Delhi

North

CC/88/2021

YOGESH KUMAR & ANR - Complainant(s)

Versus

M.R. HOMES HERITAGE TOWER - Opp.Party(s)

02 Jan 2024

ORDER

District Consumer Disputes Redressal Commission-I (North District)

[Govt. of NCT of Delhi]

Ground Floor, Court Annexe -2 Building, Tis Hazari Court Complex, Delhi- 110054

Consumer Complaint No. 88/2021

In the matter of

1)Sh.Yogesh Kumar

S/o Randhir Singh,

Chamber No.307

Western Wing, Tis Hazari

Delhi-110054                                                                                        ...Complainant No.-1

2)Smt. Harbiri Devi

W/o Sh.Yogesh Kumar

R/o E-25, Street No.5, Sadatpur Extention

Karawal Nagar Road, Delhi-110090                                                ...Complainant No.-2

Versus

1)M.R.Homes Heritage Tower

  (Through its partners)

   KJ-12, Kavi Nagar

   Ghaziabad, OP-120100                                                                            . ..Opposite Party-1

2)Sh.Pushpendra Rawat (Partner)

M.R.Homes Heritage Tower

S/o Sh.Mange Ram

R/o R-02/81, Raj Nagar, Ghaziabad,UP-201002                                ...Opposite Party-2

3)Sh. Puneet Tyagi (Partner)

M.R.Homes Heritage Tower

S/oSh.Raj Pal Tyagi

R/o KI-03, Kavi Nagar, Ghaziabad, UP-201001                                  …Opposite Party-3                                                

ORDER
02/01/2024

Ms.Harpreet Kaur Charya, Member

Jurisdiction of this Commission has been invoked by Sh. Yogesh Kumar, complainant No.1, and Smt. Harbiri Devi, complainant No.2 , against, M.R.Homes Heritage Tower (through its partner) as OP-1, Sh. Pushpendra Rawat (Partner) as OP-2 and Sh. Puneet Tyagi (Partner) as OP-3 with the allegations of restrictive trade practices.

1. Briefly stated the facts of the present complaint are that, the complainant No.1, an advocate by profession and complainant No.2, spouse of the complainant No.1, on 08/02/2012 (sic) booked a 03 BHK residential flat No.305 in M.R.Homes, Heritage Tower at Rajnagar Extension, Ghaziabad, Uttar Pradesh having 1425 sqft. super area.  The total price of the said unit was Rs.33,79,388/- [ Base price of Rs.33,36,638/- plus Interest Free Maintenance Security (IFMS)of Rs.42,750/-] under Flexi Payment Schedule. The complainant paid Rs.5,00,000/- as booking amount equivalent  to 15% of the base price in lump sum and thereafter have been paying the amount time and again.
2. It has been stated in the complaint that they were assured that the project will be completed and possession shall be handed over within 35 months from the date of booking, but OP in the allotment letter/agreement entered arbitrary terms and conditions and added “within 35 month from this agreement”.  Despite the fact that, the possession of the flat was assured to be handed over within 35 months of booking but the progress of the construction was very slow.  The complainant received a demand letter dated 01/06/2016, wherein, the complainant was requested to remit an outstanding due, however, no demand was raised for 30% of the amount on casting of 3^rd  roof slab.
3. Again, on 12/10/2015, upon oral request of the OP, the complainant paid Rs.10,00,000/- in advance even before raising of the demand for 30% amount on the casting of 3^rd roof slab.  On 04/06/2016, the complainant further paid Rs.45,889/- and cleared all the amount in advance which was to be paid on the casting of the 3^rd roof slab and “NIL” outstanding amount letter dated 09/07/2016 was issued by OP.
4. It has been alleged by the complainant that the possession was to be handed over on 13/06/2017, however OP has failed to complete the construction despite receiving Rs.29,16,753/- (about 78.4% of the base price of the flat).  On 15/07/2018, a meeting was held with some of the buyers and OP, where the OP assured that the possession of the flat will be handed over till December 2018. The complainant was informed that as they have already paid more than 75% of the amount, therefore, demand letter was not raised and again they were assured that the possession would be handed over in December, 2019 or latest by June 2020.
5. On 19/06/2020, the complainant along with their son namely, Mr. Nitin Kumar visited the project site but they found that lots of work was still pending.  The complainants have submitted that they were shocked to receive a demand letter dated 01/06/2020, on 16/06/2020 wherein a total demand of Rs.7,03,533/- (Rs.5,34,173/- on casting of 6^th and 12^th roof slab and Rs.3,47,805/- as interest and Rs.41,737/- as service tax on interest) were demanded by OP  illegally along with interest @18% .
6. The complainant has further submitted that the demand raised by the OP vide letter dated 01/06/2020 is manipulated.  The entries for the demand raised by them for casting 6^th roof slab in Jan 2016 and 12^th roof slab in April 2019 is merely for levying interest upon the buyers with malafide and dishonest intention. The complainants have averred that after the issuance of ‘NIL’ outstanding amount letter dated 09/07/2016 there has been no written communication on behalf of OP till 01/06/2020.  Despite several personal visits, meetings and representation dated 21/06/2020, the OP did not withdraw the demand letter dated 01/06/2020.  Reminders dated 31/08/2020 and 13/10/2020 were also issued through emails but all in vain.   
7. In the month of March 2021, the complainant along with their son Mr. Nitin Kumar visited the project site and found that the following work was incomplete/pending as enumerated under :

