DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No.160/2020
1. