RESERVED
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
UTTAR PRADESH, LUCKNOW
COMPLAINT NO. 120 OF 2018
- Smt. Kanchan (Mishra) Sharma
W/o Sri Amit Paul Sharma
Present R/o J-64/209-210
New Sagarpur, Nangal Raya
Nangal Raya, Dakshin Pashchimi Delhi
Delhi – 110046
Parment R/o House No. 185, Tahsil & District
Pathan Kote, New Colony, Ladochak
Gurudaspur, Pathan Kote, Punjab
PIN Code 145001
- Amit Paul Sharma
S/o Sri Ajit Paul Sharma
...Complainants
Vs.
- Managing Director
Victoryone Intellect Project Private Limited
H-56, Sector-63
Noida-201301
- Branch Manager
Indiabulls Housing Finance Limited
First Floor, B-4, Sector-63
Noida, Pin Code-201301
...Opposite Parties
BEFORE:
HON'BLE MR. JUSTICE ASHOK KUMAR, PRESIDENT
HON’BLE MR. SUSHIL KUMAR, MEMBER
For the Complainant : Sri Akhilesh Trivedi, Advocate.
For the Opposite Party No.01 : Sri Rajesh Chadha, Advocate.
For the Opposite Party No.02 : Sri Vikas Agrawal, Advocate.
Dated : 12-04-2023
JUDGMENT
PER MR. JUSTICE ASHOK KUMAR, PRESIDENT
Heard Sri Akhilesh Trivedi, learned Counsel for the complainants, Sri Rajesh Chadha, learned Counsel for the opposite party No.01 and Sri Vikas Agrawal, learned Counsel for the opposite party No.02.
The instant complaint has been filed under Section 17(1) of the Consumer Protection Act, 1986 by Smt. Kanchan (Mishra) Sharma and
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another against the opposite parties Managing Director, Victoryone Intellect Project Private Limited and Branch Manager, India Bulls Housing Finance Limited with the following reliefs/prayer:-
- यह कि परिवादिनी/याचिनी को मु0 रू0 कुल धनराशि रू0 31,88,194/- (इक्तीस लाख अट्ठासी हजार एक सौ चौरान्नबे रूपये) मय 18 प्रतिशत वार्षिक वाद योजित करने की तिथि से देय तिथि तक दिलाये जाने का आदेश पारित करने की कृपा करें।
- यह कि विपक्षी सं0-1 द्वारा परिवादिनी/याचिनी को जो शारीरिक व मानसिक क्लेश क्षतिपूर्ति हेतु रू0 35,00,000/- (पैंतीस लाख रूपये) दिलाया जाना न्यायाहित में आवश्यक है।
- यह कि गत लगभग ग्यारह माह से निरन्तर आज तक परिवादिनी/याचिनी इतने समय से लगातार किराये के मकान में रहने के कारण परिवादिनी/याचिनी की जो धनराशि खर्च हुयी है, उक्त मद हेतु बतौर क्षतिपूर्ति मु0रू0 5,00,000/- (पांच लाख रूयये) दिलाया जाना न्यायहित में परम आवश्यक है।
- यह कि विपक्षी सं0-1 द्वारा परिवादिनी/याचिनी से लगभग पिछले एक वर्ष से निरन्तर छल कपट विश्वासघात करने हेतु बतौर क्षतिपूर्ति धनराशि मु0रू0 20,00,000/- (बीस लाख रूपये) दिलाया जाना न्यायोचित व विधिसम्मत है।
- यह कि विपक्षी सं0-1 द्वारा परिवादिनी/याचिनी को बार-बार विपक्षी सं0-1 के आफिस अनावश्यक दौड़ाये जाने हेतु पत्राचार करने के बावजूद कोई परिणाम न निकलने पर मजबूरन माननीय न्यायालय में वर्तमान मे वाद योजित करना पड़ रहा है, जिस हेतु भारतीय संविधान व उपभोक्ता संरक्षण अधिनियम में उल्लिखित नियमों, विनियमों, उपनियमों के अनुसार परिवादिनी/याचिनी को महिला होने के नाते न्यायालय में प्रत्येक पेशी पर आने हेतु एक सहचर सहित आने-जाने का खर्च, मुकदमें का खर्च, कोर्ट फीस, मुंशी खर्च, कागज टाइप खर्चख् व अधिवक्ता फीस हेतु रू0 2,00,000/- (दो लाख रूपये) की नितान्त आवश्यक है, जिसे विपक्षी सं0-1 से दिलाया जाना न्यायहित में आवश्यक है।
- यह कि परिवादिनी/याचिनी ने विपक्षी सं0-1 के विरूद्ध कुल क्षतिपूर्ति धनराशि रू0 95,39,600/- (पिन्चान्नबे लाख उन्तालिस हजार छ: सौ रूपये) दिलाये जाने की याचना न्यायालय से की है।
- यह कि वाद खर्च परिवादिनी/याचिनी को विपक्षी सं0-1 से दिलाया जाये।
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- यह कि माननीय न्यायालय अन्य अनुतोष जो उचित समझे, परविादिनी/याचिनी को विपक्षी सं0-1 से दिलाये जाने का आदेश पारित करने की कृपा करें।
Facts of the case stated in brief are that the opposite party No.01 is a private limited Company and its Managing Director dealing with all the day to day affairs of the Company whereas the opposite party No.02 is the financier and is involved in rendering service of financing the unit which is applied for by the consumers in the project of the opposite party no.01.
