Haryana

Panchkula

CC/150/2021

SHEKHAR SHARMA. - Complainant(s)

Versus

KONARK RAJHANS ESTATE PVT.LTD. - Opp.Party(s)

SANDEEP JASUJA

29 Nov 2022

ORDER

      BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,  PANCHKULA

                                                       

 

Consumer Complaint No	:	150 of 2021
Date of Institution	:	23.02.2021
Date of Decision	:	29.11.2022

 

 

Shekhar Sharma son of Sh. Harvansh Lal Sharma, aged about 66 years, R/o Flat No.524, S-2, Savitry Towers, VIP Road, Zirakpur(PB)-140603.

 

                                                                         ….Complainant

 

Versus

1.     M/s Konark Rajhans Estate Pvt.Ltd., Village Kot, Sector-14,       Extension  II, Panchkula-134118 through its Managing Director.

2.     The Managing Director, Konark Rajhans Estate Private Ltd. Village      Kot, Sector-14, Panchkula-134118.

3.     Subhash Chandra, Chairman Essal Group of Companies, Registered     Office: 18^th Floor, A-wing, Marathon Futurex, N.M.Joshi Marg, Lower   Parel, Mumabi-400013.

….Opposite Parties

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019.

 

Before:              Sh. Satpal, President.

                        Dr. Pawan Kumar Saini, Member

Dr. Sushma Garg, Member

 

 

For the Parties:   Sh.Sandeep Jasuja, Advocate for the complainant.  

                        Sh.Vivek Sheoran, Advocate for OP No.1.

                        Defence of OP No.2 already struck off vide order dated                    22.12.2021.

                        OP No.3 given up vide order dated 16.11.2022(Defence                    already struck off vide order dated 22.12.2021).

                         

ORDER

(Satpal, President)

1.             The brief facts of the present complaint are that the complainant being in need of dwelling unit had approached the OPs on 19.07.2016 for allotment of an Apartment in Group Housing Project, namely, ASHA Premia in Sector-14 Panchkula Extension II to be developed by OPs and booked a 3BHK flat/Apartment bearing no.A-0401, at level 4 by paying a sum of Rs.1,00,000/- vide booking receipt dated 19.07.2016 and said flat having super area measuring 1405 Sq.ft.(130.53 Sq. mtrs. approx.) was allotted vide provisional allotment letter dated 26.07.2016. An Apartment Buyers Agreement(hereinafter referred to as ABA) dated 08.08.2016 was executed between complainant and the OPs. The total price of the apartment including IDC, EDC etc. was Rs.39,31,870/-. It is further alleged that payment of Rs.38,25,376/- was made to Ops qua the price of the said apartment vide several receipts.  It is relevant to mention here that the complainant on 30.03.2019 and 26.04.2019 made written requests for shifting/changing his booked flat from No.A-401 to Flat no.A-806 on the same terms. The said request of the complainant was acceded by the Ops and vide email dated 19.06.2019, he was informed that Flat no.806 was confirmed in his name on the same conditions on which flat no.A-401 was allotted. It is alleged that as per Clause 9 of the ABA, the OP no.1 had to hand over possession of the Apartment within a period of 36 months from the receipt of the first installment i.e. 19.07.2016 and further grace period of 6 months subject to force majeure circumstances i.e. on or before 19.07.2019 i.e.(36 months) from 19.07.2016 but the OP No.1 had failed to deliver the possession of the apartment to the complainant and as such have committed  great deficiency  in service and unfair trade practice. The complainant has served a legal notice dated 31.12.2020 through registered post upon OPs. Due to the act and conduct of OPs, the complainant has suffered a great deal of financial loss, mental agony and harassment; hence, the present complaint.

