Haryana

Panchkula

CC/323/2021

MOHAMMAD SAKIB. - Complainant(s)

Versus

GREEN SPACE INFRA-HEIGHTS PVT.LTD. - Opp.Party(s)

VIVEK SURI & MRS.ANJU SURI.

16 Aug 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,  PANCHKULA

 

                                                       

Consumer Complaint No	:	323 of 2021
Date of Institution	:	10.08.2021
Date of Decision	:	16.08.2022

 

 

Mohammad Sakib aged about 27 years S/o Mohammad Yaseen R/o House No.1374, Saini Vihar, Phase-3, Baltana, Zirakpur.

 

                                                                           ….Complainant

 

Versus

1.     M/s Green Space Infraheights Private Ltd. Registered Office: 306, Indra Parkash Building, 21-Barakhamba Road, New Delhi-110001 through  Managing Director, Sh. Sandeep Jain.

2.     M/s Green Space Infraheights Pvt. Ltd. Corporate Office: 406, Ist & 2^nd Floor, Sector-20, Panchkula through its Branch Manager.

….Opposite Parties

 

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019.

 

Before:              Sh. Satpal, President.

Dr. Pawan Kumar Saini, Member.

Dr. Sushma Garg, Member.

 

 

For the Parties:   Sh.Vivek Suri, Advocate for the complainant.  

                        Sh.Manoj Lakhotia, Advocate for OPs No.1 & 2(defence                    struck off vide order dated 02.05.2022).

ORDER

(Dr.Pawan Kumar Saini, Member)

1.             The brief facts of the present complaint are that the OPs being the builder had floated an affordable Group Housing Colony “Shree Vardhman Green Space situated at NH-73, Sector-14 Panchkula Extension II Panchkula Haryana. The complainant applied for the flat vide application no.001731 and deposited the amount of Rs.1,07,935/-. The draw of lots was held on 25.08.2015. The complainant was allotted flat no.706, Tower no.C, 7^th floor having a super build up area of 780 sq. feet and carpet area of 500 sq.feet and balcony of 100 sq.feet as per the allotment letter dated 26.08.2015. A Flat Buyers Agreement was entered into between the OP No.1 and the complainant on 13.02.2016 and the basic price of the flat was Rs.20,94,000/-. The basic price included the external development charges and infrastructure development charges and it also included the cost of providing electric wiring and switches and as per condition no.8 the proposed time to offer possession of the Flat was 4 years from the date of approval of building plan. It was further stipulated in Condition no.8(b) that on completion of the construction a final call notice issued for remittance of all the dues within 30 days thereof and takes possession of the flat after execution of the sale deed. The complainant had opted for the construction linked plan and has paid a sum of Rs.21,91,183/- and he made the payment for the period from 30.05.2015 till 09.10.2018. Though, the OPs had assured the complainant that they would be delivering the possession within 4 years from the date of approval of the building plan or grant of environment clearance. The building plans as per Clause-C of the Buyer Purchaser Agreement have approved on 09.12.2014. Further, the complainant has been made the payment promptly as and when demanded by the OPs and has already paid the entire amount but till date the possession has not been handed over. It is also stated that as per the terms and conditions of the agreement in case of delay of payment on account of the allottee the OPs had to charge interest @15% per annum for the delayed payment whereas the agreement is totally silent that in case of default in not handing over the possession. Feeling aggrieved, the complainant has served a legal notice upon the OPs on 23.12.2020 but till date the possession has not been handed over. Due to the act and conduct of OPs, the complainant has suffered a great deal of financial loss and mental agony, harassment; hence, the present complaint.

2.             Upon notice, the Ops have failed to file the written statement despite several opportunities and accordingly, their defence was ordered to be struck off vide order dated 02.05.2022. However, the written arguments have been placed on record on behalf of the Ops wherein allotment of the alleged flat and execution of the flat buyer agreement has been admitted. The OPs have denied any lapse and deficiency on their part stating that the complainant by not following payment schedule arbitrarily have themselves breached the terms and conditions of the flat buyer agreement. It is averred that the complainant was fully aware that the project in question was a project under the Affordable Housing Policy, 2013 of the Govt. of Haryana, which contained strict checks and balances to protect interests of all stakeholders with special emphasis on the protection of rights of the potential purchases of the Flats.  It has been averred that the development work at site were started with full pace after grant of clean environment clearance by the concerned authority on 15.03.2016. It is further averred that the construction remained stopped for a considerable period due to force majeure situation which had arisen since January, 2020. Apart from above, the status of the complainant as a consumer has been disputed and further, it is stated that the complaint is not maintainable before the Consumer Commission as complainants have concealed the material facts and have not come with clean hands.