It has been alleged by the complainants in their complaint that the opposite party No.01 is engaged in the construction of flats/units with all basic civic amenities, lucrative advertisements are made by the opposite party No.01 to attract the consumers to book residential accommodation in its scheme known as ‘Victoryone Central’ situated at Plot No. GH 02/E, Sector-12, Greater Noida, District Gautam Budh Nagar.
On the assurance of timely construction of the unit/apartment, the husband of the complainant no.1 had applied for allotment of a unit with the opposite party No.01/builder/company after making payment of Rs.1,00,000/- towards the booking amount. The opposite party No.01 by means of letter of allotment dated 19-03-2016, a Flat No. G-1803 situated at Floor No.17 in Block-G admeasuring 1210 square feet was allotted to the complainants. The husband of the complainant No.01 again paid Rs.3,807/- by Cheque No.805968 and Rs.10,000/- by cheque no.805969 both dated 20-05-2017 to the opposite party No.01 for which receipts have been issued by the opposite party No.01.
It has been alleged by the complainants in their complaint that again the husband of the complainant No.01 paid Rs.25,93,573/- by cheque no.988111 dated 26-05-2016 of Axis Bank, Mumbai and Rs.1,35,999/- to the opposite party No.01.
It has been further stated by the complainant in her complaint that her husband has also paid Rs.1,00,000/- as cash to the opposite party No.01 for stamp fees in presence of his friend. The complainant’s husband has also paid Rs.2,44,815/- by cheque No.805963 dated 02-05-2016 of HDFC Bank to the opposite party No.01 for which the receipt has been issued by the opposite party No.01.
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It has been stated by the complainant in her complaint that till 20-05-2017 her husband has paid total sum of Rs.31,88,194/- to the opposite party No.01. As per the allotment letter dated 19-03-2016 the cost of flat was Rs.33,39,600/-.
The opposite parties assured the complainants that the payment of the installments is to be made in accordance with the stages of the construction. The cost sheet of the unit to be constructed as well as the specifications were agreed between the parties. The opposite party assured the complainant that the construction work of the unit as well as of the project shall be completed by 24 months and within an extended period of 6 months thereof. The total sale cost of the unit was Rs.33,39,600/- and the payment mode was construction linked. The payment with respect to the allotted unit was to be made on demand and in accordance with the construction work to be carried out by the opposite parties No. 01.
It has been further stated in the complaint that the opposite party No.01 persuaded the complainant’s husband to opt for the housing loan from the opposite party No.02 Indian Bulls Home Loan Finance Company Limited under the corporate agency arrangement. Thus the complainants had applied for the financial assistance from the opposite party No.2 and by means of letter dated 05-08-2016 loan of Rs.28,00,000/- was sanctioned to the complainant and the opposite party No.02 has disbursed Rs.27,40,000/- to the opposite party No.01 which is evident from the letter dated 05-08-2016.
It has been further stated in the complaint that the opposite party No.01 persuaded the complainant’s husband to opt for the home insurance of the allotted flat for which the complainant had got the flat insured from the ICICI Lombard.
