Haryana

StateCommission

CC/576/2018

PREM KUMAR SOFTA - Complainant(s)

Versus

MAGIC EYE DEVELOPERS PVT. LTD. - Opp.Party(s)

EKLAVYA GUPTA

29 Nov 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

  Date of Institution:12.10.2018

                Date of final hearing:22.11.2023

                                                Date of pronouncement:29.11.2023

 

Consumer Complaint No.576 of 2018

 

IN THE MATTER OF

 

Prem Kumar Softa S/o Late Shri Bansi Lal Softa, R/o Flat No.168, Pocket-B, DDA Flats, Sukhdev Vihar, Kalkaji, South Delhi-110025.

 

                                                                                      .….Complainant.

Through counsel Mr. Eklavya Gupta, Advocate

 

Versus

 

1.      Magic Eye Developers Private Limited, through its Managing Director having registered office at GF-09, Plaza M-6, District Centre, Jasola, New Delhi-110025.

2.      The Project Manager, Magic Eye Developers Private Limited, having registered office at GF-09, Plaza M-6, District Centre, Jasola, New Delhi-110025.

3.      The Authorized Signatory, Magic Eye Developers Private Limited, having registered office at GF-09, Plaza M-6, District Centre, Jasola, New Delhi-110025.

 

….Opposite parties.

 

Through counsel Mr. Kamaljeet Dahiya, Advocate

 

CORAM:   S.C. Kaushik, Member.

 

Present:-    Mr. Eklavya Gupta, counsel for the complainant.

Mr. Kamaljeet Dahiya, counsel for opposite parties.

 

O R D E R

S.C. KAUSHIK, MEMBER:

 

                    The brief facts giving rise for the disposal of the present complaint are that the complainant booked one residential-cum-commercial apartment for his personal use with the opposite parties (“OPs”) in the year, 2012 in their project under the name & style of “The Plaza at 106” situated at Sector-106, Gurgaon (Haryana) and OPs offered unit No.1008, measuring 700 sq. ft., 10^th Floor, Tower No.132 in the said project. Basic sale price of the said unit was Rs.33,25,000/-. Complainant paid an amount of Rs.22,16,861/-in total to the OPs as per their demands on different dates. Flat Buyer’s Agreement dated 29.04.2013 was also executed between the complainant and OPs after the delay of one year from depositing the payment towards the said agreement. It is alleged that as per clause-9.1 of the said agreement, possession of the apartment was to be given within three years with two grace periods of six months each from the date of execution of said agreement i.e. 29.04.2016, but OPs failed to deliver the possession within stipulated period. It is further alleged that as per clause-10.3 of the agreement dated 29.04.2013, in case OPs failed to deliver the possession of apartment within stipulated period, in that eventuality, allottee may terminate the agreement and the amount so deposited will be refunded by OPs. Complainant requested the OPs several times to hand over the possession, but they did not answer satisfactorily nor refunded the deposited amount. Thus, there was deficiency in service and unfair trade practice on the part of the OPs. The complainant prayed that OPs be directed to refund deposited amount i.e. Rs.22,16,861/- with interest @ 18% p.a. and compensation of Rs.5,00,000/- on account of agony and mental harassment as well as compensation of Rs.1,00,000/- on account of litigation expenses.

2.                Notice of the complaint was issued against the Ops, upon which they appeared and filed their joint written statement and submitted that the complainant is not maintainable as the complainant is not consumer but he is investor who applied for unit in question for earning benefits and not for the residential purpose of his own. However, it was admitted that the complainant booked the studio apartment, but the same was in commercial project of OPs and thus, complainant does not fall under the definition of consumer. It is further submitted that as per Buyer’s Agreement dated 29.04.2013, possession as to be delivered within three years with two grace period of six months each from the date of execution of agreement, so the stipulated date of possession was 28.04.2017. However, there was a delay in handing over the possession due to defaults committed by complainant in making the payments on time and stopped making payments after January, 2016. Total sale consideration of the said apartment was Rs.44,45,255/- inclusive of tax where out of this, complainant made the payment of Rs.22,16,359/- only i.e. 48% of total sale consideration despite several reminders of OPs. It is further submitted that complainant has to pay Rs.13,78,613/- (Principal of Rs.11,76,092/- and interest of Rs.2,02,521/-). Moreover, as per clause-7 of agreement, the complainant is liable to pay the consideration amount timely but the complainant has breached the terms of the said agreement. It is further submitted that another substantial reason for delay is non payment by the allottees and the complainant as well because the complainant has opted construction linked plan meaning thereby, the complainant should pay each and every amount as per the construction works but the complainant has not complied with the same. As per clause 9.1 of the agreement, the delay can happen if the allottee will not pay in time, therefore, it can be impossible for OPs to complete the process of construction without getting substantial amount from allottees. Complainant has not paid the amount as per agreement as there was almost 95% of the work is completed and the complainant has paid only 48% to the OPs. Other allegations made in the complaint were also denied. Thus, there was no deficiency in service on the part of the Ops.

