DR.INDER JIT SINGH, MEMBER

1. The present Consumer Complaint (CC) has been filed by the Complainants against Opposite Party (OP) as detailed above, inter alia praying for directions to the OP to:-

1. Handover the clear, defect free possession of the apartment in a habitable condition with all amenities expeditiously;

2. Waive off and reverse the unjustifiable demands raised towards common area maintenance charges and holding charges interest or any other related charges levied thereon till possession;

3. To compensate for the loss of income tax rebate which the complainants have not been able to avail pending execution and registration of conveyance deed alongwith possession till date.

OR in the alternate:

4. To refund the entire sale consideration inclusive of the premium charges paid by the complainants to the former buyer, with interest @18% p.a. from the date of respective payments and pendent lite;

5. Compensate for delay in delivery of possession @18% starting from the end of 19 months from the date of signing of the Apartment Buyers Agreement;

6. Make payment of Rs.10,00,000/- as compensation for harassment and inconvenience and suffering;

7. Pay Rs.5,00,000/- towards costs for litigation.

2. Notice was issued to the OP.  Parties filed Written Statement/Reply, Rejoinder, Evidence by way of an Affidavit and Written Arguments/Synopsis etc. as per details given in the Table at Annexure-A.  The details of the flats allotted to the Complainant(s)/other relevant details, based on pleadings of the parties and other records of the case are also given in the Table at Annexure-A.

3. It is averred/stated in the Complaint that:

1. The complainants entered into Apartment Buyer’s Agreement with the Opposite Party on 03.09.2012 for purchase of Apartment No. H-1103, 11^th Floor, Tower No. H, admeasuring 2262 sq.ft. with two car-parking spaces in the Project of the OP namely ‘Godrej Frontier’ situated at Sector-80, Gurgaon-Manesar Urban Complex, Gurgaon.  The total consideration for the said Apartment was Rs.1,02,20,053/-. As per Agreement it was agreed that the apartment would be ready for occupation within 19 months with a grace period of six months, i.e., 03.10.2014. The complainants have made total payment of Rs.1,07,33,860/-.  Out of which Rs.1,02,81,460/- was paid to the OP towards sale consideration and Rs.4,52,400/- was paid towards premium to Mr. Raman Sobti (the Former Buyer), who booked the said Apartment with the OP on 23.12.2010 and the apartment was allotted by the OP vide allotment letter dated 23.12.2010. An Agreement to sell was executed between the former allotee Mr. Raman Sobti and the Complainants on 22.08.2012. The complainants were issued allotment letter on 01.09.2012.

2. The Complainants made full payment for the sale consideration of the Apartment in the year 2014 but are deprived of the basic rights of holding valid possession of the said Apartment in habitable condition with valid right, title, interest in the apartment alongwith registration.  The OP failed in fulfilling their obligation under the ABA, served a demand on 03.01.2017 for payment of holding charges and maintenance charges.  The complainants on various occasions and through repeated follow ups since December 2017 vide various emails, communications, calls and visit to the Godrej Office requested the OP to discharge its obligations  under the ABA, but the same remain unattended by the OP.  The complainant is not just serving the home loan instalment every month for an amount of Rs.93,266/- but have suffered huge loss on account of foregoing the income tax benefit which they were rightly entitled to claim on the huge amount of interest paid on account of home loan since 2014 as the valid possession was not given to the complainants to their benefit.  The complainants have been deprived of the opportunity of either self-occupancy of the Apartment for their benefit or reasonable rent over the Apartment. Hence, the complainants have filed complaint before this Commission.

4. The OP in their written statement/reply stated that:-

1. The complainants are not consumers as defined in Section 2(1)(d) of the Consumer Protection Act, 1986.  The present complaint is not maintainable for want of locus to invoke the jurisdiction of this Hon’ble Commission.  The complainants purchased the apartment for commercial purpose/for gaining profit, what naturally follows as a consequence is that, such person cannot invoke the jurisdiction of this Commission.  The complainants themselves have averred that owing to the alleged deficiency on the part of the OP, the complainants had to suffer a loss of reasonable rent over the apartment in question.  The aforesaid fact establishes that the complainants have invested in the flat for commercial gains and not for their own use.  The complainants have already an accommodation in the same city, purchased the apartment for the purpose of earning rental profits and with a view to earn commercial gains.  Hence, this Commission lacks the jurisdiction to entertain and adjudicate the present dispute.

2. As per section 24 A of the said Act, limitation to approach this Commission is two years from the date on which the cause of action has arisen.  The present complaint alleges delay in the offer of possession by the OP.  As per ABA dated 03.09.2012, the OP was obliged to offer possession of the apartment in question on or before 03.10.2014, without admitting that on 03.10.2014 a cause of action accrued in favour of the Complainants, the complaint stands barred by limitation, as the limitation for filing the complaint under reply lapsed on 03.10.2016.  The complaint has been filed with a delay of more than two years.