It is stated by the complainant in her complaint that the opposite party No.01 has illegally demanded various amounts on different heads by sending demand letters to the allottee. Thereafter the complainant’s husband has sent the legal notice to the opposite party no.01 stating therein that the complainant has paid Rs.31,88,194/- to the opposite party No.01 till June, 2016 and the opposite party N.01 shall handover the possession of the unit within a month after the sale deed.
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It has been alleged in the complaint that the opposite party No.01 has committed serious deficiency in service by not constructing the unit of the complainant within the agreed period of time schedule and the complaint is maintainable before this Commission under the provision of the Consumer Protection Act 1986 and this Hon’ble Commission has both pecuniary as well as territorial jurisdiction to entertain and adjudicate the complaint. The complainants are the consumer of the opposite parties within the terms meaning and expression as is provided for the consumer under the provisions of the Consumer Protection Act, 1986. The cause of action in this case is continuous and recurring and this complaint case is within the period of limitation as per the provisions of the Consumer Protection Act, 1986.
Learned Counsel for the complainants has placed reliance of certain annexures which are filed alongwith the complaint namely Annexure -1 which is the affidavit of Sri Amit Paul Sharma authorizing his wife Smt. Kanchan Sharma to file complaint and contest the case.
Annexure-1Aa to the complaint is the Photostat copy of the Receipt No. Rec/4128 of Rs.1,00,000/-.
Annexure-2 to the complaint is the Allotment Letter dated 19-03-2016.
Annexur-3 to the complaint is the photostat copy of the Receipt No. Rec/5265 dated 20-05-2017 of Rs.3,807/-.
Annexure-4 to the complaint is the Photostat copy of the Receipt No. Rec/5266 dated 20-05-2017 of Rs.10,000/-.
Annexure-5 to the complaint is the Photostat copy of the Receipt No. Rec/4613 dated 01-06-2016 of Rs.25,93,573/-.
Annexure-6 to the complaint is the Photostat copy of the Receipt No. Rec/4614 dated 01-06-2016 of Rs.1,35,999/-.
Annexure-7 to the complaint is the statement of account of Amit Paul Sharma with HDFC Bank.
Annexure-8 to the complaint is the Application Form
Annexure-9 to the complaint is the Photostat copy of housing loan sanctioned letter dated 05-08-2016 of Indiabulls.
Annexure-10 to the complaint is the statement of account of Amit Paul Sharma with HDFC Bank.
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Annexure-11 to the complaint is the Summary of Account of Amit Paul Sharma with Intellect Project Pvt. Ltd.
Annexure-12 to the complaint is Intimation Cum Confirmation Letter dated 13-07-2017 of Intellect Projects Pvt. Ltd.
The opposite party No.01 Victoryone Intellect Project Private Limited has filed the written statement and denied the allegations made by the complainant in its complaint.
It has been stated by the opposite party in its written statement that the area and cost of the disputed flat are estimated.
It has been further stated by the opposite party No.01 in its written statement that the complainant has not deposited the balance amount and other charges of disputed flat. The opposite party No.01 is still ready to handover the possession of the disputed flat if the complainant deposits the balance amount and other charges of the disputed flat.
It has been stated by the opposite party No.01 in its written statement that the estimated cost of the disputed flat was Rs. 33,39,600/- (Without Tax) against which the complainant has paid only Rs.30,88,194/-.
It has been further stated by the opposite party No.01 in its written statement that no cause of action has accrued to the complainant to file the complaint and the grounds taken by the complainant for filing the complaint are totally incorrect, false and fabricated and the complaint is liable to be dismissed with cost.
It has been stated by the opposite party No.01 in its written statement that in the allotment letter the super area of the flat has been mentioned as 1210 sq. ft. but after construction of the flat the super area of the flat has been increased and the area of the flat is 1252.35 sq. ft. The complainant has to pay the cost of the increased super area 42.35 sq. ft.
The opposite party No.01 has further stated in its written statement that several letters have been sent to the complainant to pay the balance amount alongwith other charges so that opposite party No.01 can deliver the possession of the disputed flat but the complainant has not paid the balance amount, hence the opposite party
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No.01 was unable to handover the possession of the disputed flat to the complainant whereas the flat was ready for handing over the possession to the complainant within the prescribed time.
It has been stated by the opposite party No.01 in its written statement that the complainant has wrongly alleged in his complaint that Rs.1,00,000/- cash has been given to the opposite party No.01 for stamp charges whereas whatever amount has been deposited by the complainant with the opposite party No.01 the opposite party No.01 has issued the receipts to the complainant. The complainant has only paid Rs.30,88,194/- to the opposite party No.01 for which the receipts has been issued to the complainant.
