Before the District Consumer Dispute Redressal Commission [Central District] - VIII,      5th Floor Maharana Pratap ISBT Building, Kashmere Gate, Delhi

                                      Complaint Case No.-252/13.09.2019

Nakul Aggarwal son of Shri Rakesh Aggarwal

Resident of - A-50/51,  Raja Puri, Uttam Nagar

Delhi -110059                                                                                  …Complainant

                                                                        Versus

Jaguar Infrastructures Private Limited,

through its Director Shri Rajesh Lamba

Regd. Office -561-562, Double Storey,

New Rajender Nagar, New Delhi -110060                       ...Opposite Party                                                                  

                                                                                    Date of filing:             13.09.2019

                                                                                    Date of Order:            01.03.2024

Coram:

Shri Inder Jeet Singh, President

Ms. Shahina, Member -Female

                                                       ORDER

Inder Jeet Singh , President

1.1  (Introduction to case of  complaint) – In this amended complaint,  there are grievances of deficiency of services and of unfair trade practice against OP and the complainant seeks refund of the amount of Rs.15,14,752/- deposited with OP in respect of purchase of a residential apartment.  The complainant booked flat no. C-511 fifth floor,  2BHK, admeasuring 900 sq. feet (super area) (hereinafter referred as the apartment or residential flat) in OP's project Aryan Apartment, Sector-73 NOIDA by executing builder buyer agreement, which was subsequent to change of allotment from C-1 616 admeasuring 900 sq. feet (super area) with consent of both the sides. The complainant paid amounts from time to time, the total amount paid is Rs.15,54,752/- till 19.06.2015 as demanded by OP, it was out of total consideration amount of Rs.30,56,412/-. The apartment was booked in 2013 and  builder buyer agreement was entered into on 26.5.2014 (executed on 11.07.2014) but OP failed to deliver the possession within agreed period of 42 months..  The possession ought to have been delivered  by 26.11.2017 but it was not delivered because of incomplete  construction of project.  The complainant got served OP on 01.11.2018 with legal notice dated 01.10.2018, posted on 31.10.2018 seeking refund of amount with interest  of 18% a and other claims, but there was no compliances. That is why, the complaint was filed seeking refund of entire paid amount of Rs.15,14,752/-, compensation of Rs. 4,00,000/- in lieu of suffering from mental agony,  torture, and cost of litigation of Rs. 50,000/-,  besides other appropriate relief.

1.2.  The OP denies allegations of complaint of deficiency of services that there is no substance in the complaint but there is default of complainant for non-compliance of terms and conditions of agreement for timely payment. There are many allottees who took the possession of their flats but complainant defaulted in payments.  The complainant is not willing to pay outstanding amount and to take possession, which OP was always ready.

2.1. (case of complainant) –The OP/builder published a project  namely the Aryan Apartment, Sector-73 NOIDA and the complainant found it viable, he booked a flat no. C-511 fifth floor, two BHK, admeasuring 900 sq. feet (super area). He paid amount of Rs.l5,54,752/-, as and when demanded by OP,  out of total sale consideration amount of  

Rs.30,56,412/- . The paragraph 3 of the complaint enumerates details of payment from 20.4.2013 to 19.06.2015. The  OP vide its letter dated 10.07.2014 made provisional allotment of another flat C-1 616 admeasuring 900 sq. feet (super area) in place of originally booked flat no. C-511 fifth floor, 2BHK, admeasuring 900 sq. feet (super area), whereas there was builder buyer agreement (of 26.5.2014) was subscribed on 11.07.2017), that too after letter dated 10.07.2014. As per complainant in terms of  clause 9 of builder buyer agreement, the possession was to be delivered within 42 months from that date of builder buyer agreement. The complainant in order to have timely possession of the apartment, he was making timely payments as and when demanded by the OP.  The OP had collected  from complainant substantial amount of Rs.15,54,752 against receipts, but OP has not delivered the possession of the apartment to the complainant as per agreement, the OP used and enjoyed amount of complainant.

