Hero Realty Pvt.Ltd V/S Satinder Ahuja - Consumer Court Case

Punjab

Ludhiana

CC/21/513

Satinder Ahuja - Complainant(s)

Versus

Hero Realty Pvt.Ltd - Opp.Party(s)

Parunjeet Singh

19 Nov 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

Consumer Complaint No: 513 dated 10.11.2021. Date of decision: 19.11.2024.

Satinder Ahuja wife of Rajiv Kumar
Dr. Rajiv Kumar son of Ram Lal Gupta, both residents of House No.201, Pakhowal Road, Premium Apartments, Gurdev Nagar, Ludhiana, Punjab ..…Complainants

Versus

Hero Realty Pvt. Ltd. Registered Office: E-2 Qutab Hotel Complex, Shaheed Jeet Singh Marg, New Delhi-110016. EMAIL ID:
Subash Chandra Swain, Promoter, Hero Realty Pvt. Ltd., 264, Ground Floor, Okhla Industrial Estate Phase-III, New delhi-110020.
Housing Development Finance Corporation Pvt. Ltd., Regd Office: Ramon House HT Parekh Marg, 169, Backbay Reclamation, Churchgate, Mumbai-400020.
Housing Development Finance Corporation Pvt. Ltd., Branch Office: SCO 153-154-155, Sector 8-C, Madhya Marg, Chandigarh-160008. …..Opposite parties

Complaint Under Section 35 of Consumer Protection Act, 2019 against the opposite parties for deficiency in rendering service; adoption of unfair trade practice and negligence in performing duties.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

MS. MONIKA BHAGAT, MEMBER

COUNSEL FOR THE PARTIES:

For complainants : Sh. Parunjeet Singh, Advocate

For OP1 and OP2 : Sh. Sanjeev Sharma, Advocate.

For OP3 : Complaint against OP3 stands already dismissed as withdrawn vide order dated 22.03.2022.

For OP4 and OP5 : Sh. Hari Om Jindal, Advocate.

ORDER

PER SANJEEV BATRA, PRESIDENT

1. Shorn of unnecessary details, the facts of the case are that OP1 is in the business of real estate activities on a fee or contract basis including buying, selling, renting managing and appraising real estate. The complainants stated that in 2017, OP1 launched a Collaborated project namely “Hero Homes, Ludhiana -Phase I”- a residential project consisting of apartment buildings/towers and shops etc. which was situated at Village Birmi Hud-bust No. 146, Sub -Tehsil Mullanpur Dakha, Tehsil and District Ludhiana (Punjab). The said project was carved out of parcels of land owned and possessed by the OPs admeasuring 15.60 acres, in which they applied a Residential Unit for self-occupation. Complainant No. 1 is a house wife whereas complainant No. 2 is a Professor and currently the head of the Department of Cardio Vascular and Thoracic Surgery Unit at Dayanand Medical College and Hospital, Ludhiana. The Complainants had purchased the aforesaid resident flat since there was a need on their part for a residence providing greenery and play space for their child.

The complainants further stated that they were interested in the said project for themselves and their family and were misled by the false assurances regarding the Residential Unit and myriad of amenities allegedly available in the said project. On 30.11.2017, the complainants applied for an apartment/ Residential Unit for ‘Self Use’ for provisional registration/allotment with approximately super area of 2700 sq. ft for a consideration of Rs.1,38,31,280 including infrastructure development and External Development Charges etc. Further an amount of Rs.2,50,000/- was paid vide Cheque No.158776 dated 30.11.2017 for Rs.1,50,000/- and Cheque No.000110 dated 28.11.2017 for Rs.1,00,000/- for the said allotment. OP1 issued receipts dated 30.11.2017 and 01.12.2017. The OPs assured to hand over the possession of allotted residential unit by 31.03.2020. The OPs allotted Apartment No 701 having an area of 2700 sq. ft on the 7^th Floor of Tower No. T-04 along with closed parking No. 433, 433A and 417 etc. to the complainants. Moreover, a comprehensive Builder–Buyer Agreement (hereinafter called as BBA) was entered into between the parties on 11.04.2018. According to the complainants, as per the BBA more particularly Clause G read with Schedule C appended they were duly allotted a 4 BHK flat i.e., Apartment No. 701 having a carpet size of 1714 sq ft on the 7^th Floor of Tower T-04. Even as per Clause 7.1 of the said BBA, the OPs were duty bound to deliver the possession of the allotted flat within a stipulated period i.e. as on or before 31.03.2020. Further as per Clause 5 of the said BBA time was the essence of the contract and as per the schedule so specified delivery of possession would mean delivery of physical possession of the allotted unit after receiving the occupancy certificate or completion certificate or both as the case may be. The payment plan was also suggested by the OPs in collaboration with HDFC Pvt. Ltd i.e. OP4 and OP5 under a Subvention Payment Plan wherein the Promoters/opposite parties ensured that the bulk of the payment would be made by the HDFC Bank and the repayment would have to be made by the complainants only after the entire payment stood paid by the said Bank.

