CC/378/2017

( Date of Filing : 13 Sep 2017 )

1. Bhawana Pandey

Lucknow

...........Complainant(s)

Versus

1. Eldeco Housingh And Industries

Lucknow

............Opp.Party(s)

BEFORE:
	HON'BLE MR. Rajendra Singh PRESIDING MEMBER
	HON'BLE MR. SUSHIL KUMAR JUDICIAL MEMBER

PRESENT:

Dated : 29 Oct 2021

Final Order / Judgement

Reserved

State Consumer Disputes Redressal Commission

U.P. Lucknow.

Complaint Case 378 of 2017

Bhawna Pandey d/o Dr. Uma Shankar Pandey,

R/o 19/333, Indira Nagar, Lucknow. …Appellant.

Eldeco Housing Industries Ltd., Lucknow Office,

Second Floor,Eldeco Corporate Chamber-1,

(opposite Mandi Parishad), Vibhuti Khand,

Gomti Nagar, Lucknow-226010 (through it’s

MD/ Chairman)….…Opp. Party.

Present:-

1- Hon’ble Sri Rajendra Singh, Presiding Member.

2- Hon’ble Sri Sushil Kumar, Member.

Ms Bhawana Pandey in person for herself

Sri Rajesh Chadha , Advocate for the Opposite Party.

Date: 22 .11.2021

JUDGMENT

Per Mr. Rajendra Singh, Member: The present complaint case has been filed by the complainant against the opposite party for directing them to provide possession of flat in question within three months from the date of filing the complaint, to direct the opposite parties to pay compensation at a rate of 18% compoundinsterest annually for delay in giving possession on the entire deposit amount till the date of actual delivery of possession, to direct the opposite parties to pay a sum of Rs.10 lakhs towards the pain and mental agony for the complainant and Rs.50,000 towards delay in giving possession to the complainant and also to direct the opposite parties to pay Rs.50,000 as the cost of case and court fee paid by the complainant.

The complainant’s case is that, that she is purchaser of a flat in question and the opposite party in the sellar. Theopposite parties advertised and lured the complainant for various flats with various schemes in EldecoSaubhagyam through various electronic and print media. The complainant visited the office of the opposite party and categorically asked about the timely completion of project and opposite party convinced and assured the complainant that the project would be completed in time and upon the assurances and persuation she booked a flat vide application dated 30 March 2011 for a flat measuring 1200 ft², with an agreed sale consideration of Rs.2,585,600/– and opted for plan “B” which is, Time Linked Instalment Plan and instalments were payable as per the schedule of allotment letter dated 30 March 2011.

The opposite party allotted a unit to the complainant vide allotment letter dated 30 March 2011 and informed the complainant that the unit number 203 in block no T 11 at EldecoSaubhagyam situated at Vrindavan Yojna ,Raebareilly Road, Lucknow has been allotted to her for a total self consideration of Rs.2,586,000/– under the said plan “B”. The complainant and opposite party signed the detailed terms and conditions on 01.04.2011. The complainant had paid the opposite party the entire agreed amount as and when demanded by them and till date complainant had paid an amount to the tune of Rs.3,578,907/– as per the agreed terms and conditions between the parties, possession of the apartment/flat was supposed to be given within 36 months from date of allotment by the opposite party which gets over on 01.04.2014 but till date there is even no whisper about the possession of the flat in question which amounts to deficiency in the services on the part of the opposite party.

Since last few year complainant is running from pillar to post to know about the status of her flat’s possession but she did not get any reply by the opposite party, creating mental anguish in her mind and it amounts to harassment on the part of the opposite party as well as the deficiency in the services on the part of opposite party. The complainant on 15.07.2017 sent a legal notice duly received by the opposite party to know about the possession of the flat but all in vain. The complainant had contacted opposite party through phone to know about the possession status of the flat but all in vain. Thereafter the complainant visited the site personally on 23.08.2017 and got to know that now some work is in progress after so much time but still no one was there to let no her know about the exact date of possession. The complainant is forced to live in a rented house due to delay in delivery of possession of the house by the opposite party and she is under financial burden of paying a rent to the tune of Rs.20,000/– per month due to deficiency on the part of the opposite party which needs to be compensated from them.