The opposite party No.02 Indiabulls Housing Finance Limited, the financier has filed the preliminary objections on maintainability of complaint case and has stated that it has engaged in the business of Housing Loan and Loan Against Property and is governed by regulations of National Housing Bank, New Delhi.
It has been stated by the opposite party No.02 in its preliminary objection that the complainant has failed to point out or show any deficiency or unfair practice on behalf of the opposite party No.02 which facilitated and granted a loan to the complainant as per terms and conditions of Loan Agreement and Tripartite Agreement and the complainant has admitted the same in the complaint case and there is no dispute about loan.
It has been further stated by the opposite party No.02, the financier in its preliminary objection that the complainant’s husband Sri Amit Pal Sharma undisputedly availed a loan facility of Rs.28,33,691/- (Rs.27,40,000/- vide Loan Agreement dated 25-05-2016 and Rs.93,691/- vide Loan Agreement dated 30-05-2016) for purchase of a house from opposite party No.01.
It is stated by the opposite party No.02 that there is no dispute between the complainant and opposite party No.2 relating to loan availed by him and no grievance has been expressed by the complainant in her entire complaint against the opposite party No.2 as well as the complainant has not sought any relief against the opposite party No.2 in the complaint.
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The evidence by way of affidavit has also been filed by the opposite party No.02 Indiabulls Housing Finance Limtied which is available in the record.
On 17-03-2023 learned Counsel for the complainant has placed on record the documents accompanied by affidavit of complainant Sri Amit Paul Sharma after servicing its copy of the learned Counsel for the opposite party No.01 as well as learned Counsel for the opposite party No.02 against which no reply has been filed by the learned Counsel for the opposite party No.01. The details of the documents are as under:-
- Report of Sri Ajai Kumar Singh, Fire Brigade Officer, Echotech-3, Greater Noida, Gautam Budh Nagar dated 04-09-2020 filed before the Chief Judicial Magistrate, District Gautam Budh Nagar in Complaint Case No. 12624/2020 regarding non completion of work with regard to project of opposite party No.01.
- Letter No.85/Sa-85/2020 dated 15-06-2020 issued by Dr. Archana Dwivedi, Regional Officer, Uttar Pradesh Pollution Control Board, Greater Noida to the opposite party No.01 regarding non completion of the work.
- Site Inspection Report dated 27-08-2021 of Assistant Manager (Mobile Squad).
- News paper report and social media report.
- Site Inspection Report of RERA.
- Copy of First Information Report (Under Section 154 Cr.P.C.)
Learned Counsel for the complainants has also filed the various coloured photographs of the site.
We have heard the learned Counsel for the parties and perused the entire documents available on record very carefully.
It has been argued by the learned Counsel for the complainants that the opposite party No.01 is liable to refund the entire amount of Rs.31,88,194/- deposited by the complainants alongwith interest at the rate of 18% with effect from the date of institution of complaint till the date of refund of the entire deposited amount as the opposite party No.01 has committed serious deficiency in service. The Hon’ble
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Commission may also direct the opposite party No.01 to refund the interest paid by the complainants to the opposite party no.2 and also award compensation and damages against the opposite party no.01 for committing serious deficiency in service as well as Unfair Trade Practice.
It has been further argued by the learned Counsel for the complainants that a Flat No. G-1803 situated at Floor No. 17 in Block-G admeasuring 1210 square feet was allotted to the complainants vide allotment letter dated 19-03-2016 and as per Clause 15(a) the flat was to be completed by 24 months and within an extended period of 6 months thereof. The unit allotted to the complainants has not been completed by the opposite party No.01. No Occupancy Certificate or Completion Certificate was obtained by the opposite party No.01. The opposite party has submitted Part Occupancy Certificate for Tower D, Tower E, Tower F and Tower G. The unit allotted to the complainants is still under construction in Tower-G. Further the Counsel for the opposite party No.2 has conceded to the fact that entire amount of loan was disbursed to the opposite party builder on the basis of information furnished by the opposite party builder and no independent audit was done by the bank.