Pending work inside the Flat

• Flooring, Wall Tiles, Stone Work etc are stil pending
• Electrical (Wiring and Fixing Switches/Sockets/MCB) Works etc are still pending.
• Plumbing (China Ware/Fittings) works etc are still pending
• Internal Paint work is not started yet
• Internal doors & Windows are not fixed yet.

Pending work outside the flat (s) In common area:

• Flooring, Stone Work etc.in Circulation area are still pending.
• Mandatory services such as plumbing, Fire Fighting, Lifts, Electric work are still pending
• Flooring and Railing at the Stairs are still pending.
• Roof Water Proofing and Construction of Overhead Water Tank(s) are still pending
• Entrance, Boundary wall ,parapet wall, and Basement Ramp are still pending
• Project Electrification by UPPCL is not completed yet.
• External paint work and development of common area/circulation area is still incomplete

8. Legal notice dated 23/03/2021 was served upon OP, through email and speed post calling them to withdraw the demand letter dated 01/06/2020, which was neither replied nor complied with.  It has been stated by the complainant that they had booked the unit for themselves and their family members but despite a lapse of 9 years and making a payment of Rs.29,16,753/- (about 78.4 % of the base price ) OP has not only failed to handover the possession but also caused mental and physical harassment           

       9. Complainant have also submitted that OP, incompliance of the provisions u/s 4(1) of RERA-2016, was registered the project as under :