The complainants further stated that consequently on 23.03.2018, a Tripartite agreement was entered into between them, OP1 as well as OP5 for a loan of Rs.1 Crore for the purchase of the said flat. But the said agreement so entered is prima facie unfair and one sided which is evident from the fact that at the time of signing of the same various entries were left blank and to this date, the complete agreement with filled in details have not been provided to the complainants despite various requests and reminders. Further besides the Tripartite Agreement, OP5 had on 24.04.2018 also. The ccomplainant made payments from time to time to the OPs as per the Payment Schedule (Construction linked plan) annexed with the BBA and as per the demands raised by the OPs. That on 07.02.2018, the complainants duly deposited Rs.11,25,028/- to OP1. Further on 24.04.2018, subsequently an amount of Rs.27,70,537/- was made through OP5 to OP1. However, despite the payment plan as per the stipulated time frame i.e. 30.03.2020, the OPs were unable to deliver possession of the allotted unit to the complainants despite various requests and reminders by them who kept on waiting in good faith for the due delivery thereof but to no avail.

According to the complainants, the Company/Opposite party had assumed liability for the purposes of the Loan availed by them from HDFC/OP4 and OP5 on the representation that their EMI(s) would start only after the entire amount stood paid by the OP Bank to the Builder. However, the OPs informed the complainants that the Subvention scheme has now been declared illegal and now the complainants would have to pay the EMI(s) on their own. However, on asking of the complainants no details/documentation has been presented by the Opposite Party/Bank to elucidate or clarify the new terms of agreement. It is utterly shocking and surprising that the complainants were first made to sign blank documents and then no proof of changed terms were provided by the OPs to them. On 17.01.2019, OP1 again wrote a letter whereby they unilaterally changed the Assumed Liability Period to 30.09.2019 without their consent due to which they shocked. And as such, they refused to sign this letter. Moreover, a reference has been made in the said letter regarding an allotment latter dated 14.01.2018 which was never received by the complainants. The complainants further stated that even OP5 started harassing them for due payment of the loan amount and in the month of November 2020, they sent Recovery agents to their house who misbehaved with them who had recently recovered from COVID -19 at the time. Further the complainant shocked and surprised when OP1 to OP3 issued allotment letter dated 22.02.2021 after almost one year of the stipulated date of delivery of possession to them and that too without any completion or occupancy certificate. Further, as per the said allotment letter, the allotted unit to the complainants is now been described as a 3.5 BHK flat instead of the 4 BHK Flat as specified in Schedule C of the BBA. As such, the complainants vide letter/email dated 12.03.2021 invoking Clause 9.2 of the BBA wherein they were entitled to a full refund of the amount paid along with interest thereof on account of non- delivery of possession within the stipulated time. Moreover, the alleged delivery of possession has still not been made as per the terms of the BBA since Firstly the delivery of alleged possession cannot be made without the occupancy/completion certificate and Secondly the delivery has been allegedly made by OP1 to OP3 of a Flat which is of 3.5 BHK instead of 4 BHK as described in the BBA. Further OP1 without considering the termination notice, sent a letter dated 22.07.2021 offering possession of the allotted unit. Further, now after the termination notice was sent, instead on complying with the provisions of Clause 9 of the BBA, OP1 vide letter dated 18.09.2021 cancelled the allotment of the aforesaid Unit and vide the said letter forfeited Rs.41,91,930 and have stated to have refunded Rs.40,58,238 in favor of OP5. The complainants further stated that the delay in delivery of possession is almost a year of the stipulated date and therefore the OPs cannot take benefit of the force majure since the project was nowhere near the completion timeframe as on 24.03.2020 date of the lockdown. The OPs induced the complainants to enter into one sided agreements where in case of non-delivery of possession, the complainants though would be entitled to invoke Clause 9 of the BBA and not pay any further amount to the Opposite Party Builder but still would be liable to the Opposite Party Bank for the loan amount in accordance with the Tripartite agreement and appended annexures and on non-payment the Company can simply cancel the allotment on the asking the Opposite Party Bank. This amount to unfair practice where the complainants are stuck in a loop and no-fault liability is being exercised by the Opposite