On the date of filing of the present complaint opposite party had already done a delay of 3 years and 5 months . The necessity of filing the present complaint arose because the action of the opposite party amounts to unfair trade practice as well as deficiency of services, thus complainant is a consumer and the opposite party is liable to be prosecuted.The cause of action arose on various dates and finally on 17.07.2017 when the opposite party failed to respond to legal notice as well as failed to provide timely possession of flat in question and is continuing each and everyday. The complainant humbly prayed for the reliefs as prayed in the prayer clause.

The opposite party has submitted his written statement stating that the complaint case has been filed with false allegations, twisted and concocted facts with ulterior motive just to harass the opposite party. The complainant initially booked a flat and admeasuring 1200 Square feet super area in the said project with the answering opposite party on 30 March 2011 and in pursuance of the same, flat number 203 was allotted for which complainant entered into the agreement with the opposite party. In terms of the said allotment complainant opted for Time Linked Instalment Payment plan being plan “B” and had to pay the price of the flat and applicable service tax and other charges in terms of the same. The said payment of instalments were payable according to the allotment certificateso far the complainant had paid a sum of Rs.3,452,000/– against the basic cost and other charges and Rs.126,909/– against the service tax till June 2017.

Later on after the revised layout plan of the tower in question, the booked area of the flat increased by 383 square feet super area and accordingly intimation to this effect was given to the complainant by opposite party vide letter dated 21^st of February 2015 informing the cost of enhanced area amounting to Rs.766,000/– along with service tax of Rs.23,669/– being payable by the complainant as per the terms of the allotment agreement for which parties are bound by the same. Vide said letter it was also informed that since the increase in super area is more than 10%, therefore you would also have an option to request for refund of the deposited amount as per terms and conditions of allotment certificate and agreement and further stated that in case you choose to discontinue with your allotment, we request you to kindly inform within 30 days from the date of the said letter. In this regard kind attention is drawn to Clause D-5 stipulates about the revision of the layout plan. Clause D-3 stipulates that in case of variation in actual area vis-à-vis allotted area beyond 1%, the company at its sole discretion will ensure necessary adjustments in the basic price. It further stipulates that if super area varies up to 10%, then the difference in price will be calculated at the rate prevailing at the time of allotment of flat and in case super area varies beyond 10%, the current rate shall be applicable on the entire variation. Hence complinant is liable to pay the charges of the increased area. It is further relevant to state that complainant did not responded to the said letter dated 21 February 2015 and did not deposit the dues of the increased area and defaulted in making the payment of the same. Having no response, opposite party called upon by sending reminders for payment to the complainant of outstanding dues but of no avail and as such complainant flouted the terms of the booking.

As per terms of the flat booking and agreement dated 30.3.2011 executed between the parties in respect of the said flat, the possession of the flat was to be given in 36 months of receipt of the entire basic price and after receipt of extra charge, registration charges and other charges demanded by the company and subject to terms stipulated in clause-E “Possession” of the agreement. The sub-clause-8 of the said clause-E stipulates that the construction of the said flat is to be completed within a period as given of commencement of construction of particular block in which said flat is located with a grace period of 6 months subject to the force majeure conditions etc. as stated therein and also subject to timely payments by that allottee in accordance with the terms and further stipulates that no claim by way of damaged/ compensation shall lie against the company in case of delay in handing over of possession on account of aforesaid reasons stated in said sub-clause.