11. The complainants have annexed the Allotment letter as Annexure-I, Demand letter dated 01/06/2020 as Annexure-II,  Notice dated 23/03/2021 issued by complainant along with original postal receipts as well as printout of the emails and  as Annexure-III (Colly), an email regarding the withdrawal of the demand letter dated 01/06/2020 as Annexure-IV(colly), demand letter dated 09/07/2016 as Annexure-V, demand letter dated 01/06/2015 as Annexure -VI , project details as Annexure-VII(colly), the Photo ID of the Complainant No.1 and Complainant No.2 as  Annexure-VIII (colly).
12. Notice of the present complaint was issued to OPs.  Thereafter the Written Statement was filed on behalf of OPs. They have taken the objection that the present complaint is devoid of merit and is filed with the motive to extort money and harass OPs.  They have stated that the complainants are seeking relief of interest/damages and compensation which is not maintainable under the Consumer Protection Act; there was no deficiency in service on their part and OP was not involved in restricted trade practice.
13. OP has taken another objection stating that the complainants are not a consumer as they have booked two units bearing No.305 and 306 for speculation in real estate market and not for residential purposes.  It has been submitted that the complainants are defaulter as they have violated the agreed terms and conditions of agreement and had failed to make payment of instalments in time and as per accounts, Rs.7,03,533/- was outstanding and payable.  A waiver of interest vide communication dated 09/07/2016 was given to the complainant, which is being interpreted as no amount payable by the complainant.  An objection pertaining to limitation has also been raised by OP. 
14. It has been submitted that the complainant No.1, an advocate and complainant No. 2 had signed the agreement after being satisfied with the terms and conditions of allotment and at this stage he cannot allege that the terms and conditions of the allotment are arbitrary.  It has been submitted that on the west side of the project there was a 0proposed storm water drain to be constructed by the Ghaziabad Development Authority (GDA).  The infrastructure work of the said drain was completed in the first quarter of 2015 but it was not connected to the main drain outlet till 2017.  Due to which during the monsoon period (2015 to 2017) the basement of the project was flooded and OP had to spent substantial amount, time and resources in dewatering thus causing loss substantial and crucial construction time.  Further, the ban on all construction activities in the month of November and December 2015 onwards by Hon’ble NGT and due to pandemic COVID 19 the construction of the project was badly affected. 
15. OP has stated that a letter dated 09/07/2016 was issued after mutual discussion with the complainant on account of waiver of interest in order to show their bonafide gesture which cannot be termed as NIL outstanding and complainant are still liable to pay an outstanding amount in terms of communication dated 01/06/2020.  Since the construction of the project is at its verge of completion, therefore, the demand letters were issued to the customers in terms of allotment letter for payment.   Thus, the demand letter dated 01/06/2020 cannot be termed as illegal.  The complainants were informed through various modes of communication and follow up for the payment of dues; however the complainant failed to pay the same.   Rest of the content of the complaint have been denied with the prayer for rejection of the present complaint.
16. Complainants have filed rejoinder to the written statement filed on behalf of the OP denying the contents of written statement and reiterating those of the complaint.
17. Complainants have filed evidence by way of affidavit. Sh. Yogesh Kumar has got his evidence affidavit marked as CW-1. He has repeated the contents of the complaint and has got exhibited the documents annexed with it. The Allotment Letter/ Agreement dated 14.07.2014 has been exhibited as  Ex-CW-1/01; Demand letter dated 01.06.2015 issued by OP wherein no Demand for 30 % amount on casting3rd slab was raised and the same is exhibited Ex-CW-1/02; Letter dated 09.07.2016 issued OP showing NIL outstanding amount as Ex-CW-1/03; Demand Letter/ Statement 01.06.2020 as Ex-CW-1/04; Demand  Letter dated 01.06.2020 received by Complainant on 16.06.2020 wherein a total demand of Rs.7,03,533/- was raised by OP as Ex-CW-1/05.
18. The Complainant has got exhibited the representation dated 21.06.2020 and subsequent reminders dated 31.08.2020 and 13.10.2020 as Ex-CW-1/06; The photographs of the Construction Site dated 21.04.2022 and True Copy of the newspaper clip of Amar Ujala dated 21.04.2022 are exhibited as Ex-CW-1/07 and Ex-CW-1/08 respectively; Legal notice issued to OP on 23.03.2021 through email has been exhibited as Ex-CW-1/09; The project details are exhibited as Ex-CW-1/10 (colly); The Complainant has also got exhibited the I-card issued by Bar Council of Delhi and Voter Id card of Complainant No.2 exhibited as Ex-CW-1/11.
19. OP has got examined Sh. Rakesh Sharma, Authorised Representative on their behalf. He has also reiterated the contents of the written statement.
20. We have heard the arguments of the Ld. Advocate for the Complainant and Ld. Advocate for the OP and have perused the material on record. We have also gone through the written arguments filed on behalf of the parties. It is not in dispute that the complainants have paid Rs.29,16,753/-i.e. 87.4% of the total cost of the flat which is Rs.33,79,388/-. 
21. The allotment latter dated 14/07/2014, as per which the terms and conditions shall prevail overall other terms and conditions given in the brochures, advertisement, price list and any other sale documents.  As per the said documents the possession of the flat was to be given within 35 months from the date of agreement of the flat.  Thus, as per the agreement, the possession should have been handed over to the complainants on or before 14/07/2017. 
22. Complainant has also submitted that OP, in compliance of the provisions u/s 4(1) of RERA-2016, has registered the project under:-

23.  The complainant has assailed the demand letter dated 01/06/2020, issued by OP, wherein the OP has demanded Rs.7,03,533/- from the complainant. OP has charged interest on account of default on part of payment of instalment. The allotment letter reflects that as per the payment plan opted by the complainant; instalment amounting to 10% each of the total cost was to be paid on the casting of the 6^th roof slab and 12^th roof slab. The instalment became due on 20/01/ 2016 on casting of 6^th floor and next instalment became due on 30 April 2019, upon casting of 12^th floor.