Parties in collusion with each other which is clear from the Bank Letter dated 22.07.2021 where on account of non-payment of the agreed amount as per the Tripartite agreement the Bank has asked the Builder to cancel the allotment. Further again on 18.10.2021, the OPs has sent an Email/reminder to pay the entire arrears along with interest for delivery of the allotted unit. This clearly proves that the opposite Party is trying to arm-twist the Complainant(s) into paying the amount and into accepting the unit when the complaints have already terminated the BBA. Finally, on 29.10.2021 vide a vague and evasive Email, the OP1 toOP3 unilaterally cancelled the aforesaid letter dated 18.09.2021, meaning thereby that no refund has been executed by OP1 to OP3 in favor of OP4 and OP5 and the liability of the amount already stood paid by OP4 and OP5 (Rs.40,58,238 plus other charges and interest) would also fall on the complainants. Further no refund of the amount of Rs.13.75 Lacs appx paid by the complainants has been made to them as well. The complainants further stated that it is evident that the opposite party has also not delivered possession of the Residential unit so allotted that is Residential unit within the designated period from the date of execution of the Builder Buyer Agreement. Instead of delivery of possession of the allotted Residential unit, the opposite party has changed the size and stricture of the unit allotted to the complainant and is pressurizing the complainant to accept the same. As such, the complainants are entitled to compensation for non-compliance of the terms of delivery of possession of the desired Residential unit within the stipulated time frame provided by the Builder Buyer Agreement. According to the complainants, the allottees like them are made to sign the Standard Terms and Conditions by the OPs for allotment of Residential Units. As such, a fraud was played upon the allotees like the complainants by the Opposite Party herein. Moreover, a substantial amount of money was raised by the Opposite Parties from various perspective buyers towards the project construction without specific allotments which is violation of terms of agreement as well as frustration of the very purpose of the purchase of Residential Unit by the complainants and as such, the OPs are liable to pay compensation @ 18% per annum on the amount of money deposited by the Allottee with them with effect from the date of payment as per the Statement of Accounts. Even the OPs had violated the terms and conditions of the standard terms and conditions, the allotment letter and Builder Buyer Agreement for the allotment of the Residential Unit on the 7^th Floor, which amounts to deficiency in service and unfair trade practice. In the end, the complainants prayed for issuing directions to the OPs to refund the amount of Rs.13,75,028/- paid by them along with interest and further to refund the amount of Rs.40,58,238/- including other principal amount/charges interest accrued on the amount paid by OP4 and OP5 including arrears of Rs.4,52,610/-. The complainants also prayed for issuing directions to the OPs to pay Rs.5,00,000/- as compensation and Rs.50,000/- as litigation expenses.

2. The complaint against OP3 was dismissed as withdrawn vide order dated 22.03.2022 in view of statement suffered by counsel for the complainant.

3. Upon notice, OP1 and OP2 appeared and filed joint written statement. Under the column preliminary submissions/objections, the OPs stated that OP1 and OP2 are one and the same entity whereas OP3 is neither the Promoter of the Project nor he is a necessary party and his name needs to be deleted from the array of parties. OP1 and OP2 further stated that they had undertaken the construction and development of Multi Storey Residential Complex, Village Birmi, Sidhwan Canal Road, (Near Janpath Estate), Ludhiana, Punjab-142027 known as “Hero Homes-Ludhiana”. The complainants submitted an application for apartment for Unit No.T-04/701 through Consultant Avis Infra & Realty Pvt. Ltd. and an Apartment Buyer Agreement dated 17.01.2017 as executed between them and the complainants in respect of said apartment. As per terms of said Apartment Buyer Agreement dated 17.01.2021, the OPs had been sending demand notices to the complainants for payment of installments but despite receipts of demand notices and subsequent reminders, the complainants continued to default in their obligations under the said agreement. Further vide demand letter cum service invoice dated 01.12.2017, the OPs raised a demand for payment of Rs.11,25,028/- followed by reminder letter-1 dated 15.01.2018. Even the complainants were informed about allotment of T-04/701 in their favour vide allotment letter dated 23.01.2018. Further vide reminder leter-2 dated 29.01.2018, they raised demand for payment of Rs.11,25,028/- from the complainants and vide receipt dated 06.02.2018, the OPs acknowledged the payment of Rs.11,25,028/-.