 

3.             The learned counsel for the complainant has tendered affidavit as Annexure C/A along with documents Annexure C-1 to C-13 in evidence and closed the evidence by making a separate statement.

4.             We have heard the learned counsels for the complainant as well as OPs No.1 & 2 and gone through the entire record including the written arguments filed by the learned counsel for OPs No.1 & 2, minutely and carefully.

5.             Admittedly, the complainant had applied for the allotment of a flat having super built up area, measuring 780 sqr. feet, vide his application no.001731(Annexure C-1) by paying  a sum of Rs.107935/- to OPs as booking amount, vide acknowledgment/receipt Annexure C-1, in the housing project, namely, “Shree Vardhaman Green Space” located in Village Billah, Sector-14 Panchkula, Extn.II, District Panchkula, to be developed by the OPs, wherein he was allotted the flat no.706, floor 7^th tower ‘C’ vide allotment letter dated 26.08.2015(Annexure C-2). Thereafter, Flat Buyer’s Agreement(Annexure C-3) containing various terms and conditions was executed between the parties on 13.02.2016. The payment amounting to Rs.21,85,183/- made by the complainant vide several receipts qua the price  of the said flat is not in dispute. The main grouse of the complainant is that despite his making substantial payment qua price of the flat, the project in question has not been completed and thus, has filed this complaint seeking the refund of deposited amount of Rs.21,91,183/-along with compensation of Rs.1,00,000 and Rs.50,000/- on account of mental agony and physical harassment and litigation charges respectively.

6.             The objection is that the issue involved in the adjudication of the present complaint cannot be decided in a summary proceeding as the adjudication would require extensive evidence to be led by the parties, involving examination and cross-examination of witnesses, for proper adjudication. This objection is rejected as the controversy can be adjudicated in a proper and fair manner on the basis of documentary evidence alone and therefore, no merit is found in this objection.

7.             On merits, it is strongly contended that as per Clause 4(a) of the Flat Buyer’s Agreement(Annexure C-3), it was incumbent upon the complainant to make timely payments of the installment qua the basic price of the flat and other charges as the same is/was the essence of the agreement. It is contended that the complainant defaulted, on various occasions, in making the payment of due installment. It is strongly argued that the complainants themselves have breached the terms of the Flat Buyer’s Agreement(Annexure C-3), while not making the timely payment and thus, the complaint is liable to be dismissed. It is contended that the default in payment committed even by one allottee in the multi-storied group housing project adversely affected the development of the other units as well as financial planning and the pace of the project etc. The learned counsel denying  any lapse and deficiency on the part of the Ops invited our attention towards the submissions made in Clause (2) of para ‘B’ of the written submissions, wherein it is contended that the project has got delayed on account of force majeure conditions, which had arisen w.e.f. Jan.2020. It is further contended that the refund of the amount to the complainant would jeopardize the completion of the project and impact the remaining home buyers as the project is nearing the completion. Concluding the arguments, the learned counsel prayed for dismissal of the present complaint being baseless and meritless.

8.             After hearing the rival contentions of the learned counsels for both the parties and perusing the entire record available on the file, it is found that the OPs had collected the amount qua price of the flat from various consumers/allottees including the complainant even before the receipt of necessary approvals/sanctions. As per admitted factual position, the Ops had collected a sum of Rs.5,41,393/- till 31.08.2015, whereas the Flat Buyer’s Agreement was executed on 13.02.2016. As per version of the Ops, environmental clearance for the project was granted by the State Environment Impact Assessment Authority, Haryana on 15.03.2016; as such, the opposite parties had collected huge amount from the innocent and gullible customers without obtaining the required permissions and sanctions from the competent authorities. A builder is legally bound to first obtain the requisite permissions and sanctions from the Authorities and then collect the consideration money from the general public interested to buy units in its project. In Kamal Sood Vs. DLF Universal Ltd., III (2007) CPJ 7 (NC), it was held that a builder should not collect money, from the prospective buyers, without obtaining the required permissions, such as zoning plan, layout plan, schematic building plan etc. It is the duty of the builder, to obtain the requisite permissions or sanctions, such as sanction of construction etc., in the first instance, and, thereafter, recover the consideration money from the purchasers of the flats/buildings. The ratio of law, laid down in the aforesaid case, is squarely applicable to the facts and circumstances of the instant case. If the bookings are made and the booking amount is collected, before obtaining the necessary sanctions, permissions, licences and without getting the necessary approvals, the same amounting to indulgence into unfair trade practice, on the part of the builder. This was reiterated by the Hon’ble National Commission, recently in M/s Ittina Properties Pvt. Ltd. & 3 Ors. Vs. Vidya Raghupathi & Anr., First decided on 31 May 2018., as under:- Appeal No. 1787 of 2016, This Commission in Brig. (Retd.) Kamal Sood Vs. M/s. DLF Universal Ltd., (2007) SCC Online NCDRC 28, has observed that it is unfair trade practice on the part of the Builder to collect money from the perspective buyers without obtaining the required permission and that it is duty of the Builder to first obtain the requisite permissions and sanctions and only thereafter collect the consideration money from the purchasers. In view of the aforesaid legal position, the OPs have indulged into unfair trade practice while collecting the amount from the buyers/consumers even before obtaining the necessary approvals/ sanctions.