24. It is seen that the complainant has got exhibited the documents in very callous manner, he has got exhibited letter dated 01/06/2020 as Ex.CW1/04 and also as Ex.CW1/05.  The complainant has stated that as OP has issued a letter dated 09/07/2016, stating the dues to be “NIL”, therefore, the subsequent demand vide letter dated 01/06/2020 (Ex.CW1/05) is arbitrary.  OP on the other hand has stated that the complainant has misinterpreted the letter dated 09/07/2016 (Ex.CW1/04). 
25. If we look at the letter dated 09/07/2016, it bears the outstanding dues as ‘NIL’ till the casting of the 3^rd floor slab only.  . 
26. As per Demand letter dated 01/06/2020, the instalment became due on 20/01/2016 on casting of 6^th floor slab and 30/04/2019 upon casting of 12^th floor slab.  It is the case of the complainant that no demand notice was issued by OP after 01/06/2015, and the subsequent payment was made by the complainant to OP without OP raising demand. A letter dated 09/07/2016, reflecting ‘NIL’ dues was issued. On the other hand, OP was placed nothing on record to show that demand letters were raised/issued on casting of 6th and 12^th floor. Once, the demand was not raised by OP, then it can be held that complainant did not pay the instalment when demanded, thus, OP cannot charge interest stating it to be late payment. Thus, levy of interest is illegal and arbitrary.
27. As per clause D, which deals with Possession reproduced hereunder:-

7.  that the possession period agreed upon is only indicative and the company may offer possession before that date.  In case of early possession, the balance instalments shall become due immediately.  The Allottee(s) has to take possession of the unit with 45 days of the written offer of the possession from the Company failing which the Allottee(s) shall be liable to pay watch and ward charges @0.10% of the total cost of the flat per month.  If the Allottee(s) fails to take over the possession within 03 months (after the expiry of 45 days as mentioned above) watch and ward charges @0.20 % of the total cost of the flat will be recoverable .  Further maintenance charges as covered by 11 above shall become payable after the expiry of the said period of 45 days.  In case of delay is possession of the unit within time (after expiry of buffer period also that is 6 months) to the Allottee(s) subject to force majeure and other circumstance, the Company shall pay to the Alottee(s) compensation @ Rs. 5/-  per Sq. ft. of the super area per month for the period of delay.  

28. Thus, the OP has failed to handover the possession to the complainant, even after the extension granted by RERA.  This definitely amounts to deficiency in services and charging of interest without raising any demand letter to the complainant is unfair trade practice.   
29. We observe that OP has indulged in deficiency in services. The considerable delay in handing over the possession to the complainant has caused mental agony and harassment for which complainant is entitled to compensation.

Therefore, in the facts and circumstance of the present case, we direct OP to:-

1. Withdraw the demand of interest as raised in letter date 01/06/2020.
2. We also direct OP to pay interest on Rs.29,16,753/- amount @ 9% p.a. from the alleged date of handing over the possession to the complainant as per the proposed date of completion with UPRERA i.e. 11/03/2019 till handing over of the possession.
3. OP is directed to pay compensation @ Rs.5/- per Sq. Ft. of the super area per month for the period of delay from 11/03/2019 till handing over of the possession.
4. Handover the possession of the flat within a period of 6 months from the date of receipt of this order after completing the work as per specification Annexure-1 of Allotment letter.  
5. We also award compensation of Rs.2,50,000/- on account of mental agony  and  harassment.

The order be complied within stipulated time as directed in clause (d).  In case of non-compliance, OP shall be liable to pay an interest @12% p.a. instead of 9% p.a. as awarded  in clause (b) from the date of order till realisation.

Office is directed to supply the copy of this order to the parties as per rules.  Order be also uploaded on the website.  Thereafter, file be consigned to the record room.