It is argued by learned Counsel for the complainants that as per the construction linked plan it was incumbent upon the opposite party No.02, the financier to only release the sanctioned loan amount to the builder in strict accordance with the plan as enumerated. However, the opposite party No.02 the financier has released the entire loan sanctioned amount in connivance with the opposite party/builder. The opposite party No.02 is currently charging heavy interest and instalments from the complainants on a monthly basis.
It has been further argued by the learned Counsel for the complainants that clause 15 c of the allotment letter clearly enumerates that in case of delay in construction of the said Flat for reasons other than force majeure or beyond control of developer, the developer shall pay a sum at the rate of Rs.10/- per sq. ft. of Super area per month for the period of delay three months, and Rs.15/- per sq. ft. saleable/leasable area per month to intending allottee for the period of
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delay beyond three month provided, however, that the intending allottee has made the payment of all instalment towards the sale consideration amount and other consideration of flat in time without making any delay to owner/developer.
Learned Counsel for the opposite party/builder has vehemently argued that the complainants were supposed to pay the estimated cost of the flat amounting to Rs.33,39,600/- (without tax) plus other charges as agreed upon and mentioned in the allotment letter, but complainant has only paid Rs.30,88,194/-.
Clause 15(a) of the allotment letter provides that the owner/developer shall complete the development/construction of the flat by 24 months and within an extended period of 6 months thereof. The completion date is subject to force majeure conditions and other reasons beyond control of the developer. No claim by way of damages/compensation shall lie against the developer in case of delay in handing over the possession on account of said reasons and developer shall be entitled to a reasonable extension of time for the delivery of possession of the flat to the allottee.
It is argued by the learned Counsel for the opposite party builder that the project in question where the flat of the complainants is allotted is huge project consisting of hundreds of flats situate therein. The opposite party builder inspite of facing real estate recession in the market and coupled with other difficulties, the developer still completed the flats and accordingly complainants were informed by letters to deposit the balance amount alongwith other charges and were offered to take possession vide letter dated 21-09-2017, reminder letter dated 23/24/10-2017. The complainants were reminded time and again for the payment of dues and to take possession but the complainants did not bother to pay the dues.
Learned Counsel for the opposite party builder has submitted that the opposite party has procured part Completion Certificates from the competent authority of various towers of the project being granted vide letter dated 11-06-2018. The opposite party builder vide its letter dated 25-04-2017 also sought Occupancy Certificate followed with another letter dated 17-11-2018 seeking Completion Certificate of
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Towers A, B, C, D. The said letter was sent in pursuance to the letter dated 25-04-2017 and as desired by the competent authority.
It is submitted by learned Counsel for the opposite party builder that in respect of having a Completion Certificate from the competent authority, the kind attention is drawn to Sub-section-5 of Section-4 of the U.P. Apartment (Promotion of Construction, Ownership & Maintenance Act, 2010). The sub section-5 is reproduced below:-
“(5) An apartment may be transferred by the promoter to any person only after obtaining the completion certificate from the prescribed sanctioning authority concerned as per building bye laws.........”
Provided further that if the completion certificate is not issued by the prescribed sanctioning authority with three months of submission of the application by the promoter complete with all certificates and other documents required, the same shall be deemed to have been issued after the expiry of three months.”
It has been argued by the learned Counsel for the opposite party No.02 Indiabulls Housing Finance Limited, the financier that it has engaged in the business of Housing Loan and Loan Against Property and is governed by regulations of National Housing Bank, New Delhi and the present complaint filed by the complainants against the opposite party No.01, the builder and the opposite party No.2 has been made formal party. The complainant has failed to point out or show any deficiency or unfair practice committed by the opposite party No.02 which only facilitated and granted a loan to the complainant as per terms and conditions of Loan Agreement and Tripartite Agreement and the complainant has admitted the same in the complaint case and there is no dispute about loan.
It has been further stated by the opposite party No.02, the financier that the complainant’s husband Sri Amit Pal Sharma undisputedly availed a loan facility of Rs.28,33,691/- (Rs.27,40,000/- vide Loan Agreement dated 25-05-2016 and Rs.93,691/- vide Loan Agreement dated 30-05-2016) for purchase of a house from opposite party No.01.
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It is contended by the learned Counsel for the opposite party No.2 that there is no dispute between the complainant and opposite party No.2 relating to loan availed by him and no grievance has been expressed by the complainant in her entire complaint against the opposite party No.2 as well as the complainant has not sought any relief against the opposite party No.2 in the complaint, hence the opposite party no.2 may be exonerated from any liability.