2.             Upon notice, OP No.1 appeared through counsel and filed written statement raising preliminary objections qua its maintainability. It is alleged that as per Clause 30 of the ABA, if a dispute arises between the parties, the same was liable to be referred to Arbitrator. It is stated that there is no Managing Director as of now in Konark Rajhans Estates Private Limited and hence, OP No.2 does not exist. It is further averred that the consumer commission lacks jurisdiction in view of Section 79 read with Section 71 of the Real Estate(Regulation and Development) Act, 2016(hereinafter referred to as the RERA) wherein RERA alone has the jurisdiction to decide the controversy. It is further alleged that the OP has never refused to hand over the possession of the unit no.A-0806 and the delay in possession has occurred due to force majeure conditions as well as unforeseen circumstances, which were totally beyond the control of OP. It is further averred that the construction work is presently going on at full swing at the site and the possession of the booked unit would be delivered in near future. On merits, it is alleged that OP no.3 is no way liable for any relief claimed by the complainant and no agreement/ application has ever been executed between the complainant and OP No.3. It is also alleged that complainant was never assured to be paid interest @9% p.a. on the amount of Rs.20,00,000/-paid by him on 29.09.2017. It is specifically denied that the complainant has paid a total payment of Rs.38,25,376/-. The cheque bearing no.100907 amounting to Rs.3,22,276/- was bounced and hence no sum of money was received by the OP No.1 on 24.10.2016 as claimed by the complainant. It is further alleged that a total sum of Rs.35,03,100/- has been received till date from the complainant against his booked unit/apartment by the OP No.1. It is further alleged that the provision dealing with the delivery of possession as contained in Clause 9 of the ABA was not the essence of the contract and thus, no question of refund of any amount to the complainant has arisen and more so with interest. So, there is no deficiency in service on the part of the OP No.1 and prayed for dismissal of the present complaint.

                Upon notice, the Ops No.2 & 3 have appeared through learned counsel to contest the complaint; but he did not file the written statement despite availing several opportunities including the last opportunity. Therefore, the defence of OPs was struck off by this Commission, vide its order dated 22.12.2021. 

3.             Replication to the written statements of the OP No.1 was filed by the complainant reiterating the contents of the complaint while controverting the contentions of the OP No.1.

4.             The complainant has tendered affidavit as Annexure C/A along with documents Annexure C-1 to C-23 in evidence and closed the evidence by making a separate statement. On the other hand, the ld. counsel for the OP No.1 tendered affidavit Annexure R-A along with Annexure R-1 & R-2 and closed the evidence.

5.             We have heard the learned counsels for the complainant and OP No.1 and gone through the entire record available on file including the written arguments filed by the learned counsel for complainant as well as OP No.1, minutely and carefully.

6.             Admittedly, a flat bearing no.A-0401, Tower ‘A’ Type 3BHK (corner+park facing), Level 4 measuring 1405 Sq.ft.(130.53 Sq.mtrs. approx.) was allotted in favour of the complainant as per allotment letter dated 26.07.2016(Annexure C-4 and ABA(Annexure C-5), was executed between the complainant and OP on 08.08.2016. It is also an admitted factual position that the said flat was exchanged with flat no.A-806 in the same tower on the basis of application filed by the complainant. The total price of the flat including EDC, IDC etc. was Rs. 39,31,870/-. The payments of sum of Rs.35,03,100/- made qua the said flat by the complainant vide various receipts is also not disputed. The main grouse of the complainant is qua non delivery of the possession of the said allotted flat by the OPs and thus, it has been alleged that OPs have failed to adhere to the time schedule, within which, the possession was to be delivered. During arguments, the learned counsel for the complainant reiterating the averments made in the complaint has contended that OPs had failed to deliver the possession of the flat in question to the complainant within the stipulated period and thus, has violated the condition contained in Clause 9 of the ABA(Annexure C-5). The learned counsel has prayed for acceptance of the complaint by directing the OPs to refund the deposited amount along with compensation as prayed for in the complaint.

7.             The OP No.1 has contested the complaint by raising preliminary objections as well as on merits in its written statement. The first objection is that the ABA(Annexure C-5) contains Arbitration Clause, wherein it is provided that a dispute between the parties shall be settled through arbitration. The learned counsel for OP contended that the complaint is not maintainable in view of the provision contained in Clause 30 of the said Agreement, which provides for settling the dispute through arbitration.