3. It is contended that the complainants have challenged the legality of the possession notice dated 01.11.2014 on the alleged ground that the possession notice is irregular, defective and pre-mature. OC was received on 16.10.2014 and possession notice was issued on 01.11.2014, complainants have invoked the jurisdiction of this Commission after a period of more than 4 years.  The complaint is barred by limitation.

4. The complainants have made a complaint with regard to the afore-said issue before the Senior Town Planner (STP), Gurugram and had also raised an issue with regard to same even before Directorate of Town & Country Planning (DTCP) Haryana, for the same grievance.  The alleged grievance is a product of an ulterior motive, the same cannot be allowed to be raised before various forums as the same amounts to multiplicity of proceedings.

5. The complaint is bad of non-joinder of proper party.  The complainants have not impleaded Frontier Home Developers Pvt. Ltd. As a party, the complainants are aware of the fact that Frontier had applied for various governmental sanctions and is also signatory to the ABA, therefore, a reply on behalf of the said party is necessary in this regard for proper adjudication of the issues raised by the complainants.

6. It is alleged by the complainants that the title to the project land is not clear, proper and/or marketable.  The development rights of the OP, as well as the title are squarely mentioned and explained in the ABA, which is a document, relied upon and filed by the complainants themselves.  It is also contended that the detail of the title has been duly captured in the ABA and vide clause 6.2 of ABA, the complainants had inspected all the documents.  After fully satisfying themselves with regard to the rights, title and interest possessed by the OP, the complainants executed the ABA. The complaints have made this contention with ulterior motive to harass the OP. 

7. It is also contended by the OP that after complying with the sanctioned building plan and having completed the construction of the residential towers, made an application to DTCP for grant of OC on 24.12.2013 and vide another application dated 12.04.2014 the OP wrote to the DTCP seeking grant of OC in respect of the amended nomenclature and the DTCP, upon being satisfied in regard of habitability of the project and after checking all the requisite compliances, granted OC dated 16.10.2014 in respect of all the towers having the old nomenclature.  Thereafter, all the compliances, the OP  offered possession to the complainants vide possession notice dated 01.11.2014.  Alongwith possession notice, the OP also enclosed demand of Rs.4,46,088/- towards stamp duty, registration charges one time electric connection charges and the advance maintenance charges in terms of the Allotment letter dated 01.09.2012. The complainants were informed that they were obliged to clear the balance dues within 30 days’ from the issuance of the notice, failing which, the complainants would be penalized with an interest of 18% with respect  to the period of delay and it was also informed to the complainants that in case the complainants failed to take the possession of the said apartment within 30 days from the date of the notice, then they would be liable to tender the holding charges to the OP. In spite of being in receipt of notice, the complainants chose not to adhere to the same as well as the terms and conditions of the ABA, which is evident from the fact that no payment has been made by the complainants to the OP, after receiving the possession notice and the complainants have after a delay of approximately four years have approached before this Commission with ulterior motives.
8. It is further contended by the OP that in respect of change of nomenclature of the towers of the project, and for the sake of clarification and uniformity of record, Frontier applied to the Senior Town Planner (STP), Gurugram for changing the nomenclature of towers of the said project on 03.10.2016.  Thereafter, Frontier was informed by the STP, Haryana to approach the DTCP in regard to the change in nomenclature, vide letter dated 17.10.2016.  On 24.10.2016, OP applied with the DTCP for change in nomenclature of towers. It is further contended by the OP that Section 3 read with Section 11 of the Haryana Apartment Ownership Act, 1983, makes it obligatory for the owners of the concerned land to file a Deed of Declaration.  In the present case, the Deed of Declaration dated 06.11.2015, filed in terms of the afore-said sections of the Haryana Apartment Ownership Act, 1983.  The change of the nomenclature has also been captured therein.  The officials of the Frontier made numerous follow ups with DTCP for approval with respect to the change of nomenclature of towers. However, being constrained by persistent inaction on the part of the DTCP, Frontier was constrained to once again seek the concerned approval vide its reminder letter dated 30.03.2018.  On 11.04.2018, OP gave its undertaking to the Sub-divisional Magistrate, Gurugram, whereby it was mentioned that the nomenclature had been sought to be revised without changing the location, area or specifications of the apartments.  On 01.08.2018, the DTCP granted the in-principle approval to the Frontier, with respect to the change in nomenclature.  Apart from the complainants, no other person/allottee expressed any objection to the change in tower nomenclature. The OP also requested several times to the Dy. Commissioner, Gurugram to resume conveyance deed registration of the flats in the said project.  After regular follow ups, STP, Gurgaon has submitted its report to DTCP and the same is under consideration.