It is thus submitted that parties are bound by the terms of the agreement. In furtherance it is reiterated that complainant flouted the terms of booking and so far has not paid the entire basic cost and service tax thereon as per booking terms and whatever amounts/instalments paid were on irregular intervals and not on time as per schedule of time as mentioned in the allotment certificate and therefore in consequence interest amount of Rs.1,98,239.65 calculated as on 17.10.2017 on the sum of Rs.38,860.00/- on the said complaint is outstanding and due on the part of the complainant apart from other payment and charges payable subsequent to the same. It is further relevant to submit that construction of a flat was likely to completed in a period of 36 months and 6 months grace period as staed in preceding para, thus total in 42 months subject to receipt of requisite building/revised building plans and other approvals and permissions from the concerned authorities; Force majeure conditions, restraints or restrictions from courts/ authorities; non availability of materials, disputes with contractors/work force etc. and circumstances beyond the control of the company and also subject timely payment by the allottee in accordance with the terms of the agreements as stipulated in clause-8 of clause-E of the agreement which further stipulates that no claim by way of damages/ compensation shall lie against the company in case of delay in handing over the possession on account of said reasons.

Thus, possession was subject to the said condition as stated hereinabove. However, in spite of various hurdles faced by the opp. Party in raising construction, still the company carried out the construction and there being no delay in doing so. The opp. Party had to face the hurdle of Kisan Union and some other unsocial elements in the year 201. 2012 for which writ petition no.12627/2011 was also instituted before the Hon’ble High court. Several representations were also given to the District Magistrate, SSP and other government authorities as there was obstruction by these elements in raising construction by the company. Apart from above there was also dispute of some contractors engaged in the project and as such all these force majeure conditions were erupted as well leading to some delay in raising construction which was beyond control of the opp. party.It is submitted that contractor who was entrusted with the construction work created lot of hurdles and also went into unwanted litigation by initiating arbitration action by filing petition before the District Court as well before Hob’ble High Court and due to said petition work entrusted to contractor came to halt which resulted into beyond control situation of the company. However, inspite of facing these hurdles construction which stopped in between and again restarted and flats completed.The complainant is not coming forward to make the payment of the flat in question and thus is negligent and filed the case with some ulterior motives in order to harass the opp. party. Hence, all the above averments demonstrate that the complainant is negligent and there is no deficiency in services on the part of the answering opp. party and as such alleged case lacks merit and deserves rejection with cost and the alleged case being an abuse process of law is false and frivolous is liable to be dismissed under section 26 of the Consumer Protection Act with costs.

In order to maintain a consumer case and for grant of reliefs under section-14 of the act, one has to make out a case of rendering of deficient services or defect in goods on the part of the opposite parties which complainant failed to make out on the part of the Company for the reasons stated hereinabove and therefore,no cause of action accrued for filing of the case, and further no case of any rendering of any deficient services made out and such alleged case is devoid of merits is liable to be rejected and complainants are not entitled for any of the reliefsas prayed for and alleged case thus, not maintainable is liable to be dismissed with costs.

The contents of para-3 & 4 are admitted to the extent of booking of a flat made by the complainant for which flat was allotted as per terms and conditions contained therein and rest of the contents are denied as wrong. It is submitted that cost and the area of the flat was subject to the terms and conditions of the allotment terms. It is denied that agreed total sale consideration of flat was Rs.25,85,600.00 whereas cost of the flat is more than that. The complainant has deposited sum of Rs.34,52,000.00 as part amount in the cost of the flat and Rs.1,26,909.00 as service tax, total sum of Rs.35,78,907.00 and still huge amount is being due and payable by the complainant as stated in preliminary submission hereinabove and thus complainant is a defaulter and has not come with clean hands , has concealed the non-payment of huge dues of the flat.

It is denied that possession was to be given in 36 months as alleged. On the contrary, it is submitted and reiterated as stated in para-8 hereinabove that construction of a flat was likely to completed in a period of 36 months and 6 months grace period as stated in preceding para, thus in 42 months subject to receipt of requisite building/revised building plans and other approvals and permissions from the concerned authorities; force majeure conditions, restraints or restrictions from courts/authorities; non-availability of materials, disputes with contractors/work force etc. and circumstances beyond the control of the company and also subject to timely payment by the allottee in accordance with the terms of the agreements as stipulated in clause-8 of clause-E of the agreement. It is further submitted that since complainant is a defaulter and is not remitting the outstanding dues of the flat in question and as suchshe herself is negligent and therefore, there is no rendering of any deficient services on the part of the opp. party who did all as per terms of the allotment.