8.             On the other hand, the learned counsel for the complainant vehemently controverted the contentions of the complainant qua the maintainability of the complaint and contended that, as per settled law, the remedy under the provisions of Consumer Protection Act is an additional remedy, which can be availed even if there is arbitration clause or some other remedy is available in other statute. The learned counsel in support of his contention has placed reliance upon following case laws:-

1. Sanjay Kumar Singh & Anr. Vs. M/s Ramprastha Promoter and Developer, consumer case no.2643 of 2017 decided on 01.07.2022(NC).

 

2. M/s Emaar MGF Land Limited Vs. Aftab Singh(SC)(law finder Doc  ID#1303589), DLF Limited Vs. Mridul Estate(pvt.) Ltd.(NCDRC)  (law finder Doc # 536745).

 

3. M/s National Seeds Corporation Ltd. Vs. M.Madhusudhan Reddy & Anr.(2012) 2 SCC 506 (SC)(Law Finder Doc Id # 333387).

 

4. Usha Rani Vs. Puma Realtors Pvt. Ltd.,(CSCDRC)(U.T.)(Law Finder Doc ID # 906475).

 

9.             The ration of law laid down in case laws as relied upon by the learned counsel for the complainant is that the remedy under the CP Act available to a consumer is in addition to any other remedy available under law and not in derogation of the remedies available to an aggrieved consumer and the same is fully applicable in the present complaint; thus, the objection is rejected.  

10.            The next objection is that the complaint is not maintainable before the Commission as the housing complex comprising the Flat in question is duly registered under Regulation and Development(hereinafter referred to as the RERA)Act, 2016 and by virtue of the provisions  contained in Section 79 read with Section 71 of RERA, the complaint can be entertained and adjudicated  by RERA alone.  

11.            This objection is also rejected in view of the ratio of law laid down by the Hon’ble Apex Court in case titled as IREO Grace Realtech Pvt.Ltd. Vs. Abhsihek Khanna & Others decided on 11.01.2021 vide its full bench reported in (2021) AIR(SC) Civil 1291.

12.            On merits, it is contended that the provision contained in Clause 9 of the ABA qua the delivery of the possession of the Apartment is/was not the essence of the contract. The learned counsel for the OP reiterating the averments made in the written statement has placed reliance upon the following case law:-

i.      Chand Rani Vs. Kamal Rani 1993-1-SCC-519.

ii.      Govind Prasad Chaturvedi Vs. Hari Dutt Shastri 1977-2-SCC-539.

iii.     Gomathinayagam Pillai Vs. Palaniswami Nadar 1967-1-SCR-227.

 

13.            Further it is contended that the delay in the delivery of the possession of the Flat has occurred due to force majeure conditions as well as unforeseen circumstances, which were totally beyond the control of the OP. It is contended that the construction could not be completed within the tentative time frame as given in the Agreement as various factors beyond control of Ops came into play, including economic meltdown, sluggishness in the real estate sectors, defaults committed by the allottees in making timely payments of the installments. 

14.            Concluding the arguments, it is submitted that the construction work at site is being carried out at full swing and the possession of Flat would be delivered very shortly.

15.            On the other hand, the learned counsel for the complainant while controverting the assertions of the Ops qua construction and development at site contended that as per latest progress report dated  30.04.2022(Annexure C-23) furnished by OPs themselves reveals that structure of upper floors of all towers is yet to be completed and after completion of the same, the major and time consuming work of raising  internal  walls, plaster of walls, flooring,  electrical  work,  plumber  work, fixing  of tiles  in kitchen  and bathrooms, fixing  of other fitments, constructing and development of common areas/facilities etc. would still to be carried out. It is contended that the Op No.1 has very vaguely averred that possession would be delivered in near future without specifying the date as it is aware that the project would take still many years to complete. It is further contended that as per latest progress report dated 30.04.2022(Annexure C-23), only 14 persons are working at site, which clearly proves the slow pace of work at site. Continuing the arguments, the learned counsel contended that the Ops cannot be permitted to draw any kind of benefit on the ground of introduction of GST, demonetization and Covid -19 etc. as the GST and demonetization were introduced during the period 2016 -17 and the stipulated period for delivery of the possession was prior to the occurrence of Covid-19 and thus, prayed for acceptance of the complaint by granting the relief as claimed for in the complaint.