It is argued by learned Counsel for the opposite party No. 02 that on the request of complainants the opposite party No.02 provided the home loan to the complainants as per procedure and guidelines of the R.B.I. and provided best services to the complainants and always acted as per tripartite agreement, rules and regulations and prevailing practice. The grievances of the complainants are against the opposite party No. 01 and the opposite party No.2 the financier has been made party in the instant complaint unnecessarily. The role of the opposite party No.2, the financier is only restricted to conferring of home loan facility availed by the customers and the financier is not responsible for construction and delivering of the unit.
Learned Counsel for the opposite party No.02, the financier has further argued that the Tripartite Agreement executed between customers, builder and financier expressly lays down the rights and responsibilities of all the parties to the agreement. The bank shall made disbursement of the facility as per the instructions of the Allottee/Borrower rather directly to the owner/developer or to the Allottee/Borrower. The opposite party no.02 the financier shall not be responsible to ensure or ascertain the progress of the construction and mere demand for payment would be sufficient for the Bank to effect the disbursement.
Learned Counsel for the opposite party No.02 has further argued that the present complaint disclosed no cause of action against the opposite party No.2 as the main grievance of the complainants pertains to the non-possession and incomplete construction of the unit and refund of the amount paid in lieu of the purchase of the property. The main portion of the consideration amount of the said flat/unit is paid by the opposite party No.02, the financier to the builder, not the
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complainant. The opposite party No.02, the financier always provided best service to the complainants and always acted as per tripartite agreement, rules and regulations of RBI and prevailing practice. There is no deficiency in service or negligence or unfair trade practice on the part of the opposite party No.2, the financier, hence the instant complaint is not maintainable against the opposite party No.2 and is liable to be dismissed with special cost.
We have heard learned Counsel for the parties and the submission of Counsel for the respective parties and perused the material evidence available on record.
The facts of the case are already mentioned hereinabove hence need no repetition. From the perusal of the facts narrated hereinabove it is clear that so far as the Flat allotted to the complainants by the opposite party No. 01 in its project, the developer has not completed the construction of the unit allotted to the complainants which situates in Tower-G. This fact is not in dispute that the Tower-G of the project in question was showing in the site inspection report prepared by Sri Vinay Kumar Verma, Avar Abhiyanta and Sri Vinod Kumar, Avar Abhiyanta of RERA being incomplete and the repair work such as plaster work, finishing work, railing work, electric work and fire fighting has not been done by the opposite party No.01, the builder. The opposite party No.01 has installed only one lift in the tower whereas it has to install two lifts in the each tower. No work has been still started for installation of second lift. The site inspection report of RERA also shows that only 75 to 80% project work has been completed by the opposite party No.01 This is also not disputed that ‘Part Occupancy Certificate’ has been obtained by the opposite party No.01 from the competent authorities with regard to Tower No. G.
We have also perused the documents such as photographs of site, reports of various government agencies, submitted by the learned Counsel for the complainant alongwith affidavit.
Perusal of the report of Sri Ajai Kumar Singh, Fire Brigade Officer, Echotech-3, Greater Noida, Gautam Budh Nagar dated 04-09-2020 filed before the Chief Judicial Magistrate, District Gautam Budh
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Nagar in Complaint Case No. 12624/2020 also shows non completion of work with regard to project of opposite party No.01.
It is pertinent to mention here that the Letter No.85/Sa-85/2020 dated 15-06-2020 issued by Dr. Archana Dwivedi, Regional Officer, Uttar Pradesh Pollution Control Board, Greater Noida to the opposite party No.01 also shows that the opposite party No.01, the developer has failed to complete the work. Site Inspection Report dated 27-08-2021 of Assistant Manager (Mobile Squad) also shows non compliance of work.
Perusal of the aforesaid reports show that basic amenities are missing in the said project and lots of discrepancies were pointed out by
the various government agencies such as Fire Brigade Department, Uttar Pradesh Pollution Control Board, Site Inspection Report of RERA
which are not disputed by the learned Counsel for the opposite party, therefore, the contention of learned Counsel for the opposite party is nothing but clearly non acceptable nor is supported by any material or evidence. It is established from all these reports that the major work of the project is still to be completed.