No case of any deficient service made out . The complainant has filed the false and frivolous case in order to evade the liability of outstanding dues of the flat. No legal notice was sent by the complainant. Even otherwise the alleged legal notice is nothing but simply sheer burden of imagination and lies on the part of the complainant who is a defaulter. It is denied that complainant contacted opp. party on phone or visited the site on 23.8.2017. It is not mentioned in para under reply as to when and with whom complainant made contact on phone at the office of the opp. party. It is denied any contact made rather opp. party inspite of hurdles as demonstrated in the preliminary submission raised the constructions of the flats but complainant not coming forward to clear the outstanding dues for the purposes of having an offer of flat which shows complainant is making false allegations with regard to possession.

It is submitted that there is no unfair trade practice or any deficient services on the part of the opp. party and as such no cause of action accrued for filing of the case which thus is false and frivolous and in consequence complainant is not entitled for any of the reliefs as prayed for and the alleged case as such is not maintainable and is liable to be dismissed with exemplary cost under section 26 of the Act.

From the perusal of the pleadings of both the parties, it is clear that the opposite party allotted a unit to the complainant vide allotment letter dated 30 March 2011. The complainant has stated that the delivery of possession was to be given within 36 months but the opposite party has submitted that after 36 months there was grace period of six months too. We have taken this period as 42 months according to the statement of the opposite party . The sale deed was executed on 20 August 2018 and the delivery of possession was an integral part of the sale deed meaning thereby that the delivery of was also given on the date of the execution of the sale deed that is 20 August 2018. If the delay is calculated in terms of months, it comes 45 months. It means that the delivery of possession has been given after 45 months (excluding the grace period of 42 months).

Many averments have been made by the opposite party regarding some force majeure, increase of the area of the plot et cetera et cetera. It is hardly to understand that when a layout plan has been sanctioned, how the area increases or decreases. It clearly shows that the seller was not vigilant or he did not submit their layout plan to the authority before selling it. If it has happened so, there is clearly deficiency in service and it is an unfair trade practice on the part of the seller. It was the duty of the seller to submit a measured layout plan before the authority for sanction and after sanction of the layout plan the public at large may be invited to invest or to apply for allotment of land or flat. In this case if it would have been done , there should not be any increase or decrease in the plot. Delay is delay and it is only on part of the seller. So in this case we are of the opinion that the seller is liable to pay compensation/damages/cost to the complainant for a period of 45 months delay.

In this regard we have to keep in mind the following judgement of the Hon’ble Supreme Court and Hon’ble NCDRC. It is also to be kept in mind that the area of the plot is 1200 ft² and we are not considering the area of increased plot for the purpose of calculating damages/compensation/cost et cetera. First it is better to go through the following landmark judgements of the Supreme Court and Hon’ble NCDRC.

