STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA
Date of Institution: 23.10.2017
Date of Final Hearing: 25.07.2024
Date of Pronouncement: 30.09.2024
Consumer Complaint No.649 of 2017
Sh. Om Parkash Alawadhi S/o Sh. Wazir Chand Alawadhi, R/o 1671, Sector-13, Hisar, Haryana. ....Complainant
Versus
1. M/s Jindal Realty Private Limited, M-11, UGF, Middle Circle, Connaught Place, New Delhi-110001.
2. M/s Jagran Developers Private Limited, through its Project Manager registered office: Sector-29, Umri Road, Kurukshetra.
...Opposite Parties
CORAM: Sh. Naresh Katyal, Judicial Member.
Sh. S.C. Kaushik, Member.
Argued by:- Mr. Shubham Kaushik, counsel for complainant.
Mr. Drupad Sangwan, counsel for opposite parties.
ORDER
NARESH KATYAL, JUDICIAL MEMBER:-
Complainant has alleged that M/s Jagran Developers Pvt. Ltd., who is owner in possession of 88.787 acres of land located at Sector 29, Village: Umri and Palwal District: Kurukshetra has been granted licence by Director, Town and Country Planning-Haryana for setting up residential plotted colony. Project i.e. multistory retail-cum-office complex named ‘The Galleria’ in Kurukshetra Global City was to be developed by M/s Jindal Realty Private Limited. Complainant applied for commercial component vide application dated 29.06.2010 for allotment of shop/office in said development scheme and was allotted shop-cum-office i.e. Property No. G-39 (Note: In fact, property No. GF-69 was allotted to complainant as per OPs stand). He was assured that: possession will be handed over to him within two years from date of allotment and believing so, he invested his money. Vide OP No. 2’s letter dated 26.04.2013, he was apprised that said OP No. 2 will undertake construction and development of ‘The Galleria City’ as all developing rights have been withdrawn from M/s Jindal Realty Pvt. Ltd. Accordingly, original allotment letter was submitted to OP No. 2 and fresh agreement (Annexure C-2) was entered into between complainant and OP No. 2 on 08.04.2014. As per clause 27 thereof, possession of shop-cum-office was to be handed over to him within 36 months with extended period of six months. Till date (date of filing complaint); said OP has/had not handed over possession of shop-cum-office to him while he has paid over Rs10,08,037/- which is apparent from letter Annexure C-3. In spite of lapse of seven years (as on date of filing of this complaint); OP has not handed over possession to him, or in the alternative has not refunded the amount which as per allegations is unfair and illegal trade practice. Accordingly, complaint has been filed for issuance of directions to OPs to refund Rs.10,08,037/- to him (complainant) with 14% interest p.a. and to pay him: Rs.5.00 lacs as compensation for deficiency in service, unfair trade practice, mental torture and agony and Rs.50,000/- as litigation expenses. Text of complaint is supported by affidavit.
2. OPs raised contest. In their jointly filed written statement; it is pleaded that complaint is false, frivolous and baseless. It is an abuse of process of law. Commission does not have jurisdiction, as per clause 55 of the agreement, which states that all disputes shall be referred to arbitration. It is pleaded that complainant had applied for commercial shop with M/s Jindal Realty on 29.06.2010. No Buyer Agreement was executed on above booking. OP No. 2-M/s Jagran Developers Pvt. Ltd. overtook development of project. It was duly intimated and consented by complainant as per letter dated 26.04.2013 (Annexure R-1 and R-2). Complainant is governed by terms and conditions of agreement dated 08.04.2014. Clause 27 thereof stipulates that developers contemplate to complete the construction of premises within 36 months from date of agreement with grace period of six month subject to force majeure circumstances. Scheduled date of delivery of possession was 08.10.2017 and complaint has been filed on 10.03.2017 claiming refund based on delayed possession which is erroneous. It discloses no cause of action. It is pleaded that complainant has not paid complete sale consideration as per Buyers Agreement. By denying other pleas of complaint; its dismissal has been prayed by asserting that there is no deficiency in service on the part of OPs. Text of written statement is supported by affidavit.
3. Parties led their respective evidence. Complainant-Om Parkash Alawadhi has appeared himself and got recorded his statement on oath on 18.09.2018 whereby he has testified on text of complaint. He also deposed on documents Ex.C-1 to Ex.C-4 and complainant’s evidence was closed on 18.09.2018. Per contra, OPs have tendered duly sworn affidavit Ex.OPW1/A of Sh. Sanjeet Kumar–authorized representative of both OPs and relied upon documents viz: Ex.RA, Ex.OP-1 to Ex.OP-4 and closed evidence vide statement of Sanjeet Kumar dated 07.07.2022.
4. We have heard learned counsel for the parties at length and with their able assistance have also perused the material brought on record of this complaint.
5. Learned counsel for complainant has urged that complainant is entitled to claim refund of amount so deposited by him with OPs for shop-cum-office which, though was allotted to him, but of which, he was never put in actual physical possession, strictly as per time frame work (maximum 42 months), so specified in clause 27 of Builder Buyer Agreement. It is urged that OPs cannot wriggle out from their liability to refund the amount on above scenario.
