Chandigarh

StateCommission

A/177/2023

SAMIR KUMAR BISWAS - Complainant(s)

Versus

HERO REALITY PRIVATE LIMITED - Opp.Party(s)

JAGAN NATH BHANDARI ADV.

27 Dec 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T. CHANDIGARH

[Additional Bench]

 

Appeal No.

:

A/177/2023

Date  of  Institution 

:

31/07/2023

Date   of   Decision 

:

27/12/2023

 

 

 

 

 

1.     Samir Kumar Biswas son of Sh. Soshil Chandra Biswas.

 

2.     Sumana Chanda wife of Sh. Samir Kumar Biswas.

 

Both residents of House No. ME-504, Indian Institute of Science Education and Research, District S.A.S. Nagar, Sector 81, Mohali, Punjab.

 

2nd address:     House No. 5699-B, Sector 39, West, Chandigarh.

….Appellants

Vs.

 

M/s Hero Reality Pvt. Ltd., Regd. & Corporate Office at 264, Okhla Industrial Estate, Phase-III, New Delhi – 110020.

…. Respondent

 

BEFORE: MRS. PADMA PANDEY   PRESIDING MEMBER

                PREETINDER SINGH      MEMBER

 

PRESENT

:

Sh. Jagan Nath Bhandari, Advocate for the Appellants.

 

 

Sh. Sanjeev Sharma, Advocate for the Respondent.

 

PER PREETINDER SINGH, MEMBER

 

  1.         This appeal is directed against the order dated 16.05.2023, rendered by the District Consumer Disputes Redressal Commission-II, U.T. Chandigarh (for brevity hereinafter to be referred as “the Ld. Lower Commission”), vide which, it partly allowed the Consumer Complaint bearing no.CC/574/2021, by passing the following order:-

“10.   In view of the above discussion, the present complaint is partly accepted along with compensation qua OP No.1. OP No.1 is directed as under:-

i)        To restore the allotment of unit in question, within a period of one month from the date of receipt of a certified copy of this order, without demanding any interest on the payments already made.

ii)       To immediately hand over possession of the apartment/flat complete in all respects to the complainants.

iii)      To issue fresh statement of accounts to the complainants after adjusting, interest, penalty and cost as imposed upon OP No.1 in the present order.

iv)      To pay compensation for causing mental agony and physical harassment to the complainants on account of  deficiency in providing service and adoption of unfair trade practice by cancelling the allotment of unit wrongly and arbitrarily, in lumpsum, to the tune of Rs.1,00,000/- (Rupees One lakh only), to the complainants, within a period of 60 days, from the date of receipt of a certified copy of this order, failing which, the said amount of Rs.1,00,000/-(Rupees One lakh only), shall carry interest @12% p.a. from the date of passing of this order, till the date of its actual realization.”

  1.         For the convenience, the parties are being referred to, in the instant Appeal, as position held in Consumer Complaint before the Ld. Lower Commission.

 