2.2. The complainant paid his hard earned money to the OP but the conduct of OP depicts deficiency/denial of services for want of fulfilling the assurances and promises given. It also reflects its mala-fide, wrongful and deceitful intention to evade accountability and responsibility. The complainant has been traumatized for such acts and deeds of the OP since there were frequent efforts, visits, inquires, trauma of mental pressure, agony faced by the complainant while exploring the status of project and possession of flat.

2.3. OP had also given assurances but OP  failed to complete the construction of the project within stipulated period, consequently OP  failed to offer the possession of apartment, even  much delay from the stipulated time. It was October or November 2015, when the complainant visited the site and shocked to see that even not a single brick was constructed at the site. The complainant also visited the OP in 2018 but there were lame excuses, however, neither the possession was offered nor delivered and when complainant asked for refund of amount, it was refused by the team of OP. Thence legal notice was sent for refund of amount with interest.  The OP also failed to provide any reasonable justification for such delay. The project is incomplete and for want of progress in the project, the  possession of the unit was not offered.  There is inordinate delay.  There is non-compliance of legal notice. That is why complainant seeks refund of total amount paid and other relief claimed.

2.4 The complaint is accompanied with copies - of builder buyer agreement 26.05.2014, payment receipts,  letter dated  10.7.2014,  recent photographs of site of project to show its incomplete status with citation the Hindustan in Hindi of 08.08.2019 and copy legal notice dated 01.10.2018 (with track report and postal receipts, seeking refund of paid amount from OP).

3.1. (case of OP) - The OP filed the written statement under the signature of its authorized signatory Shri  Kamaljeet Tamang. The written statement is blend of some of admitted facts  but denial of other facts and circumstances with explanation that there is no deficiency of services on the part of OP.

3.2.  There is no dispute in respect of allotment of unit by the complainant, execution of builder buyer agreement dated 26.05.2014, however, as per covenant 29.2, it was a  provisional allotment, there is absolute discretion and right with the OP to replace it.

3.3.  The possessory rights could be transferred subject to absolute payment.  Many other buyers have taken the possession of the flats and they have started living for long time.  The complainant and other buyers were also sent emails by the OP for clearing outstanding amount but the complainant has fabricated false story.  The OP is ready to handover the possession,  provided the  complainant clear the outstanding amount. The OP has invested huge amount in the project and the money tendered by the complainant has also been utilized in the development of construction in the project.  In fact handing over the possession of flat is not a dispute but payment of outstanding amount by the complainant.  The complainant is neither willing to pay the outstanding amount nor ready to take possession of the flat.

3.4 The OP also denies other allegations of the complainant that the complainant never visited the OP in October or November 2018 vis a vis in 2018, the project was nearly complete but complainant was not willingly to pay the outstanding amount and to take possession.

3.5. The reply is accompanied with copies of - builder buyer agreement and record of emails with referred letters.

4.   (Replication). The complainant filed replication to the written statement and denied the allegations of OP (which are mentioned in paragraphs no.3.2 and 3.3 above). The complainant also refers contents of emails mentioned by OP that emails refers completion of 38 flats in another Tower-C1  and not in Tower-C, in which flat was supposed to be given at 5th floor to the complainant.  The complaint is not pertaining to dispute of replace of any provision but pertaining to completion of the flat no.511 in Tower-C at 5th floor. It has also came to knowledge of complainant that reasons for non-completion of flat in Tower-C is because of land dispute between the OP and the land owner is going on. The complaint did not receive any reminder email from OP pertaining to completion of Tower-C. The OP by letter dated 11.02.2017 offered rebate to move one of 38th flats in another Tower but the complainant was not interested for that, as the location/ area of said flat was not convenient to the complainant. The complainant reaffirms the complaint as correct.

5.1  (Evidence of complainant)- The complainant led his own evidence by detailed affidavit by referring all documentary record filed with the complaint. The affidavit is also on the lines of complaint and documents.

5.2. The OP led its evidence by filing affidavit of Shri  Kamaljeet Tamang, Authorized signatory, it is on the pattern of written statement.

