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.648 of 2017

Suresh Kumar Arora S/o Sh. Shankar Dass and (ii) Mrs. Manju Arora w/o Sh. Suresh Kumar Arora, both R/o 93, Green Park, Hisar, Haryana.                                                                        ....Complainants

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, registered office: Sector-29, Umri Road, Kurukshetra through its Project Manager.                                                              ...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:-

          Complainants have 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. They were assured that: possession will be handed over to them within two years from date of allotment and believing so, they invested their money. Vide OP No. 2’s letter dated 26.04.2013, they were 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said OP No. 2 will undertake construction and development of ‘The Galleria City’ as all developing rights have been withdrawn from M/s Jindal Realty Pvt.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 complainants and OP No. 2 on 01.04.2014. As per clause 27 thereof, possession of shop-cum-office was to be handed over to them 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 them while they have paid over Rs.22,75,795/- which is apparent from letter Annexure C-4. In spite of lapse of seven years (as on date of filing of this complaint); OP has not handed over possession to them, 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.22,75,795/- to them (complainants) with 12% interest p.a. and to pay them: 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 complainants 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 complainants as per letter dated 26.04.2013 (Annexure R-1). Complainants are governed by terms and conditions of Buyers agreement dated 01.04.2014. Clause 27 thereof stipulates that developers would contemplate to complete the construction of premises within 36 months from date of agreement with grace period of six months subject to force majeure circumstances. Scheduled date of delivery of possession was 01.10.2017 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 complainants have 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-Suresh Kumar Arora 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-6 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-6 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 complainants has urged that complainants are entitled to claim refund of amount so deposited by them with OPs for shop-cum-office which, though was allotted to them, but of which, they were 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 24.01.2020 was served upon complainants, thereby intimating them to take possession of unit No.G-39 at Kurukshetra Global City, in project named ‘The Galleria’ within 30 days. It is further urged that in fact Rs.22,80,693/- has been received from complainants which is apparent from payment plan detail report (Ex.R-3) dated 06.07.2022. 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 01.04.2014 was executed. Admittedly, unit No. G-39 was allotted to complainants. Document viz: Payment Report dated 06.07.2022 (Annexure R-3) mentions ‘cleared amount’ as Rs.22,80,693/- and this Commission accepts that Rs.22,80,693/- has/had been deposited by complainants, being a fact admitted by OPs through their own document. No doubt, as per OPs stand; they have offered possession of this unit (G-39) to complainants through its letter dated 24.01.2020 yet, complainants cannot be compelled to adhere to and follow OPs’ dictates. 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 complainants 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 to complainants has been given on 24.01.2020. 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 (G-39) to complainants. From these facts, it is held that: complainants cannot be compelled to wait for possession of allotted unit for an abnormally prolonged period, without there being any fault on their part, despite that they had already parted with huge amount for the allotted unit.

8.      OPs cannot be allowed to enrich themselves at the cost of complainants. Needless to say that OPs might have/had generated enormous gains from the amount deposited by complainants with it, regarding unit in question. Complainants have been put in a vulnerable state as they have neither been put in physical possession of allotted unit, timely, nor any refund of amount deposited by them has been given. OPs have created all types of sordid conditions for them by not adhering strictly to time limit meant for providing physical possession of allotted unit to complainants as per Builder Buyer Agreement. These ground realities have further added to the already worsened tale of woes of complainants. 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 complainants 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 complainants 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 them 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.22,80,693/- to complainants within a period of 45 days from today and this amount (Rs.22,80,693/-) 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: 30^th September, 2024.

                                              S.C. Kaushik               Naresh Katyal     

                                              Member                        Judicial Member

                   Addl. Bench                Addl. Bench