16.            The main grouse of the complainant qua the non delivery of the possession within stipulated period is based on the provision contained in Clause 9 of the ABA(Annexure C-2), which, for the sake of convenience and clarity, is reproduced as under:-

 “Schedule for Possession of the said Apartment

The company based on the present plans and estimates contemplates to offer possession of the said Apartment to the Apartment allottee within a period of 36 months from the receipt of first installment against allotment of the Said Apartment plus a grace  period of 6 months, unless there shall be delay or failure due to Force Majeure  conditions and due to failure of Apartment Allottees(s) to pay in time the total Sales Price and other charges and dues/payments mentioned in this Agreement  or any failure  on the part of the Apartment Allottee(s) to abide by all or any of the terms and conditions of this Agreement.

The Allottee(s) agrees that time is essence with respect to payment of Total Consideration and other charges, deposits and amounts payable by the Allottee(s) as per this Agreement  and/or as demanded by the Company from time to time and also to perform/observe all the other obligations of the Allottee(s) under this Agreement. The company is not under any obligation to send any reminders for the payments to be made by the Allottees(s) as per the schedule of payments and for the payments to be made as per demand by the, company or other obligations to be performed by the Allottee(s).

17.            Undisputedly, the OP has failed to adhere to the time schedule qua the delivery of the possession as stipulated vide above mentioned Clause 9 of the ABA. We agree with contentions raised by the learned counsel for the complainant that the development works at site is incomplete and the pace of construction is very slow. The OP has admitted that the progress of the completion of the development works at site has got delayed due to certain unavoidable reasons including force majeure conditions.

18.            Now, the question arises as to whether the time schedule as given vide said Clause 9 of the Agreement qua the delivery of the possession of the flat was the essence of the contract.

19.            The Hon’ble National Commission in consumer case no.84 of 2017 Dr.Shriram Trivedi Vs. National Building Construction Corporation Ltd. & Anr. decided on 20.09.2019 has declined the plea of builder with regard to the force majeure conditions as well as to the plea that the time is not essence of the contract. The relevant para no.10 of the above said judgment, for the sake of convenience and clarity, is reproduced as under:-

 “We are of the considered view that the reasons given by NBCC that the delay is due to Force Majeure conditions cannot be accepted. The submissions by Learned counsel appearing for NBCC that the compensation, if any, shall be payable only after  four years  plus valid extension due to Force Majeure reasons from the date of allotment  is untenable in the light of the fact that we have already held that the reasons cannot be construed to be Force Majeure. The contention of the learned counsel appearing for NBCC that “Time is not Essence of the Contract” also cannot be sustained in the light of the view taken by the Hon’ble Supreme Court in Banglore Development Authority Vs. Syndicate Bank (2007) 6 SCC 711 in which case the Hon’ble Supreme Court has laid down that even if the time is not essence of the contract ‘substantial reasons’ ought to be given by the Developer for any delay in the delivery of possession. In the instant case, at the cost of repetition, no such cogent reasons were given”.