6.1  (Final hearing)- The complainant and the OP have filed their respective written arguments.  Dr Janak Raj Rana, Advocate for complainant and Shri Dhananjay Advocate alongwith Ms Srishti Kasana, Advocate and Shri Saquit Siddiqui, Advocate for OP presented their oral submissions.

            After hearing the both the sides, the matter was scheduled for Final Order on 13.02.2024 but on that day, the President was attending the Programme being conducted by Department of Consumer Affiars, Govt of Delhi, Delhi. The matter was kept for final Order today. Moreover, it was requested that an application will be filed to make submission by the newly appointed counsel.

            Then an application was filed under the signature of Shri Rajesh Lamba, Director of OP with vakalatnama in favour of Shri Purushottam Tiwari, Advocate  to provide opportunity to make  brief submission in the interest of justice. On 24.4.2024 the present counsel also made similar submission on behalf of OP, however, the date of final Order for today remained same.

6.2.  The complainant's written arguments are on the lines of case of complainant already detailed in paragraph 2 above, with emphasize that project was not complete and OP had also no intentions to give possession, that is why it was never offered and plea of outstanding amount is being put  as a shield. The complainant refers and derives reasons  in support of complaint from the following cases-

(i)  Yogesh Sharma Vs M/s Unitech Limited (decided in 2015, by hon'ble NC) that parties are bound by the terms and conditions of agreement, the court or consumer for a cannot  revise them.

(ii) Manmeet Singh Vs Unitch High Tech Ltd (decided in 2019, by hon'ble NC) that when possession of flat is not offered to the allottee of flat, the allottee may either seek possession or refund of amount.

(iii) Kolkata West International City Pvt Ltd Vs Devasis Rudra (decided in 2020, by hon'ble apex court)  it would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait infinitely.

6.3.  The OP also reiterates the same contentions, being in three fold that the complainant was not willing to pay the outstanding/pending amount, the allotment was provisional and OP has allotted other apartment as per agreement and there were emails to the complainant but complainant failed to accept it, despite many other members took possession of the flats.  The OP also relies upon Yogesh Sharma Vs M/s Unitech Limited (supra) that parties are bound by the terms and conditions of agreement,. However, the complainant failed to follow them and clause 9.6 of the agreement is regarding buyer's failure to take possession would not make the builder liable for any consequences, while referring and emphasizing  general  letter dated 10.07.2017 to  Member (page 52 of the paper book of OP) that  flats will be completed within 3 months from the date payment and possession will be handed over to the member mentioned above in July 2017 and complainant's record of photograph (page 52 ) is referred that in the background a complete tower is visible, where flat were ready .

7.1 (Findings) - The  contentions of complainant and also the contention presented by all the counsel for OP are considered, keeping in view the material/evidence on record, the case law presented, besides other cases/precedents to the situation and the statutory provisions of the Consumer Protection Act, 2019.

7.2.  There is no dispute, besides  proved facts,  that the complainant was allotted flat no.C-511 [ by subscribing builder buyer agreement on 11.0.2014) in place of  previous flat no. C1=616 and he was allotted the flat subject to payments. The builder-buyer agreement dated 26.5.2014 was reduced into writing on non-judicial stamp paper on 11.07.2014. which   is also proved by both sides., The payment made by the complainant against payment receipt is also not disputed as per letters issued by OP. The total sale price of the flat is Rs. 30,56,412- and the complainant had paid  amount of Rs. 15,54,752/-, if and when demanded,  is also not in dispute.

7.3     The correspondence by way of letters is  proved by the complainant  and emails are also  proved by the OP. There is no reservations by the OP that the complainant had with-held any of letters, which may be other than the letters filed and proved by the complainant.  The complainant has also not expressed reservations in respect of emails filed and proved by the OP.

