Haryana

Karnal

CC/518/2021

Savitri Devi - Complainant(s)

Versus

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

V.K. Kapoor

10 Apr 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                        Complaint No. 518 of 2021

                                                        Date of instt.24.09.2021

                                                        Date of Decision:10.04.2024

 

Savitri Devi wife of Shri Kuldeep Singh, resident of house no.186, Gali no.8, Jawahar Nagar, Hisar, District Hisar, Haryana.

 

                                                                        …….Complainant.

                                              Versus

 

M/s Aegis Value Homes Limited SCO 243, 1^st floor, sector-12, City Center, Karnal, District Karnal through its authorized signatory Mr. Sandeep Sharma

 

                                                                 …..Opposite Party.

 

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 V.K. Kapoor, counsel for the complainants.

                    Shri Vishal Mandhan, counsel for the OP.

 

                     (Jaswant Singh, President)

ORDER:   

                

                The complainants has filed the present complaint under Section 35 of the Consumer Protection Act, 2019 against the opposite party (hereinafter referred to as ‘OP’) on the averments that complainant is the purchaser of residential apartment bearing no.501, Carpet Area 516.90 sq. ft. Tower no.A-1, 5^th floor under  the project name Smart Home Karnal, Haryana. The OP launched a residential apartments alongwith the Haryana Government with a project name Smart Homes Karnal P-2 to sell the residential apartments alongwith other basic necessities and amenities. The complainant impressed by the claims assurance and advertisement of the OP. The OP invited through invitation letter to the complainant to participate in the lucky draw to be held on 04.10.2017 at 11 a.m. in main auditorium NDRI Karnal alongwith her application no.1140. The son of complainant also applied in the same project and received the invitation vide application bearing no.1044 and participated with the complainant. The complainant alongwith her son, namely Arun Kumar declared to be lucky drawer by the OP as per the receipt issued on 04.10.2017. The complainant  deposited the booking amount to the tune of Rs.95,227/-, vide receipt no.1926 dated 05.09.2017. Similarly, the son of complainant namely Arun Kumar also deposited the booking amount of Rs.95227/- vide receipt dated 10.10.2017. On 27.10.2017, the son of complainant moved an application to the OP and requested to adjust the amount to the tune of Rs.95227/-of his application no.1040 in the account of his mother as he was not having sufficient funds. OP considered the request and the said amount adjusted in the account of complainant. Complainant again deposited Rs.7,00,000/- on 05.12.2019 and thus a total sum of Rs.8,90,454/- has been deposited by the complainant with the OP. On 14.07.2020, an agreement of sale was executed by the OP in favour of complainant. It is further alleged that as per clause 10 of the said agreement, the development work should be compelted within 36 months from the date of the draw, meaning thereby OP had to complete the project upto 04.10.2020. The basic price of the apartment was 19,04,540/-. Complainant had deposited to the tune of Rs.8,90,954/-. The complainant visited the site in question and found that there is no satisfactory construction as well as development made by the OP. The material used for the construction of the aforesaid apartment is not upto the mark and very lower quality. Moreover, the location and the number which was assured by the OP has been thoroughly changed. There was no sign of any basic amenities like sewerage, water and life and road as well as part as assured by the OP. It is further alleged that on 10.03.2021, complainant had given a termination notice to the OP by hand but OP refused to acknowledge the same. Complainant has deposited a sum of Rs.8,90,454/- with the OP in the hope of getting the physical possession of the apartment in question within the period of 36 months from the date of draw however, OP failed to develop the site in question, so the complainant is entitled to the compensation to the tune of Rs.50,000/-alongwith refund of the money as deposited by her a with interest. Complainant requested the OP so many times for refund of the abovesaid amount but OP did not pay any heed to the request of complainant and lingered the matter on one pretext or the other. The abovesaid act and conduct of the OP is illegal, null and void and deficiency in service and unfair trade practice due to which complainant has been suffering from great mental pain, agony and harassment. Hence complainant filed the present complaint.