From the perusal of the photographs enclosed alongwith the evidence in the shape of affidavit, it is clear that the flat in question was not at all in habitable condition and it is informed by the learned Counsel for the complainant that still the condition of the flat is very poor and no one can reside in it.
Once the ‘Part Occupancy Certificate’ has been issued to the opposite party No. 01 and the basic amenities are missing in the said project which are not disputed by the learned Counsel for the opposite party No.01, how can the opposite party No.01 issue the letter followed by reminder letter to the complainants to make the balance payment alongwith other charges of the flat in question and take possession of it after making the balance payment and other charges, therefore, the contention of learned Counsel for the opposite party No. 01 is nothing but clearly non acceptable nor is supported by any material or evidence.
It is submitted here that the complainant has alleged in his complaint that he has paid Rs.31,88,194/- including cash Rs.1,00,000/- for stamp fee to the opposite party no.01 but he has failed to produce any receipt of deposit of cash Rs.1,00,000/- with the opposite party. The
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argument of learned Counsel for the opposite party No.01 that the complainant has made the false allegation of deposit of Rs.1,00,000/- cash with the opposite party No.01 has got force and the complainant has failed to prove that he has paid cash Rs.1,00,000/-. We find force in the argument of learned Counsel for the opposite party No.01 that as against the estimated cost of the Flat i.e. Rs.33,39,600/- the complainant had already paid an amount of Rs.30,88,194/-.
It is further to see the highhandedness of the authority that the opposite party No.01 has allegedly issued a letter dated 29-09-2017 demanding sum of Rs.11,16,510/- under the heads of Basic, Club Membership, IFMS, Lease Rent, Prepaid Dual Electronic Meter Charges, water and sewer charges, Electricity Load, Video Intercom (With installation), Sinking Fund for 24 months, IGL Installation Charges, IGL charges, Partikar Shulk, Labour Cess, Additional Power Backup, Interest on Delayed payment and Advance Maintenance Charges Rs.34,580/-. In our opinion, the said letter dated 29-09-2017 is nothing but the method adopted by the opposite party No.02, the builder to shade their illegality and arbitrary act which is not permissible in the eyes of law.
Having heard the learned Counsel for the parties, and after going through the material and evidence available on record we find force in the argument of learned Counsel for the complainants that the opposite party No.01 has failed to complete the flat in question and the flat in question is not in habitable condition and the relief sought by the complainants in their complaint for the refund of the deposited amount alongwith interest and compensation is correct and genuine.
In view of the above it is clearly established that the opposite party No.01, the builder has not only committed illegality, arbitrariness but has harassed the complainant mentally, physically and monetarily, therefore, the complaint is liable to be allowed and the following order is being passed against the opposite party no.01.
ORDER
The instant complaint is allowed with costs. The opposite party No. 01 is directed to pay the entire amount paid by the complainants as well as sanctioned on behalf of the complainants by the opposite party No.02 and paid to the opposite party No.01. The aforesaid amount has
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to be refunded to the complainants by the opposite party No.01 within a period of 30 days from today out of which the amount which was paid by the opposite party no.02 the financier directly to the builder will be refunded by the complainants to the opposite party No.02, the financier within a period of two weeks from the date of receiving the same from the opposite party No.01, the builder. The opposite party No. 01, the builder is further directed to pay interest to the complainants at the rate of 10% per annum on the amount deposited by the complainants and 12% interest per annum to the complainants on the amount sanctioned and paid by the opposite party No.02, the financier out of which 9.45% interest will be paid by the complainants to the opposite party No.2, the financier within the same period as mentioned hereinabove with regard to the principal amount payment and disbursement and remaining 2.55% amount of interest will be deposited by the complainants with “Army Central Welfare Fund” or “Armed Forces Battle Casualties Welfare Fund” within a period of one month from the date of receipt failing which 2.55% amount which is directed to be deposited for the beneficiary of the scheme will be recovered from the complainants.
Apart from that the opposite party No. 01 will also pay penalty/compensation towards the mental agony, harassment, financial hardship to the complainants to the tune of Rs.5,00,000/- and Rs.50,000/- towards the costs of the case. The entire amount has to be paid within a period of 30 days.
Let copy of this order be made available to the parties as per rules.
The Stenographer is requested to upload this order on the website of this Commission at the earliest.
( JUSTICE ASHOK KUMAR ) ( SUSHIL KUMAR )
PRESIDENT MEMBER
Pnt.