            On the face of such record,  there is no letter or email that the OP had ever since offered possession of the flat no C-511 to the complainant nor any record that the project was complete to be delivered to the complainant. The emails which lasts to the year 2019, the OP has sought expression of interest in flats in Tower C-2, to  the already registered member subject to deposit of token amount of Rs.1 lakh and remaining amount at the completion of project, besides  handing over 2BHK to be furnished by land-owners.  It also proves even Tower-C2 was also not complete and its construction was yet to be completed, since furnishing of flat is part of completion of construction. The OP is also introducing un-named land owners in the email, who will complete the construction, such land-owner are third party, they are not party to builder buyer agreement, It is manifest from own document of OP that OP never communicated to complainant about completion of Project/Tower-C in which allotted flat was located but fresh proposal of another flat in another Tower was offered, it was within the discretion and choice of complainant to consent it or not. The OP cannot force it and then to take plea of covenant of builder buyer agreement.  The OP in its written statement has cleverly stated by projecting as if the  allotted flat in the  Tower was ready but complainant was not willing to take it, whereas  contents of emails speaks about another tower that too in the year 2019. 

            The letter dated 10.07.2017 clearly indicate that the project or flat was not ready and this letter is general in nature written just addressing 'Member'. The emails of 2019 are also crystal clear that flat or project was even in  complete in 2019. The visual photographs (of August 2019) filed by the complainant are in fact demonstrating the status of incomplete project and flats, which is being admission of OP of incomplete project or flat in emails of Sept. 2019.

            In addition, the OP was writing letter dated 10.07.2014 for provisional allotment of flat no. C1 616 subject to builder buyer agreement, whereas the builder buyer agreement was subscribed on 11.07.2014 in respect of flat C-511 fifth floor, which is after 10.07.2014. then in the absence of builder buyer agreement in respect of C-1 616 the OP cannot forced it on the complainant.   The email  pertaining to other Tower cannot be imposed on the complainant, under these circumstances. The OP is trying camouflage in its  narration but record of contemporary period is speaking of the circumstances.

7.4  Further, the complainant was allotted flat no.C-511, for which builder buyer agreement dated 26.5.2014 was subscribed on 11.07.2014, however, in the entire email there is no record that this flat or tower in which this flat was to be constructed, was completed to be delivered nor possession was offered to the complainant.

7.5. It is relevant to mention that as per clause 9.1 of  agreement, the period of possession is 42 months from the date of application form but complainant has mentioned it from the date of builder buyer agreement. The application for booking is appearing to be in April 2013, when initial payment of Rs.1 lakh was made by way of cheque, as mentioned in details of payment issued by OP. The date  26.05.2014/11.07.2014 is of builder buyer agreement, it is subsequent to date of application/booking of 2013. The period of 42 months is to be computed from April 2013 and 42 months  ends in September, 2016 and from the date of agreement ends on 24.11.10.2017/10.12.2017.

            Further, there is no proof of any letter by OP, in which a specific balance amount was asked from the complainant in lieu of flat allotted and for delivery of possession.

7.6.   Thus, the complainant has succeeded to prove that he had paid amount of Rs. 15,54,752/- to OP from time to time as demanded  but OP failed to complete the project or to offer the possession of the flat within stipulated period nor delivered it to the complainant subsequently. The complainant never asked for cancellation of his booking, nor it was cancelled rather prior to filing of the complaint, he  had been ascertaining from OP about  the status of the project and of his flat to be delivered, it was found incomplete for which colour photograph of August 2019 have been proved. There is  no dispute to the photographs of the project. Then finally he sent legal notice through counsel for refund of amount. The documentary record inclusive of photographs of August 2019 is also showing the status of incomplete project.. This complaint was filed in September, 2019 and there is no iota of fact proved on record if the project was complete  to deliver the subject flat. This is deficiency of services on the part of OP, reliance is also placed on the following -

(a) Wg. Cdr. Arifur Rahman Kan and Aleya Sultana vs DLF Southern Homes Pvt. Ltd., 2020 SCC Online SC 667 decided on 24.08.2020, has held that  A failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within a contractually stipulated period amounts to a deficiency. There is a fault, shortcoming or inadequacy in the nature and manner of performance which has been undertaken to be performed in pursuance of the contract in relation to service.

(b) Marvel Omega Builders Pvt Ltd and anr Vs Shrihari Gokhale and anr 2019 SCC Online SC 1991, considering the feature of case, it was held that even assuming that Villa is ready for possessions, as contended by the appellants, the delay of almost five years is a crucial factor and bargain cannot be imposed upon the respondents; the respondents were held justified for refund of the amount deposited along with reasonable interest thereon.

(c) Fortune Infrastructure and another Vs Trevor D'Lima and anr (without citation)-held that a person cannot be made to wait infinite for possession of the flat allotted to him, the complainant is entitled for refund of amount along with compensation.

(d) Emar MGF Land Ltd and anr Vs Amkit Puri-II 2015 CPJ 568 NC – held that after promise date of delivery, it is in the discretion of the complainant whether he wants to accept the offer of possession, if any, or seek refund of the amount paid with reasonable interest.

(e) Vishal Malik and anr Vs Pioneer Urban Land & Infrastructure Ltd. Civil Appeal No. 1238/2017 dod 29.3.2019) when the amount was collected by developer from the buyer of flat but the flat is not delivered, the amount paid by the buyer of flat to the builder/developer is to be treated as deposits with the builder.

(f) Meerut Development Authority Vs Muksh Kumar Gupta IV 2012 CPJ 12 - it was held that failure to deliver possession of the flat constitute recurrent/continuing cause of action.

Accordingly, the complainant is held entitled for refund of entire amount of Rs.15,54,752/- from OP.

7.7.     There is another issue of interest component, whether or not to be allowed or at what rate if so held entitled?. The complainant has claimed interest at the rate of 18%pa in the legal notice proved but other reliefs in the complaint. The complainant mentions clause 9.4 as unfair clause, that in the eventuality, the builder abandons the project or builder terminate the agreement because of want of delivery of possession within stipulated period of 42 months or extended period, then interest at the rate of 6% a will be payable.  However, there is no proof of any record suggesting that the builder had abandoned the project or terminated the agreement, the email is regarding seeking of expression of interest another Tower. Thus, clause no.9.4 is not applicable to the situation. Since the complainant had  paid the huge amount to OP but possession of flat allotted was neither offered nor handed over, thus this amount is to be treated as deposit vis a vis OP will not be exonerated under the shield that it had invested the amount in construction of project. The complainant is held entitled for interest.   So far rate of interest is concerned, there is occasion to go through the following cases on the point of  rate of interest:-

(a) Puri Constructions Pvt Ltd  and anr Vs Harish Chawla [CA No.4472-5/2019 dod 7.5.2020] held that having regard to the market conditions, the interest at the rate of 12%pa was on higher side and interest payable at the rate of 8%pa was directed.

(b) M/s Chintels India Pvt Ltd Vs Vikas Jain Civil Appeal No.4855/2022. The interest of 7.5%pa from the respected date of deposit till the date of payment was directed instead of simple interest at the rate of 9%pa.

In view of above, interest at the rate of 8%pa is determined to be payable on paid amount from the last date of deposit of 19.06.2015 till the realisation of amount (payment receipt proved are pages 11-18 of paper book of complainant r/w para 3 of complaint).  

7.8   The complainant has claimed compensation of Rs. 4,00,000/- and litigation cost of Rs. 50,000/-. Since the complainant had suffered trauma of inconvenience, harassment, mental agony, therefore, in lieu thereof damages of Rs.50,000/- is determined in favour of complainant against the OP in the situation of this case.  The complainant had asked for refund of amount by advance legal notice, prior to filing the complaint but OP failed, then complainant was filed, therefore,  costs of Rs. 30,000/- is determined and allowed in favour of complainant and against OP.  

8.  So, the complaint is allowed in favour of complainant and against the OP by directing the OP to pay an amount of Rs.15,54,752/- along with interest at the rate of 8% pa from the last date of deposit from 19.06.2015 till the realisation of amount besides damages of Rs.50,000/- and costs of Rs. 30,000/- payable within 45 days from the date of order.  In case the amount is not paid by the OP within 45 days from the date of this order, then the interest rate will be 9% pa on amount of Rs.15,54,752/- (instead of rate of 8%pa).   The OP may deposit the amount in the Registry of this Commission by way of pay order or demand draft in the name of complainant.

9. Announced on this Ist day March of  2024 [फाल्गुन 11, साका 1945]. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for compliances besides upload on the website of this Commission.

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