In Priyanka Mittal &Anr Vs Parsvnath Developers Ltd &Anr ( NCRC) , appeals arise out of single order of State Commission, hence, decided by common order. These appeals have been filed against the order dated 25.2.2015 in Complaint Nos. 18 of 2013- Nalin Bhargava &Anr. Vs. Parsvnath Developers Ltd. &Anr.; 34 of 2013- Jasleen Viswanathan &Anr. Vs. Parsvnath Developers Ltd. &Anr; 58 of 2011- Janmejai Mani Tiwari Vs. Parsvnath Developers Ltd. &Anr; 68 of 2013- Indu Singh Vs. Parsvnath Developers Ltd. &Anr.; 69 of 2013- Poonam Sagar Vs. Parsvnath Developers Ltd. &Anr.; 86 of 2010- Priyanka Mittal &Anr. Vs. Parsvnath Developers Ltd. &Anr.; 101 of 2011- Mohd. Aslam Khan &Anr. Vs. Parsvnath Developers Ltd. &Anr.; 130 of 2012- Dr. Sunil Kr. Singh &Anr. Vs. Parsvnath Developers Ltd. &Anr; 49 of 2012- Neera Mittal &Anr. Vs. Parsvnath Developers Ltd. &Anr; 74 of 2011- Deepak Bhalla Vs. Parsvnath Developers Ltd. &Anr.; 87 of 2010- Syed Gufran Ali Alvi&Anr. Vs. Parsvnath Developers Ltd. &Anr.; 96 of 2011- Uppasana Malik Vs. Parsvnath Developers Ltd. &Anr.; 175 of 20130- Umesh Chandra Dixit &Anr. Vs. ParsvnathDevelopersLtd. &Anr.; 97 of 2011- Pravin Kumar Goel &Anr. Vs. Parsvnath Developers Ltd. &Anr. which complaints were partly allowed.

The Hon’ble NCDRC held that:

“Brief facts of the cases are that opposite parties/respondents are engaged in the activity of housing construction and accordingly they have launched a project named as Parsvnath Planet situated in Gomti Nagar, Lucknow. The project was demonstrated to be very lucrative and made attractive to the vendees, in order to procure/collect money from the needy persons demonstrating themselves to be excellence in the field of construction activity as compared to other builders and assured the buyers/complainants that it has been duly approved by the Lucknow Development Authority and necessary permission has also been obtained from them. The emphasis was made by the opposite parties that the possession of the Unit shall be given within a scheduled period of 36+6=42 months stipulated in agreements executed in between the parties for the project launched in the year 2006. The complainants/appellants attracted by the promise and assurance of the opposite parties, somehow managed and arranged the money from their personal sources as well as on loan at attractive rate of interest and the hard earned money was paid by them to the opposite parties in a hope that the possession of the units shall be provided to them in the year 2009 and they can leave peacefully in their own houses, since the complainants are living in rented houses. The complainants visited the construction site of the opposite parties after depositing the entire amount, where it was revealed that the construction activities were on halt and the persons available on the site told the complainants that the apartments are likely to be completed till 2015. Even the partial construction done by the opposite parties was defective and did not match the specifications provided in the agreement. The complainants were shocked on hearing it and observing the site. The complainants immediately contacted the Area Manager, who told the complainants that there is some delay in the construction of the apartment and the apartments shall be ready till June, 2010. The complainants have to repay the amount taken on loan alongwith interest without getting the possession of the allotted units causing irreparable loss and injury to them. The complainants have come to know that the opposite parties have invested the funds earmarked for this project into their other projects in other city due to which they have not been able to complete the project in time. Besides this, it has also come to the light that although the opposite parties had collected huge funds from the buyers but in spite of that the opposite parties have miserably failed to pay the dues of Lucknow Development Authority which forced the Lucknow Development Authority to issue coercive measures against the opposite parties for the recovery of their dues. Alleging deficiency on the part of opposite parties/ respondents, complainants filed separate complaints before State Commission. Aggrieved by the order of Hon’ble State Commission, these appeals preferred before Hon’ble National Consumer Disputes Redressal Commission.

Hon’ble NCDRC discussed various case laws and after hearing the parties held:

“Learned Counsel for appellants submitted that as complainants have been deprived of possession for a long period beyond agreed period, it amounts to restrictive trade practice under and complainants are entitled to get compensation. Section 2 (nnn) runs as under:- means a trade practice which tends to bring about restrictive trade practice manipulation of price or its conditions of delivery or to affect flow of supplies in the market relating to goods or services in such a manner as to impose on the consumers unjustified costs or restrictions and shall include- Delay beyond the period agreed to by a trader in supply of such goods or in providing the services which has led or is likely to lead to rise in the price; Any trade practice which requires a consumer to buy, hire or avail of any goods, or, as the case may be, services as condition precedent to buying, hiring or availing of other goods or services; Perusal of aforesaid provision reveals that when opposite party delays in delivery of goods which leads to rise in the price of goods meaning thereby, more price is charged from complainant, it amounts to restrictive trade practice. In the case in hand, opposite party on account of delayed delivery of possession is not charging higher rate than the agreed rate for delivery of possession of flat, so, it does not fall within the purview of restrictive trade practice under Admittedly, agreements were executed in 2006 and as per agreements, possession of flats was to be delivered within 42 months, meaning thereby, possession was to be given in the year 2009-2010 and possession has not been handed over so far though year 2016 has started. No doubt, complainants are entitled to get penalty amount for delayed delivery of possession as per clause 10 ( c) of the agreement but opposite party cannot be permitted to avail benefit of aforesaid clause for indefinite period. This penalty clause should be allowed for the benefit of parties for a limited period and in the cases in hand, I deem it appropriate to extend applicability of aforesaid clause for a period of one year beyond 42 months and after that, complainants are certainly entitled to compensation. Opposite party cannot be allowed to avail huge funds of complainants by paying merely Rs. 5/- per sq. ft. for example, complainants who have purchased flat measuring 164.901 sq. mtr., they have made payment of about Rs. 31.00 to 32 lakhs and in the garb of clause 10 (c), opposite party is paying penalty @ approximately Rs. 9,000/- per month against enjoying funds more than Rs. 30.00 lakhs. As complainants have been deprived to shift to their flats for a long period which would not only have given them satisfaction of living in their own house but also have raised their social status and opposite party has enjoyed funds of complainants for a long period, I deem it appropriate to allow compensation @ Rs. 15,000/- p.m. to the complainants who have applied for flats upto 175 sq. mtr and Rs. 20,000/- per month to complainants who have applied for flats above 175 sq. after 54 months of execution of agreement till delivery of possession.

Against this judgment, parties went to Hon’ble Supreme Court. The judgment of Hon’ble Supreme Court is:-

In Nalin Bhargava vs Parsvnath Developers Ltd. CA 6662/2018 @ SLP(C) 7596/2016 etc and other related civil appeals on 13 July, 2018 , Hon’ble Supreme Court held:-

“Leave granted in all the special leave petitions.CA 6662/2018 @ SLP(C) 7596/2016 etc.

It is submitted by Mr. M.L. Lahoty, learned counsel appearing for the appellants in all the appeals that the possession has been handed over and the deficiencies have been removed and, therefore, he has no grievance. However, Mr. Lahoty would insist that there should be imposition of costs as compensation. Mr. Sachin Datta, learned senior counsel appearing for the developer has raised objections with regard to imposition of costs.

Having heard learned counsel for the parties, we are of the considered opinion that the cause of justice would be best subserved if each of the appellants in the present appeals are given Rs.1,50,000/- (Rupees one lakh fifty thousand only) per flat, towards costs. When we say “cost”, we mean costs alone and nothing else.”

In the case of Kolkata West International City Pvt. Ltd. Vs. DevasisRudra[Civil Appeal No. 3182 of 2019 @ SLP (C) No(S). 1795 of 2017] judgement delivered on 25.03.2019 , the Hon’ble Supreme Court has held:-

“Interestingly, where the buyer is in default, the agreement stipulates that interest at the rate of 18 per cent from the date of default until the date of payment would be charged for a period of two months, failing which the allotment would be cancelled by deducting 5% of the entire value of the property. The agreement was evidently one sided. For a default on the part of the buyer, interest at the rate of 18% was liable to be charged. However, a default on the part of the developer in handing over possession would make him liable to pay interest only at the savings bank rate prescribed by the SBI. There is merit in the submission which has been urged by the buyer that the agreement was one sided.

After considering all the facts and circumstances and also keeping in mind as discussed above we are of the opinion that the complainant is entitled to the following reliefs: