Haryana

Karnal

CC/442/2020

Sham Lal - Complainant(s)

Versus

M/s Aegis Value Home Limited - Opp.Party(s)

Balraj Pal

27 Jun 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                        Complaint No. 442 of 2020

                                                        Date of instt.19.10.2020

                                                        Date of Decision:27.06.2024

 

Sham Lal aged about 54 years son of Shri Amar Singh, resident of village Bir Raithkhana Tehsil Indri, District Karnal.

 

                                               …….Complainant.

                                              Versus

 

1. M/s Aegis Value Home Limited, plot no.3, 33 Avenue, Sector-33, near Radha Swami Satsang Bhawan G.T. Road, Karnal through its Director Divey Sinddhu Dhamija.

 

2. Divey Sindhu Dhimija son of Inderjit Dhamija Director of M/s Aegis Value Home Ltd. resident of house no.1008, Sector-13, Urban Estate, Karnal.

…..Opposite Parties.

 

Complaint under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President.      

      Sh. Vineet Kaushik…….Member

      Dr.  Suman Singh…..Member

 

 Argued by: Shri Balraj Pal, counsel for the complainant.

                    Shri Pawan Sharma, counsel for the OPs.

 

                     (Jaswant Singh, President)

ORDER:   

                

                The complainant has filed the present complaint under Section 35 of the Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that complainant booked a flat No.401 located on IVth floor in Tower No.A-2 in the project “Smart Homes, Karnal” in the abovesaid site i.e. Aegis Value Homes Ltd. Karnal and for that the complainant deposited an amount of Rs.4,12,820/- with the OPs. At the time of booking of the said flat, OPs assured the complainant that project will be completed within a period of one year and the possession of the flat would be delivered within a period of one year. Now more than five years have been passed, OPs neither singed any kind of Buyer Agreement with the complainant nor started their project at the site. The complainant visited the office of OPs for signing the agreement and requested for starting their project so that the flat can be delivered to complainant within the stipulated period but OPs have been postponing the matter on one pretext or the other. Since OPs have failed to fulfill their promise and commitment of delivery of possession of the flat. Hence, as per HRERA Act, the complainant is entitled for refund of the aforesaid amount alongwith upto date interest. Complainant visited the office of OPs several times and requested to refund their deposited amount of Rs.4,12,830/- with interest @ 18% per annum but OPs always postponed the matter on one pretext or the other. In this way there is deficiency in service and unfair trade practice on the part of the OPs. Hence this complaint.

2.             On notice, OPs appeared and filed its written version raising preliminary objections with regard to maintainability; cause of action; locus standi; concealment of true and material facts; the present complaint is pre-mature one because the target date of delivering the possession to the allottees is October, 2021 plus six months of Covid-19 as per directions issued by Haryana Real Estate Regulatory, Panchkula, from the date of registration no.265 dated 09.10.2017 and complainants do not come under the definition of consumer as the complainants should have file the complaint before the Haryana Real Estate Regulatory Authority (HRERA) Sector-6, Panchkula as specific Board has been constituted by the Government to decide the disputes with respect to the societies, real estate etc. On merits, it is pleaded that complainant booked a flat in the project “Smart Homes, Karnal” and deposited an amount of Rs.4,12,820/-. OPs never assured the complainant that the project will be completed in one year, it was the terms and conditions of the application that that the project will take four years +six months of any pandemic. After completing necessary formalities like getting of CLU, Registration Certificate, License. The OPs got licence no.2 of 2016 regarding the project and the registration certificate no.265 dated 09.10.2017 from the competent authority and started the construction work which will be completed on target date i.e. within four years from the date of registration plus six months of covid-19. Permission to this effect was granted by Haryana Real Estate Regulatory Authority, Panckula dated 26.05.2020.  It is further pleaded that the complainant applied in other project namely “Address by Aegis” but lateron he was requested to change his unit no.Q401 in other project of the OPs. Duly attested affidavit to this effect was also given by the complainant on 08.06.2018 to the OPs. 70% of the construction work of Smart Home Project has been completed. The work will be completed till target date i.e. March, 2022. The OP is bound to deliver the possession to the complainant on the abovesaid date. There is no deficiency in service and unfair trade practice on the part of the OPs.  The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

3.             Parties then led their respective evidence.

4.             Learned counsel for the complainant has tendered into evidence affidavit of complainant Ex.CW1/A, copy of application no.7837 Ex.C1, copy of application form for allotment of residential apartment Ex.C2, copy of demand letter dated 17.10.2016 Ex.C3, copy of receipt of payment dated 27.09.2018 Ex.C4, copy of demand letter dated 05.09.2019 Ex.C5 and closed the evidence on 19.12.2022 by suffering separate statement.

5.             On the other hand, learned counsel for the OPs has tendered into evidence affidavit of Sandeep Sharma Ex.OP1/A, copy of application from Ex.OP1, copy of licence Ex.OP2, Resolution dated 09.06.2022 Ex.OP3, copy of HRERA Project Registration Ex.OP4, copy of letter dated 15.07.2020 Ex.OP5, copies of payment receipts Ex.OP6 to Ex.OP10 and closed the evidence on 22.08.2023 by suffering separate statement.

6.             We have heard the learned counsel of the parties and perused the case file carefully and have also gone through the evidence led by the parties.

7.             Learned counsel for complainants, while reiterating the contents of the complaint, has vehemently argued that complainant booked an apartment in the project of the OPs and paid a sum of Rs.412830/- till 28.09.2017. The OPs assured that the project will be completed within one year but till date neither the OPs have completed the construction work nor offered the possession of the flat. Complainant approached the OPs several times and requested either to complete the construction work or to refund the amount deposited by him with interest but OPs did not do so. The OPs are enjoying the hard earned money of the complainant for many years and lastly prayed for allowing the complaint. Learned counsel of complainant has placed reliance on the case law titled as M/s Pyaridevi Chabiraj Steel Pvt. Ltd. Versus National Insurance Company Ltd. and 3 Ors. in Consumer Case no.833 of 2020 decided on 28.08.2020; Abhishek Khanna and others in Civil appeal no.5785 of 2019, date of decision 11.01.2021; Mr.Mridula Rajbanshi and another Vs. Umang Realtech (P) Ltd. 2021 SCej 1087 (NCDRC); Jose Mariano Corderio Versus M/s Kalash Real Estate Developers in First appeal no.12 of 2018, date of decision 01.02.2021; Deepak Goyal and another Versus M/s North Star Apartments Pvt. Ltd. and others, in consumer case no.871 of 2017, date of decision 28.09.2021 and Sunny Ahuja Versus Raheja Developers Ltd. in consumer case no.180 of 2020, date of decision 03.01.2022.

8.             Per contra, learned counsel for OPs, while reiterating the contents of written version, has vehemently argued that the present complaint is premature. This Commission has no jurisdiction to try and decide the present complaint as complainant do not come under the definition of consumer as the complainant should have file the complaint before the HRERA as specific Board has been constituted by the Government to decide the disputes with respect to the societies, real estate etc.  After obtaining the registration certificate on 09.10.2017 regarding the project, the OPs started the construction work and completed the construction work of the flats and OPs are ready to deliver the actual physical possession of the flat to the complainant on receiving the balance amount with regard to the flat in question and lastly prayed for dismissal of the complaint.

9.             We have duly considered the rival contentions of the parties.

10.           Admittedly, complainant booked a flat in the project of the OPs. It is also admitted that complainant deposited an amount of Rs.4,12,820/- with the OPs.

11.             The OPs have alleged that complainant do not fall under the definition of consumer, as the complainants should have filed the complaint before the HRERA as specific Board has been constituted by the Government to decide the disputes with respect to the societies, real estate etc. It is a settled proposition of law, that complaint under Consumer Protection Act, being an additional remedy has to go on. In this regard, we place reliance on the case titled as Imperial Structures Limited Vs. Surinder Anil Patni and Another in Civil Appeal no.3581-3590 of 2020 decided on 02.11.2020 wherein Hon’ble Supreme Court held that “the Homebuyers are ‘consumer’ as per the Consumer Protection Act and the availability of an alternative remedy under RERA would not bar them from initiating a complaint under Consumer Protection Act. Hon’ble Supreme Court further held that “the homebuyers are at liberty to approach Consumer Forum for claiming compensation in cases where the payment has been made but the developer is either delaying or denying the possession of the flats. The homebuyers can approach the Consumer Forum once the promised date of delivery of possession has expired as per the agreement between the homebuyers and developers”.

12.           Further, similar view was taken by the Hon’ble Supreme Court in latest judgment case titled as Experion Developers Pvt. Ltd. Versus Sushma Ashok Shiroor in civil appeal no.6044,7149 of 2019, decided on 07.04.2022 wherein Hon’ble Supreme Court held that the “Consumer Protection Act and the RERA Act neither exclude nor contradict each other. Infact, this Court has held that they are concurrent remedies, operating independently and without primary”.

13.           Hence, keeping in view the law laid down in the above judgment and facts and circumstances of the case, the present complaint is maintainable before this Commission. Hence, the plea taken by the OPs has no force.

14.           The complainant has alleged that the at the time of booking of the flat, OPs assured the complainant that project will be completed within a period of one year and the possession of the flat would be delivered within a period of one year. On the other hand, the OPs have alleged that OPs never assured the complainant that the project will be completed in one year and as per the terms and conditions of the application the project will take four years + six months of any pandemic. For the sake of arguments, if it is presumed that the project will be completed in four years from the date of application and in its written version the OPs has specifically mentioned that the construction work will be completed till target date i.e. March, 2022 but now it is June, 2024 but till today the OPs have not delivered the possession of the flat in question to the complainant. Meaning thereby that the project has not been completed yet and the OPs have failed to abide by its own terms and conditions.

15.           Shri Sandeep Sharma, Sales Manger, of Aegis Value in his affidavit has stated that the construction work has been completed and OPs are ready to deliver the actual possession of the flat after receiving the balance amount from the complainant. Except the said oral evidence, the OPs have not placed on file any documentary evidence from which it can be ascertained that the construction work has been completed at the site and the OPs are in a position to deliver the actual physical possession of the flat to the complainant. The OPs have also not examined any other allottees of the locality, to whom they have delivered the actual physical possession of the site in question. Hence, it is proved on record that OPs have not completed the construction work at the site within stipulated period. Complainant cannot be made to wait indefinitely for the delivery of the possession. In this regard we are relying upon the following authorities:-

16.           In Abhishek Khanna’s case (supra) the Hon’ble Supreme Court held that delay in delivery of possession of apartment-Refund-Factum of delay in completing construction and making offer of possession is undisputed fact in this case-Court directed developer appellant to refund entire amount deposited by respondent buyers as categorized in two categories by Court. Further, in Mridula Rajbanshi’case (supra) the Hon’ble National Commission held that Builder-Allotment of flat-Complainants cannot be made to wait indefinitely for the delivery of possession and the act of the opposite party in relying on Force Majeure clause while retaining the amounts deposited by the complainants, is not only an act of Deficiency in Service but also of Unfair Trade Practice-Direct the Builder Co. to refund the entire principal amount received alongwith compensation in the form of simple interest @ 9% per annum from the date of deposit till the actual date of payment together with costs of Rs.50,000/- within a period of four weeks from today, failing which the amount shall carry interest @ 12% per annum till its realization. Further, in Jose Mariano Cordeiro’s case (supra) the Hon’ble National Commission held that Possession delayed-Housing Residential flat-opposite party, failed to deliver the possession of the flat within the stipulated period-Deficiency in service on the part of the OP-Since deficiency in service was established on the part of the Respondent/opposite party-sought interest and compensation-Scope-Held-If builder is found deficient in service is entitled to pay compensation during period of delay period-complainant entitled for compensation for delayed handing over of possession.  Further, in Deepak Goyal’s case (supra) the Hon’ble National Commission held that Delay in possession of flat-Unfair Trade Practice-Complaint before National Commission-under clause-8 (a) of Flat Buyer’s Agreement promised period for offer of possession was 36 months with grace period of 90 days from the date of execution of the FBA, subject to exception as given under clause 8 (b), 38, delay in approval of sanctioned plan and issue of Occupation Certificate-promised period for offer of possession expired in November, 2015-Bulding not taken any plea and offer of possession was delayed either for delay in sanction of layout plan or in issue of Occupancy Certificate-Possession notice was issued on 27.11.2018, with delay of three years-Held, allottee cannot be made to wait for indefinite period for possession complaint allowed with cost of Rs.one lakh-Direction to builder to refund amount Rs.66,58,319/- alongwith interest @ 9% per annum”.

17.           Keeping in view the ratio of the law laid down in the abovesaid judgments, facts and circumstances of the complaint, we are of the considered view that act of the OPs by not completing the project within stipulated period amounts to deficiency in service and unfair trade practice. Thus, the complainant is entitled for refund of the deposited amount alongwith interest, compensation on account of mental agony and harassment and litigation expenses, etc.

18.           Thus, as a sequel to abovesaid discussion, we allow the present complaint and direct the OPs to pay Rs.4,12,820/- (Rs. four lakhs twelve thousand eight hundred and twenty only) with interest @ 9% per annum from the date of deposit till its realization to the complainant. We further direct the OPs to pay Rs.25,000/- to the complainant on account of mental agony and harassment and Rs.11,000/- towards the litigation expenses. This order shall be complied with within 45 days from the receipt of copy of this order. It is made clear if the abovesaid amount is not paid within stipulated period then this amount will carry interest @ 12% per annum.  The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

 

Announced

Dated:27.06.2024                                     

                                                                President,

                                                   District Consumer Disputes

                                                   Redressal Commission, Karnal.

       

                (Vineet Kaushik)           (Dr. Suman Singh)

                      Member                       Member