20.            Apart from above, the Hon’ble National Commission in consumer complaint no.1429 of 2015 titled as Balinder Krishan Kaushal Vs. M/s Parsvnath Developers Ltd. decided on 25.02.2020 has held that the buyers of a flat cannot be asked to wait for indefinite period for possession of flat. The relevant para No.8 of the above said judgment, for the sake of convenience and clarity, is reproduced as under:-

 “Since the opposite party is not in a position to give the possession of the flat and the buyer cannot be asked to go on waiting for an indefinite period. It has been so held by the Hon’ble Supreme Court in Pioneer Urban Land & Infrastructure Ltd.  Vs. Govindan Raghvan II(2009) CPJ 34(SC) that where there is delay  in handing  over the possession, the allottee cannot be forced to wait indefinitely  and compelled to take the possession of the flat and he is entitled for the refund of the money”.

21.            Recently, the Hon’ble National Commission in consumer case no.2562 of 2018 titled as Sangeeta Agarwal & Anr Vs. M/s Chintels India Ltd. vide its order dated 27.05.2022  has held that plot  purchaser cannot be made to wait for an indefinite period of time hoping to obtain possession and that seeking refund of amounts deposited is a valid Redressal. The Para No.14 of the said order is reproduced as under:-

The Hon’ble Supreme Court in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra in Civil Appeal no.3182 of 2019 decided on 25.03.2019 as well as in Pioneer Urban Land and Infrastructure Ltd. Vs. Govindan Raghavan and connected matter in CA No.12238 of 2018 decided on 02.04.2019-(2019) 5 SCC 725, has held that flat purchasers cannot be made to wait for an indefinite period of time hoping to obtain possession and that seeking refund of amounts deposited is a valid Redressal. In the present complaint, there is neither a valid occupation certificate nor can the opposite party claim to have made a proper offer of possession. Therefore, there is, merit in the complainants’ averments.

 

22.            The plea taken by the OP that the force majeure conditions prevented them to complete the construction work at site as per schedule is not tenable as the plea is neither corroborated nor substantiated by any documentary evidence. The Ops have preferred not to place on record the report issued by any executive(civil/electrical) engineer in order to show the status of completion of construction at site. The OPs have further failed to place on record the status report qua making the adequate and proper provision for the sewerage, water, electrical works and roads etc. at site.  It is well settled legal proposition that mere bald assertions, which are not corroborated and substantiated by any adequate, cogent and credible evidence, do not carry any evidentiary value. Further, nothing has been placed on record by OP to show the status of development works at the site. Therefore, the OPs are not entitled to draw any kind of benefit on the basis of alleged force majeure conditions.

23.            In view of the aforementioned factual and legal position, we conclude that OPs No.1 & 2 are liable to refund the deposited amount along with interest.

24.            Now, we advert to the relief clause, wherein it is found that the complainant has prayed for the refund of his deposited sum amounting to Rs.38,25,376/- along with interest. However, a sum of Rs.35,03,100/- has been found to have been deposited by the complainant with OPs No.1 & 2 instead of Rs.38,25,376/-. In view of the deficient services rendered by the OPs No.1 & 2 to the complainant, he is entitled to the refund of sum of Rs.35,03,100/- as deposited qua the price of the flat along with interest @9% P.M.(simple interest) from each deposit. Apart from it, the complainant is also entitled to adequate compensation on account of mental agony, harassment suffered by him. Further, the complainant is also entitled to the reimbursement of the expenses as incurred by him on account of litigation charges.

25.            As a sequel to above discussion, we partly allow the present complaint with the following directions to the OPs No.1 & 2:-

1. To refund a sum of Rs.35,03,100/- to the complainant along with interest @ 9% per annum w.e.f. the date of each deposit  till actual realization.
2. To pay an amount of Rs.25,000/- to the complainant on account of mental agony and harassment.
3. To pay an amount of Rs.5,500/- as cost of litigation charges.

 

26.            The OPs No.1 & 2 shall comply with the order within a period of 45 days from the date of communication of copy of this order failing which the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, against the OPs No.1 & 2. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced on:29.11.2022

 

 

 

Dr.Sushma Garg          Dr. Pawan Kumar Saini         Satpal         

           Member                          Member                     President

 

Note: Each and every page of this order has been duly signed by me.

 

                                          Satpal,                             

                                        President