2.             On notice, OP appeared and filed its written version raising preliminary objections with regard to maintainability; cause of action; locus standi; jurisdiction 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. and concealment of true and material facts. On merits, it is pleaded that in the general instruction in para no.22 of the instruction to fill the application form that the company shall endeavour to offer possession of the said apartment to the allottee within a period of four years of sanction/clearance of building plans or grant of environment clearance whichever to later subject to the force majeure conditions which inter-alia including strike, lock-out, court injunction, civil commotion or by reason of war etc. The Smart Homes Project is being developed pursuant to the licences no.02 of 2016 dated 05.03.2016 granted by Director General Town and Country Planning, Haryana Chandgarh vide letter endorsement no.LC-3070-JE (BR)-2016/4922-4936 dated 10.03.2016 and the developer has got the building plan approved vide memo no.Zp-1112/AD(RA)/2017/4047 dated 03.03.2017 from the office of DGTCP and the project shall be developed by the developer in accordance with the approvals and sanctions including environment clearance no.SEIAA/HR/2017/682 dated 24.10.2017 and as such the said project is being developed and constructed in accordance with agreement. It is further pleaded that due to lockdown the work throughout India is affected and the work remained stopped some time. This project is registered in HRERA and now HRERA has granted the extension in registration of project is valid upto 08.07.2022 which include general extension of nine months due to covid-19. Since more than four months are still available with the promoters for completion of the project, the promoters may approach the authority at an appropriate time for further extension. The complainant has filed the present complaint premature. It is further pleaded that the total sale price of the apartment is Rs.19,89,320/- in which only Rs.8,90,954/- has been deposited by the complainant and complainant has became defaulter by not making the payment of remaining amount. The OP sent many demand notices and its reminders but complainant did not deposit the remaining payment. It is further pleaded that the construction work is all completed and the finishing work is going on and complainant himself became the defaulter for making the payment, so she is not entitled for any compensation. There is no deficiency in service and unfair trade practice on the part of the OP. 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, copies of broacher/invitation letter dated 04.10.2017 Ex.C1 and Ex.C2, copies of receipts dated 04.10.2017 Ex.C3 and Ex.C4, copies of receipts of Rs.95,277/- dated 05.09.2017 Ex.C5 and Ex.C6, copies of receipts dated 10.10.2017 of Rs.95,277/- and receipts dated 05.12.2019 of Rs.7,00,000/- Ex.C7 and Ex.C8, copy of agreement dated 14.07.2020 Ex.C9, copy of payment sheet Ex.C10, copy of payment plan Ex.C11, copy of site plan Ex.C12, copy of registration of agreement Ex.C13, photographs of site Ex.C14, copy of termination letter dated 10.03.2021 Ex.C15 and closed the evidence on 15.06.2022 by suffering separate statement.

5.             On the other hand, OP failed to tender any evidence after availing several opportunities including three last opportunities and  evidence of OP was closed on 10.05.2023 by this Commission.

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

7.             Learned counsel for complainant, while reiterating the contents of the complaint, has vehemently argued that complainant had purchased an apartment in the project of the OP. The complainant had paid a sum of Rs.8,90,454/- till 05.12.2019.  As per the OP, the development work would have be completed within 36 months from the date of draw but OP did not complete the development work and construction of apartment on the spot within stipulated period. Complainant approached the OP several times and requested either to complete the construction work or to refund the amount deposited by her with interest but OP did not do so. The OP is enjoying the hard earned money of the complainant from the date of its deposit. 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 OP, 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 does 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.  He further argued that after obtaining the registration certificate on regarding the project, the OP started the construction of flats and the OP is bound to deliver the possession to the complainant after clearing the balance amount but complainant herself became defaulter for not making the payment of the remaining amount. The construction work of the flats is likely to be completed and the finishing work is going on. There is no delay on the part of the OP and lastly prayed for dismissal of the complaint.

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

10.           Admittedly, complainant purchased an apartment in the project of the OP. It is also admitted that complainant has deposited an amount of Rs.8,90,454/- with the OP till 05.12.2019.

11.             The OP has alleged that complainant does not fall under the definition of consumer, as the complainant 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. We do not agree with the contention of the OP. It is a settled proposition of law, that complaint under Consumer Protection Act, being an additional remedy. 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 judgments and facts and circumstances of the case, the present complaint is maintainable before this Commission. Hence, the plea taken by the OP has no force.

14.           Vide letter Ex.C15 dated 10.03.2021 requested the OP to terminate her apartment and refunded the deposited amount alongwith interest but OP neither replied the said letter nor refunded the deposited amount.               

15.           The complainant has alleged that the project was to be completed within 36 months from the date of draw i.e. till 04.10.2020 but OP has neither completed the development work nor fulfilled all the terms and conditions of the agreement. Both the parties are bound with the terms and conditions of the Agreement but OP has failed to complete the project within stipulated period.       

16.           Complainant has relied upon the photographs Ex.C14. On perusal of the said photographs, it appears that development work has not been completed at the site. Furthermore, OP in their its version itself admitted that the construction work of the flats is completed but the finishing work is going on. Meaning, thereby, development work is not completed at the site in all respects till date. To rebut the evidence produced by the complainant, OP did not tender any evidence, hence the evidence produced by the complainant is unchallenged and unrebutted and there is no reason to disbelieve the evidence of the complainant. Hence, it is proved on record that OP has 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 case laws:- 

17.           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”.

18.           Keeping in view the ratio of the law laid down in the abovesaid judgments, facts and circumstances of the complaint, the act of the OP 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 pain, agony and harassment and litigation expenses, etc.

19.           In view of above discussion, we allow the present complaint and direct the OP to refund the amount of Rs.8,90,454/- (Rs. eight lakhs ninety thousand four hundred fifty four only) with interest @ 9% per annum from the date of deposit till its realization. We further direct the OP 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. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance

Announced

Dated:10.04.2024                                                                     

                                                               

                                                                  President,

                                                     District Consumer Disputes

                                                     Redressal Commission, Karnal.

 

 (Vineet Kaushik)       (Dr. Suman Singh)

                          Member                          Member