  1.         Before the Ld. Lower Commission, it was the case of the Complainants that they booked an apartment in high rise tower under the project of the Opposite Parties on 25.05.2016 by paying ₹2.5 lacs and the possession time was 42 months. Without issuing allotment letter, Opposite Party No.1 issued demand notice dated 04.06.2016 for ₹3,37,887/- and more than 10% payment includes basis price, PLC, IFMS and club membership charges were received by Opposite Party No.1 till 24.06.2016 before issuing the allotment letter and executing the sale agreement. Subsequently, the allotment letter was issued  on 16.09.2016  in respect of Flat No.1101 in Tower No.T-04, 11th Floor, Hero Homes, Sector 88, SAS Nagar for ₹59,27,350/- including basic price, PLC, IFMS and club membership charges, under the subvention scheme where the payment plan was 10% at the time of booking and 80% as per construction update by the Bank and the remaining 10% at the time of possession. The Opposite Party No.1 created the wrong Builder Buyer Agreement dated 14.10.2016 with wrong date; whereas, the date of agreement should have the first date of payment i.e. 25.05.2016. As per Clause 4 of the agreement, the possession was to be delivered within 36 months with 6 months as grace period (total 42 months) from the date of signing of the agreement or the start of construction. Opposite Party No.1 forced complainants to make a tri-party loan agreement with the HDFC Bank (OP No.2 in the Complaint) before signing (ABA) sale agreement with the Opposite Party No.1. On 08.06.2018, the complainants received an email notice demanding ₹6550.04P which were paid through cheque, but again the complainants were asked to pay ₹23065.04P. On raising protest, Opposite Party No.1 sent a regret vide email 13.06.2019. Despite that, later Builder added same additional amount on the last demand letter on 24.04.2019.  The complainants received e-mail dated 27.06.2019 for extension of Subvention Schemes and Opposite Party No.1 agreed that till 31.03.2020 the subvention would be extended and in case of further delay in possession beyond 31.03.2020 the HRPL/ Opposite Party No.1 shall reimburse the pre-EMI interest, and on this condition, the complainants gave their consent. Opposite Party No.1 delayed the possession beyond promised date i.e. March 2020 and in April, 2020 Opposite Party No.1 stopped paying the pre-EMI to the Bank. Vide email dated 24.11.2020, Opposite Party No.1 took U-Turn and stated that they would give pre-EMI from 24.09.2020 onwards and not before that, but no reasons were assigned for the same.  As per the interest certificate, the complainants paid a sum of ₹3,85,911/- from April 2020 to 13.01.2021  to the Bank and requested to Opposite Party No.1 for reimbursement of the paid pre-EMI in December, 2020 and thereafter, for adjustment of pre-EMI but Opposite Party No.1 did not pay any heed to it.   On 09.03.2021, the complainants received a letter containing offer of possession along with a demand letter dated 13.01.2021 for a sum of ₹8,51,871/- which did not adjust pre-EMI, delay charges despite advanced (prior) request for re-imbursement of the paid pre-EMI as per the subvention schemes. In June 2021 when the complainants did not get the correct demand notice after a number of reminders for corrections, then complainant No.1 himself after adjustment of pre-EMI and other charges (as per various sections mentioned on the payment sheet and the agreement), he paid a sum of ₹2,45,800/- as balance amount came after adjustment and sent an email for issuance of NOC to Opposite Party No.1 and again Opposite Party No.1 did not put any head to it and did not reply till date. Opposite Party No.1 sent threatening emails to complainants to make the payment first only then they will be allowed to visit the premises and further denied to furnish to provide the copy of OC and other approvals. It was alleged that despite 100% payment till date Opposite Party No.1 have not handed over the actual valid physical possession and enjoying their hard earned money, as a result,  the Complainants are paying the interest to Opposite Party No.2. Finally, the complainants got served a legal notice dated 27.08.2021, but to no effect. On 17.08.2021 the complainants received cancellation letter dated 13.08.2021 from Opposite Party No.1 on the basis of Opposite Party No.2's letter dated 26.11.2020 in respect of the unit in question stating that HDFC Bank (OP No.2) had issued letter dated 26.11.2020 to Opposite Party No.1 for cancellation of the unit and refund of loan amount. There was a continuous discussion with Opposite Party No.2 since August 2020 on the pre-EMI payment where, Opposite Party No.1 was kept in the CC loop and Opposite Party No.1 never put a head to it. However, under immense pressure from the Bank, complainants have confirmed the due payment to Opposite Party No.1 and did all the due payments on 10.12.2020. Further, in the response of cancellation letter issued by Opposite Party No.1, the complainant sought response from Opposite Party No.2 on 18.08.2021 and then Opposite Party No.2 sent immediately a withdraw letter dated 19.08.2021, withdrawing the letter dated 26.11.2020 and mentioned that EMI was regularized under the loan account after clearance of all dues on or before 10.12.2020. It was averred that under compelling circumstances, the complainants paid all pre-EMI to the Opposite Party No.2. In response of cancellation letter issued by Opposite Party No.1, the complainants served legal notice dated 21.08.2021 to the Opposite Party No.1 and gave last and final 7 days to withdraw said cancellation letter dated 13.08.2021 and further for settle the accounts and hand over the actual valid offer of possession, but till date Opposite Party No. 1 have not put any head and reply to the said legal notice. It was also averred that by issuing the cancellation letter, Opposite Party No.1 wanted to grab the hard earned money of ₹59,98,254.90 paid by the complainants against the said unit. Hence, the aforesaid Consumer Complaint was filed before the Ld. Lower Commission, alleging deficiency in service and unfair trade practice on the part of the Opposite Party.