3.                When the complaint was posted for recording evidence of the complainant, learned counsel for complainant has tendered into evidence affidavit of Mr. Prem Kumar Softa as Ex.CW-1 vide which he has reiterated all the averments taken in the complaint and other documents Ex.CW-2 to Ex.CW-11 and closed the evidence. On the other hand, learned counsel for OPs has tendered into evidence affidavit of Shri Jaspreet Singh, Authorized Signatory of OPs as Ex.OP-A alongwith documents Ex.OP-1 to Ex.OP-16 and closed the evidence on behalf of OPs.

4.                The arguments have been advanced by Mr. Eklavya Gupta, learned counsel for the complainant and Mr. Kamaljeet Dahiya, learned counsel for OPs. With their kind assistance entire record including documentary evidence as well as whatever evidence had been led during the proceedings of the complaint have been properly perused and examined.

5.                As per the basic averments raised in the complaint including the contentions raised by the learned counsel for the complainant, the foremost question which requires adjudication by this Commission is as to whether the present complainant is entitled to get refund of the amount which he had already deposited, alongwith interest or not? 

6.                While unfolding his arguments, it has been argued by Mr. Eklavya Gupta, learned counsel for the complainant that as far as the execution of the Apartment Buyer’s Agreement dated 29.04.2013 is concerned, the same could not be disputed. It could also not be disputed that the OPs allotted unit No.1008, measuring 700 sq. ft., 10^th Floor, Tower No.132 to the complainant and the complainant had paid Rs.22,16,861/- to the OPs in total. It is also not disputed that the basic sale consideration of the said apartment was Rs.33,25,000/- and total sale consideration was Rs.44,45,255/-. As per clause-9.1 of the Apartment Buyer’s Agreement dated 29.04.2013, OPs had to deliver the possession of the apartment in question to the complainant within a period of 36 months with two grace periods of 6 months each from the date of execution of the agreement and as per clause-10.3 of the agreement, in case the OPs failed to deliver the possession within stipulated period, in that eventuality, OPs are liable to refund the deposited amount alongwith interest on account of delay in handing over the possession. Since, it is established as well admitted that the OPs failed to deliver the possession of apartment within stipulated period, in these circumstances, the complainant had no other option, but to seek refund of the amount alongwith interest, which he had already paid, as they do not think that OPs will be able to put him into possession of the apartment as he wish to get.

7.                On the other hand, Mr. Kamaljeet Dahiya, learned counsel for OPs has argued that the complainant booked a commercial unit (studio apartment) with the OPs in a commercial project and thus, the complainant is not consumer but he is an investor who applied for unit in question for earning benefits and not for the residential purpose of his own, so the present complaint is not maintainable. He further argued that as per Buyer’s Agreement dated 29.04.2013, possession has to be delivered within three years with two grace period of six months each from the date of execution of agreement, so the stipulated date of possession was 28.04.2017. He further argued that delay in handing over the possession was occurred due to defaults committed by complainant in making the payments on time and stopped making payments after January, 2016. Total sale consideration of the said apartment was Rs.44,45,255/- inclusive of tax where out of this, complainant made the payment of Rs.22,16,359/- only i.e. 48% of total sale consideration despite several reminders of OPs and complainant has to pay Rs.13,78,613/- (Principal of Rs.11,76,092/- and interest of Rs.2,02,521/-). He further argued that as per clause-7 of agreement, the complainant is liable to pay the consideration amount timely but the complainant has breached the terms of the said agreement and another substantial reason for delay is non-payment by the allottees and the complainant as well because the complainant has opted construction linked plan meaning thereby, the complainant should pay each and every amount as per the construction works but the complainant has not complied with the same. As per clause 9.1 of the agreement, the delay can be happened if the allottee will not pay in time, therefore, it can be impossible for OPs to complete the process of construction without getting substantial amount from allottees. He further argued that the complainant has not paid the amount as per agreement as there was almost 95% of the work is completed and the complainant has paid only 48% to the OPs. Finally, he argued that there is no deficiency in service on the part of OPs and prayed for dismissal of the present complaint.