OP1 and OP2 further stated that the complainants entered into a tripartite agreement with them and Housing Development Finance Corporation Limited for loan arrangement to finance the payments of the said property. Vide demand letter cum service invoice dated 12.04.2018, the OPs raised a demand for payment of Rs.68,75,140/- from the complainant and further vide demand letter cum service invoice dated 12.04.2018, they raised a demand of Rs.34,37,570/- from the complainants. Even vide receipt dated 28.04.2018 the OPs acknowledged the payment of Rs.27,70,537/- to the complainants. OP1 and OP2 vide demand letter cum service invoice dated 11.05.2018 raised a demand of Rs.34,51,968/- from the complainant. However, vide receipt dated 31.05.2018, they acknowledged the payment of Rs.27,97,443/- by the complainants. Further vide third reminder notice dated 11.06.2018, OP1 and OP2 sent a final reminder for pending installments relating to said property along with demand letter cum service invoice dated 11.06.2018, OP1 and OP2 raised a demand for payment of Rs.6,62,083/- from the complainants. However, due to Covid-19 pandemic, the Government of India imposed nationwide lockdown due to which the business of real estate sector got adversely affected which caused difficulty to the developers and buildings in the market. As such, they could not offer possession sooner. Even by circular dated 19.02.2020, Ministry of Finance declared Covid-19 pandemic as Force Majeure Event and further in view of situations created by the pandemic Covid-19, Ministry of Housing and Urban Affairs by circular dated 13.05.2020 issued an advisory for extension of registration of real estate projects due to Force Majeure under the provisions of Real Estate (Regulation and Development) Act, 2016. Further Maharashtra Real Estate Regulatory Authority issued a circular dated 18.05.2020 whereby directing that Force Majeure period will be treated as a moratorium period for the purpose of calculating interest inter alia under Section 18 i.e. for interest on delay compensation also. Relevant part of the circular dated 18.05.2020 is reproduced as under:-

“The Force Majeure period will be treated as a “moratorium period” for the purpose of calculating interest under Section 12, 18, 19(4) and 19(7) of the Act.”

OP1 and OP2 further stated that by circular dated 28.10.2020 the Punjab Real Estate regulatory Authority also declared Covid-19 as Force Majeure. However, on 12.01.2021, OP1 and OP2 received Occupation Certificate. Vide letter dated 22.07.2020, HDFC Limited informed them that for the reason stated in the said letter, it has decided to exercise its right to seek refund of loan availed by the complainants. Even vide letter dated 24.07.2021, HDFC Limited addressed to them issued a corrigendum to its letter dated 22.07.2020 stating therein that letter was inadvertently mentioned dated 22.07.2020 and the same be read as 22.07.2021. According to OP1 and OP2, the complainant is in violation of Section 19(6) of the Real Estate (Regulation and Development) Act, 2016, which is reproduced as under”-

“19(6) Every allottee, who has entered into an agreement for sale to take an apartment, plot or building as the case may be, under section 13, shall be responsible to make necessary payments in the manner and within the time as specified in the said agreement for sale and shall pay at the proper time and place, the share of the registration charges, municipal taxes water and electricity charges, maintenance charges, ground rent, and other charges, if any.”

Even the complainant regularly defaulted in payment of the installments, which is tabulated as under:-

Sr. No.	Stage	Amount	Due Date	Payment Date	Delay (in days)
1	Completion of 11^th Floor Slab	595877	26.05.2018	Not paid till date	1364
2	Completion of Services	4071684	24.10.2020	Not paid till date	493
3	On offer of Possession	1438328	10.08.2021	Not paid till date	203
	Total				2060

Further in consequence for violation of Section 19(6) by the complainant is captured in Clause 7.3 of the Agreement prescribed by the Punjab Real Estate Regulatory Authority under the Rules framed under the Act, the relevant para of which is reproduced as under:-

“…On the failure of allottee to pay the installment as given in Schedule D of this Agreement, apart from paying the interest on the delayed amount, the possession of the apartment shall be extended to the extent of the period of delay in paying the defaulted amount.”