9.             Further, the unfair trade practice on the part of the OPs is evident from the fact that as per the terms and conditions of the Flat Buyer’s Agreement(Annexure C-3), the complainant was liable to be penalized in the event of default of installment qua the price of the flat whereas there is no such clause penalizing the OPs in the event of their failure to deliver the possession within the stipulated period of four years.

10.            The last deficiency on the part of the OPs, which is very important, is evident from the fact that the OPs have failed to deliver the possession of the flat as stipulated vide terms and conditions of the Flat Buyer’s Agreement. According to Clause C-8 of the Flat Buyer’s Agreement(Annexure C-3), it was incumbent upon the OPs to offer the possession of the plot within a period of 4 years from the grant of environmental clearance, which was admittedly granted on 15.03.2016. As per version of OPs, the project is at the final stage and nearing completion; however, no documentary evidence in support of contention of OPs has been placed on record. It is well settled legal proposition that mere bald assertions, which are not corroborated and substantiated by any adequate, cogent and credible evidence, do not carry any evidentiary value. Further, it is also not the case of the OPs that they have applied for the occupation certificate qua the completion of the said project, wherein the flat of the complainant is located. Needless to mention here that occupation certificate is granted by the competent authority on the basis of certificates/clearances issued by the various authorities e.g. stability certificate issued by the structural engineer, NOC from Fire Authorities & electrical fitness certificate etc. 

11.            Recently, the Hon’ble National Commission in consumer case no.2562 of 2018 titled as Sangeeta Agarwal & Anr Vs. M/s Chintels India Ltd. vide its order dated 27.05.2022  has held that plot  purchaser cannot be made to wait for an indefinite period of time hoping to obtain possession and that seeking refund of amounts deposited is a valid Redressal. The Para No.14 of the said order is reproduced as under:-

The Hon’ble Supreme Court in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra in Civil Appeal no.3182 of 2019 decided on 25.03.2019 as well as in Pioneer Urban Land and Infrastructure Ltd. Vs. Govindan Raghavan and connected matter in CA No.12238 of 2018 decided on 02.04.2019-(2019) 5 SCC 725, has held that flat purchasers cannot be made to wait for an indefinite period of time hoping to obtain possession and that seeking refund of amounts deposited is a valid Redressal. In the present complaint, there is neither a valid occupation certificate nor can the opposite party claim to have made a proper offer of possession. Therefore, there is, merit in the complainants’ averments.

 

12.            In view of the aforementioned factual and legal position, we conclude that OPs are liable to refund the deposited amount alongwith interest jointly and severally.

13.            As a sequel to above discussion, we partly allow the present complaint with the following directions to the OPs No.1 & 2:-

1. To refund a sum of Rs.21,85,183/- to the complainant along with interest @ 9% per annum w.e.f. the date of each deposit  till actual realization.
2. To pay an amount of Rs.15,000/- to the complainant on account of mental agony and harassment.
3. To pay an amount of Rs.5,500/- as cost of litigation charges.

 

14.            The OPs No.1 & 2 shall comply with the order within a period of 45 days from the date of communication of copy of this order failing which the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, against the OPs No.1 & 2. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced on:16.08.2022

 

 

 

Dr.Sushma Garg          Dr. Pawan Kumar Saini         Satpal          

           Member                          Member                     President

 

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

 

                                        Dr. Pawan Kumar Saini,                                

      Member