9. It is also contended that OP was also in touch with the local Gram Panchayat in respect of revenue raasta which ends within the project land, however the same is not being used by the local villager.  The OP submitted an application for exchange of the land encompassing the revenue raasta to the Panchayat, in terms of Section 5 of the Punjab Village Common Lands (Regulation) Act, 1961 read with Rule 5 of the Punjab Village Common Lands (Regulations) Rules, 1964.  Subsequently, the Panchayat issued a letter dated 05.07.2017, therein allowing the OP to use the revenue raasta, till the OP obtains a nearby land of equal value, so as to exchange the same with the revenue raasta. 

5. Heard counsels of both sides.  Contentions/pleas of the parties, on various issues raised in the Complaint, based on their Complaint/Reply, Rejoinder, Evidence, Written Arguments, and Oral Arguments advanced during the hearing, are summed up in Table at Annexure-B.

6. During the arguments, the complainants stated that they are pressing for relief under prayer clause (d), (f) and (g) of their complaint, seeking refund of the entire sale consideration and are not pressing for relief as prayed under clause (a), (b), (c) and (e) viz for possession. The complainants further stated that, as on date, even after 5 years of filing the complaint, the following issues as raised in the complaint remain unresolved due to which complainants now wish to seek refund only.

• Defects/snag/infirmities in the Apartment as well as the Basement of the tower where water, seepages and leakages leading to flooded Basements have still not been rectified, and are pending till date.

• Issue of Nomenclature of Towers is still pending before DTCP due to which the Registrations of the Apartments are not happening.

• Issue of encroachment of Revenue Rasta still persist and same is not cleared or exchanged even till date. 

-Failure to transfer the right, title and interest in the Apartment along with all the easements and get the registration of conveyance deed of the Apartment for last 6 years out of 8 years since 2014. Still in continued suspension since March 2018 till date.

These issues have been briefly discussed in Table at Annexure-B.

7.  The objection that the Complaint is barred by limitation is not accepted. OP contends that the complainants have challenged the legality of the possession notice dated 01.11.2014 by institution a consumer complaint on 26.10.2018, i.e., nearly four years after the cause of action arose. The OP have failed to deliver the possession of the unit to the complainants, complete in all respects, after removal of various defects/solving issues relating to nomenclature of towers and revenue raasta till date. Therefore, the cause of action is continuing. It was held by Hon’ble Supreme Court in Meerut Development Authority Vs Mukesh Kumar Gupta, IV (2012) CPJ 12 “the failure to deliver possession of the flat constitutes a recurrent continuing cause of action”.  The contention that complainants are not consumers as they claim in the complaint that they have been deprived of benefit of reasonable rent over the apartment for the last 4 years, is also rejected as no such evidence of complainants having bought this unit for commercial purpose has been adduced by the OP in this regard.

8. In the instant case, even after a gap of more than 6 years, OP has not been able to resolve the issues relating to change in nomenclature of towers, and exchange of land for revenue raasta with the gram panchayat due to which it could not register the conveyance deed in favour of complainants free from defects; leading to an inordinate delay of more than 8 years from the committed date as per agreement in handing over the possession of flat, which amounts to deficiency in service on the part of OP. The complainants cannot be made to wait for an indefinite time. Hence, the complainants in the present circumstances have a legitimate right to claim refund alongwith fair delay compensation/interest from the OP.

9. For the reasons stated hereinabove as well as observations in column 5 of Table at Annexure-B, and after giving a thoughtful consideration to the entire facts and circumstances of the case, various pleas raised by the learned Counsel for the Parties, the Consumer Complaint is allowed/disposed off with the following directions/reliefs: -

(i) The OP shall refund the entire principal amount of Rs.1,07,33,860/- (Rs.one crore seven lakh thirty three thousand eight hundred sixty only) to the complainants, alongwith compensation in the form of simple interest @ 9% per annum from the date of each payment till the date of refund.  The principal amount refundable mentioned in this para is subject to verification of actual amount paid by the complainants based on receipts etc.

(ii)  The OP shall pay a sum of Rs.25,000/- as cost of litigation to the  complainants.

(iii)  The payment in terms of this order shall be paid within three months  from today.

(iv) In case the complainants have taken loan from Bank(s)/other financial institution(s) and the same/any portion of the same is still outstanding, the refund amount will be first utilized for repaying the outstanding amount of such loans and balance will be retained by the complainants.  The complainants would submit the requisite documents from the concerned bank(s)/financial institution(s) to the OP four weeks from receipt of this order to enable them to issue refund cheques/drafts accordingly.

10. The pending IAs, in the Consumer Complaint, if any, also stand disposed off.