 

  1.         In the reply filed before the Ld. Lower Commission, while admitting the factual matrix of the case, Opposite Party No.1 pleaded that the delay of nearly 9 months was not intentional and also attributable due to onset of Covid-9 pandemic. The possession as per the agreement was to be handed over within 42 months from the date of execution of the agreement dated 14.10.2016 and period of 42 months expired on 14.04.2020. The possession was delivered within a reasonable time and delay is not unreasonable.  It was asserted that the complainants did not pay the due amounts and defaulted in the payment of the installments despite issuance of reminders and as such the unit was cancelled on 13.08.2021 and the money was forfeited for default.  Opposite Party No.1 paid the pre-emi charges to the tune of ₹10,89,607/- on behalf of the complainants to the Bank. In totally, a sum of ₹59 lakhs were received from the complainants out of which Rs.48 lakhs was advanced by the Bank and in case of refund, a sum of ₹10,89,607/- paid by it is liable to be deducted, along with amount of forfeiture as the unit was cancelled and the amount forfeited. The remaining allegations have been denied, being false. Denying all other allegations and pleading no deficiency in service, the Opposite Party No.1 prayed for dismissal of the Complaint.

 

  1.         On appraisal of the pleadings of the Complainant and the evidence adduced on the record, Ld. Lower Commission partly allowed the Complaint of the Complainant as noticed in the opening para of this order.  

 

  1.         Aggrieved against the aforesaid order passed by the Ld. Lower Commission, the instant Appeal has been filed by the Appellants/Complainants.

 

  1.         We have heard the Learned Counsel for the Parties and have gone through the evidence and record of the case with utmost care.

 

  1.         The core question that falls for consideration before us is as to whether the Ld. Lower Commission has rightly passed the impugned order by appreciating the entire material placed before it. 
  2.         After giving our thoughtful consideration, to the contentions raised and material on record, we are of the considered opinion, that the instant Appeal deserves to be partly accepted for the reasons to be recorded hereinafter.

 

  1.         It is the case of the Appellants/complainants that the Ld. Lower Commission while passing the impugned order has failed to appreciate the documentary evidence available on record, which resulted into perverse finding.

 

  1.         It is coming out from the record that the factum of purchase of the unit in question by the Appellants/ Complainants in the project of the Respondent/ Opposite Party in the manner stated above, execution of agreement, payments made by the Appellants/Complainants as mentioned in the complaint have not been disputed by the parties.  Learned counsel for the Appellants raised a plea that even though the Ld. Lower Commission acknowledged the delay in handing over possession to the Appellants, yet it did not award any delay interest to them. Per material available on record, we find sufficient force in the plea raised. As per the agreement, possession was to be handed over within 42 months from the date of execution of the agreement or from the date of starting construction of the project, whichever is earlier. Admittedly, the agreement was signed on 24.06.2016 and as per Respondent’s declaration on the RERA website, the project started on 07.01.2016 and thus the 42 months period ended on 06.07.2019. Since, no physical possession has been handed over by the Respondent till date the Appellants deserve to be awarded delayed interest from 06.07.2019 until the actual handing over of physical possession. On account of delay in actual delivery of possession within the stipulated period, the Appellants suffered mental agony, hardships and financial loss. In the case titled as “Lucknow Development Authority Vs. M.K Gupta” (1994) 1 SCC 243, the Hon’ble Supreme Court discussed about the extent of the jurisdiction of the Consumer Fora to award just and reasonable compensation for the harassment and agony suffered by a consumer. In “Nagesh Maruti Utekar Vs. Sunstone Developers Joint Venture”, Consumer Case No. 12 of 2017, decided on 04 May 2022, The Hon’ble National Commission awarded interest @9% p.a. from the committed date of delivery till possession is delivered. Relevant part of the said order is reproduced hereunder:-

“……Consequently, the Opposite Party Developer is directed to pay interest @9% w.e.f. 31.03.2014, i.e., the expected date of delivery of the possession, on the amount deposited by the respective Complainant till 02.09.2017, i.e., the date on which the possession of the Flat was offered by the Opposite Party Developer, within two months from today.  The Opposite Party Developer shall also pay cost of ₹25,000/- to the Complainants in each case.   Since we have awarded delay compensation till the date of offer of possession instead of actual physical possession of the Flat, the Opposite Party Developer shall not be entitled for any delay interest from the date of offer of possession till the date of payment made by the Complainant for taking physical possession of the Flat.…..”