6. Per contra, learned counsel for OPs has urged that complaint is pre-mature; same has been filed before expiry of period of 42 months, stipulated in clause 27 of Builder Buyer Agreement, meant for delivery of possession. Further, it is urged that genesis of dispute involved in this complaint, was required to be referred to arbitration as per Builder Buyer Agreement and thus Consumer Commission has no jurisdiction. It is also urged that offer of possession letter dated 23.01.2020 was served upon complainant, thereby intimating him to take possession of unit No.GF-69 at Kurukshetra Global City, in project named ‘The Galleria’ within 30 days. It is urged that as per document Annexure A-1 appended along with letter of offer of possession; Rs.43,21,282/- was outstanding due towards complainant, to be paid by him. It is further urged that in fact Rs.10,12,935/- has been received from complainant which is apparent from demand letter dated 23.01.2020. Collectively, on strength of documents; it is urged that there arise no question of any deficiency in service or unfair trade practice on OPs part.
7. We have minutely analyzed rival submissions. Admittedly, complainant had applied for shop-cum-office commercial component in project named ‘The Galleria’ floated by OPs. Admittedly, Builder Buyer Agreement dated 08.04.2014 was executed. Admittedly, unit No. GF-69 was allotted to complainant. Document viz: Payment Report dated 06.07.2022 (Annexure A-2) concerning complainant mentions ‘cleared amount’ as Rs.10,12,935/- and this Commission accepts that Rs.10,12,935/- has/had been deposited by complainant being a fact admitted by OPs. Admittedly, as per OP’s demand letter dated 23.01.2020; total receivable amount was of Rs.43,21,282/- qua unit No. GF-69. No doubt, OPs have offered possession of this unit (GF-69) to complainant through its letter dated 23.01.2020 and commanded upon him to take possession within 30 days by paying due amount of Rs.43,21,282/- yet, complainant cannot be compelled to adhere to and follow said letter dated 23.01.2020 of OP No.2. Reason in this regard is obvious. There is sheer non-compliance of clause No. 27 of Builder Buyer Agreement on behalf of OP No. 2, as per which time is the essence of agreement viz-a-viz putting complainant in physical possession of allotted unit and this time limit, at its maximum was of 42 months, which already stood elapsed way back on 08.10.2017. Surprisingly, offer of possession letter is dated 23.01.2020. It is accordingly established that more than two years after expiry of stipulated date (08.10.2017) as per text of clause 27 of Builder Buyer Agreement; OP No. 2 has offered possession of allotted unit (GF-69) to complainant. From these facts, it is held that: complainant cannot be compelled to wait for possession of allotted unit for an abnormally prolonged period, without there being any fault on his part, despite that he had already parted with huge amount for the allotted unit.
8. OPs cannot be allowed to enrich themselves at the cost of complainant. Needless to say that OPs might have/had generated enormous gains from the amount deposited by complainant with it, regarding unit in question. Complainant has been put in a vulnerable state as he has neither been put in physical possession of allotted unit, timely, nor any refund of amount deposited by him has been given. OPs have created all types of sordid conditions for him by not adhering strictly to time limit meant for providing physical possession of allotted unit to complainant as per Builder Buyer Agreement. These ground realities have further added to the already worsened tale of woes of complainant. Builder Buyer Agreement constitutes a binding effect, so far as terms and conditions stipulated therein are agreed upon. Meaning thereby, OP No. 2 has to strictly adhere to the time line which was essence of builder buyer agreement for the purpose of handing over the possession. Once, there is violation on the part of OP No. 2 with regard to time limit regarding possession then an indefeasible legal right accrues in favour of complainant to claim refund, in total disregard to offer of possession so made by OPs. As a matter of fact, any completion certificate or occupation certificate obtained by OPs after expiry of timeline meant for handing over the possession as per agreement will not frustrate and curtail consumer’s right to claim refund. Deficiency in service and unfair trade practice on part of OPs is ex-facie proved.
9. Allied argument that complainant should have resorted to arbitration proceedings is bereft of credence as filing of complaint under Consumer Protection Act is a legally recognized remedy available to him and this remedy is independent and special. Hence, this contention on behalf of OPs stood repelled.
10. As a sequel to aforesaid discussion, this Commission of firm opinion that this complaint must succeed. Accordingly, it is accepted. Consequently, directions is issued to OPs to refund Rs.10,12,935/- to complainant within a period of 45 days from today and this amount (Rs.10,12,935/-) will also carry simple interest @7% p.a. from date of filing of this complaint till its realization. Complainant is also entitled to compensation of Rs.30,000/- for mental agony, harassment and litigation cost and this amount will not carry any interest. In case, OPs fail to discharge its liability in terms of this order within a period of 45 days then rate of interest would escalate from 7% p.a. to 10% p.a. for period of default.
11. Application(s) pending, if any stand disposed of in terms of the aforesaid judgment.
12. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The judgment be uploaded forthwith on the website of the Commission for the perusal of the parties.
13. File be consigned to record room.
Date of pronouncement: 30th September, 2024.
S.C. Kaushik Naresh Katyal
Member Judicial Member
Addl. Bench Addl. Bench