8.                In view of the above submission and after careful perusal of the entire record, it stands proved that upon floating a project by the OPs-builders under the name & style of “The Plaza at 106” situated at Sector-106, Gurgaon (Haryana), complainant purchased a residential-cum-commercial unit bearing No.1008, measuring 700 sq. ft., 10^th Floor, Tower No.132 in the said project, which was offered by the OPs. Basic sale price of the said unit was Rs.33,25,000/- and total sale consideration was Rs. Rs.44,45,255/- inclusive of tax, out which complainant has already paid an amount of Rs.22,16,861/-in total to the OPs as per their demands on different dates. Apartment Buyer’s Agreement which was executed on dated 29.04.2013 also stands proved, but to the utter surprise of this Commission it is quite baffling to note surprising as to how inspite of the fact that complainant had deposited a huge amount i.e. more than 90% of total cost of the apartment, but possession was not offered by the OPs in stipulated period. Though, learned counsel for OPs has argued at the time of arguments that it is a commercial project and complainant does not fall under the definition of consumer and still OPs are ready to hand over the possession, but complainant himself refused to take over the same. In this regard it is pertinent to mention here that as per clause-10.3 of the apartment buyer’s agreement dated 29.03.2013, which was executed by OPs, it is specifically mentioned taht in case OPs failed to deliver the possession of apartment within stipulated period, in that eventuality, allottee may terminate the agreement and the amount so deposited will be refunded by OPs. As such, there was a clear breach of terms and conditions of the Apartment Buyer’s Agreement on part of the OPs. It is the normal trend of the developers that a developer would collect their hard-earned money from the individuals and would invest these funds in other projects and as a result thereof the project for which the home-buyers have deposited their hard-earned money is not completed.  As such, this Commission is of the considered opinion that there is deficiency in services on the part of OPs and thus, the complainant is well within his legal rights to receive refund of the amount of Rs.22,16,861/-  (Rs. Twenty two lacs sixteen thousand eight hundred and sixty one only) which he had already deposited with the OPs. Even otherwise also, there is a strong element of physical and mental agony caused to the complainants for his having invested a huge amount and due to not having been given possession of the apartment as per Apartment Buyer’s Agreement, he had to knock at the door of this Commission even for seeking refund of the amount. In such like cases, the Commission had to deal with the developers with severe hands who are misusing the funds of the individuals. As such, the question is answered in the affirmative.

9.                As regards the rate of interest to be awarded, it may be relevant to keep the following factors into consideration. Keeping in view the recent periodic revision of repo rate by Monetary Policy Committee of Reserve Bank of India and consequent upward revision of Marginal Cost of Lending Rate (MCLR) by the Nationalized Banks, there has been an increase in lending rate by the Nationalized banks. Accordingly, it would, in considered view of this Commission, be just fair and reasonable to award 9% as rate of interest to the complainant.

10.              In the light of the above observation and discussion, there are sufficient grounds to accept the complaint and while accepting the complaint, the OP is directed to refund the amount of Rs.22,16,861/-  (Rs. Twenty two lacs sixteen thousand eight hundred and sixty one only) alongwith interest @ 9% per annum to the complainants from  the date of their respective deposits till realization.  In case, there is a breach in making payment within the stipulated period of 45 days, in that eventuality, the complainants would be entitled to get the interest @ 12% per annum, for the defaulting period. The complainant is also entitled to an amount of Rs.50,000/- (Rs. Fifty Thousand Only) on account of compensation for mental and physical agony.  In addition, the complainants are also entitled to an amount of Rs.10,000/- (Rs. Ten thousand only) as litigation charges. It is also made clear that in case of non-compliance of the aforesaid order by the OPs, the provisions enshrined under section 72 of the C.P. Act would also be attractable.

11.              Application(s) pending, if any, stand disposed of in terms of the aforesaid order.

12.              A copy of this order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 2019. This order be uploaded forthwith on the website of the Commission for perusal of the parties.

13.              File be consigned to record room alongwith a copy of this order.

 

 

Pronounced on 29^th November, 2023

 

                                                                                                            S.C Kaushik,

Member        

Addl. Bench-III