                In “Shreya Kumar & 11 Ors. Vs. M/s. Ansal Housing & Construction Ltd. & 3 Ors.”, Consumer Case No. 1021 of 2017, decided on 05 May 2022, the Larger Bench of the Hon’ble National Commission has awarded interest @9% p.a. from the committed date of delivery till possession is delivered. In the present case, the Appellants have purchased the flat in question, as far as back in November 2016. We are in the end of the year 2023 and still, the Appellants are empty handed and they are forced to approach this Commission for redressal of their grievance. Respondent has played fast and loose with the Appellants and have caused harassment and mental agony to them, which is unacceptable and this practice needs to be deprecated. In our considered opinion, if we grant interest @9% p.a. to the Appellants on the entire amount deposited by them, from the due date of possession onwards till delivery of possession thereof, that will meet the ends of justice. In this view of the matter, the orders passed by the Ld. Lower Commission, in the impugned order, needs modification. 

  1.         It is also the categorical case of the Appellants/ Complainants that they had purchased the apartment under the subvention scheme and as per the said scheme, the Respondent undertook to bear pre-EMI interest, till the offer of possession. It is a matter of fact that the Respondent and the Appellants mutually agreed to extend the project completion time until 31.03.2020 subject to the condition that the Respondent would reimburse the pre-EMI interest to the Appellants in case of any further delay in possession beyond 31.03.2020, but the Respondent failed to honour the said commitment, due to which they were coerced to pay the same from their own pocket. Learned Counsel for the Appellants argued that the Ld. Lower Commission failed to appreciate the fact that the Appellants have paid pre-EMIs amounting to ₹3,85,911/- from April 2020 to January 2021 which was to be paid by Respondent. We find sufficient merit in this limb of argument raised by the Learned Counsel for the Appellants. The Ld. Lower Commission has erred in not considering this crucial fact which led to an erroneous order that did not address the compensation owed to the Appellants for the extended period. To our mind, the Ld. Lower Commission ought to have ordered to pay the amount of ₹3,85,911/- to the Appellants/ Complainants which had been paid by them from April 2020 to January 2021 on account of pre-EMI to HDFC Ltd. (OP No.2 in the Complaint) for which Opposite Party No.1 agreed as per mutual agreement. In this view of the matter, the orders passed by the Ld. Lower Commission, in the impugned order, needs modification. 

 

  1.         No other point was urged by the Counsel for the Parties.

 

  1.         For the reasons recorded above, this appeal stands partly allowed. The order impugned is modified and the Respondent is directed as under:-

i)      To restore the allotment of unit in question, within a period of one month from the date of receipt of a certified copy of this order, without demanding any interest on the payments already made.

ii)     To hand over possession of the apartment/flat complete in all respects to the Appellants/ complainants, within a period of three months from the date of receipt of certified copy of this order.

iii)    To pay to the Appellants/ Complainants, delay interest @9% p.a. on the amounts deposited w.e.f. the due date of possession i.e. 06.07.2019, until actual delivery of physical possession of the apartment in question complete in all respects. 

iv)    To pay the amount of ₹3,85,911/- to the Appellants/ Complainants which had been paid by them from April 2020 to January 2021 on account of pre-EMI to HDFC Ltd. (OP No.2 in the Complaint) for which Opposite Party No.1 agreed as per mutual agreement, within a period of 60 days, from the date of receipt of a certified copy of this order, failing which the said amount shall carry interest @12% p.a. from the date of passing of this order till realization.

v)     To issue fresh statement of accounts to the Appellants/ complainants after adjusting, interest, penalty and cost as imposed upon Respondent in the present order.

vi)    To pay compensation for causing mental agony and physical harassment to the Appellants/ complainants on account of  deficiency in providing service and adoption of unfair trade practice by cancelling the allotment of unit wrongly and arbitrarily, in lumpsum, to the tune of ₹1,00,000/-, to the Appellants/ Complainants, within a period of 60 days, from the date of receipt of a certified copy of this order, failing which, the said amount shall carry interest @12% p.a. from the date of passing of this order, till the date of its actual realization.

  1.         All the pending application(s), if any, also stands disposed off accordingly.

 

  1.         Certified Copies of this order be sent to the parties, free of charge.

 

  1.         The file be consigned to Record Room, after completion.

Pronounced

27th December,2023                                                                   

                                         Sd/-                         

                                                                (PADMA PANDEY)

PRESIDING MEMBER

 

 

Sd/-

(PREETINDER SINGH)

MEMBER

“Dutt”  

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