As such, in the light of said clause 7.3 and delay of 2060 days in making payment of installments by the complainant the date of possession stands automatically extended by 2060 days and as such, as per PBRERA Rules, there is no delay on the part OP1 and OP2 in offer of possession. Further vide letter dated 27.07.2021, they offered possession to the complainant. Vide letter dated 18.09.2021, cancelled due to on account of continued default and the complainant was intimated regarding cancellation of allotment.

In parawise reply, OP1 and OP2 reiterated the crux of averments made in factual submission. OP1 and OP2 have denied that there is any deficiency of service and have also prayed for dismissal of the complaint.

4. OP4 and OP5 appeared and filed separate written statement and by taking preliminary objections, assailed the complaint on the grounds of maintainability; the complaint being time barred etc. OP4 and OP5 stated that in the present complaint, the grievance of the complainants is directed only against OP1 to OP3 who have allegedly failed to deliver its commitments in terms of Allotment/Agreement and the complainants are aggrieved of the delay in handing over of possession of the floor. Further there is no allegation of deficiency in services against them. However, as regards the finance advanced by the HDFC Limited is concerned, the rights of the parties to the present lis are governed by the Loan Agreement dated 24.04.2018 ad the Tripartite Agreement dated 23.03.2018. In case of cancellation of the unit of the contingency of termination of the Allotment/Agreement, the HDFC Limited has the first charge/right to seek apportionment of its dues. OP4 and OP5 further stated that the loan account of the complainants is irregular and they reserve their right to proceed in accordance with terms of the aforesaid Loan agreement in case of default on the part of the complainants. Further as on 31.03.2022, the amount of Rs.76,52,382/- is pending towards the complainants.

On merits, OP4 and OP5 reiterated the crux of averments made in factual submission. OP4 and OP5 have denied that there is any deficiency of service and have also prayed for dismissal of the complaint.

5. In evidence, the complainants tendered their joint affidavit as Ex. CA and reiterated the averments of the complaint. The complainant also placed on record documents Ex. C1 to Ex. C15, Ex. C8/A ad well as Ex. C11/A and closed the evidence.

6. On the other hand, the counsel for OP1 and OP2 tendered affidavit Ex RA of Sh. Rajan Kohli, authorized representative of OP1 and OP2 along with documents Ex. RW1/1 to Ex. RW1/27 and closed the evidence.

The learned counsel for OP4 and OP5 tendered affidavit Ex. R4/A of Sh. Parshant Kumar, Authorized representative along with documents Ex. R4/1 to Ex. R4/4 and closed the evidence.

7. We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents as well as written statements, affidavits and documents produced on record by the parties. We have also gone through written arguments submitted by the parties.

8. The document Ex. C3, an agreement to sell stated to have been executed on 17.01.2017 between the complainant and OP1 to OP3 (The Promoters) which was registered in the office of Joint Sub Registrar, Mulanpur Dakha, District Ludhiana on 11.04.2018. This agreement runs into 30 pages out of which first 23 pages are devoted to terms and conditions while other pages contained Schedule-A to Schedule-F. Schedule-D is the payment plan according to which the allottee is obligated to make payment. The operative part of Schedule-D is reproduced as under:-

“SCHEDULE-D

PAYMENT PLAN BY THE ALLOTTEE

Customer Name	Mrs. Satinder Ahuja
Co-applicant(s)	Mr. Rajiv Kumar
Payment Plan Name	SUBVENTMION PAYMENT PLAN
Type of Apartment	4 BHK
Apartment No.	701
Floor	7^th
Tower	T-04

SL. No.	Installments		Total Amount (Rs)
1.	On Booking	Price Of Apartment	250,000.00
2.	30 days from booking	Price Of Apartment	561,900.00
3.	On start of Excavation	Price Of Apartment	3,029,750.00
4.	On start of 11^th Floor roof slab	Price Of Apartment	3,029,750.00
5.	On completion of Services	Price Of Apartment	3,635,700.00
6.	On offer of possession	Price Of Apartment	1,211,900.00
GST AND OTHER TAXES			1,454,280.00
TOTAL PRICE			13,573,280.00
IFMS			81,000.00
TOTAL INCLUDING IFMS			13,654,280.00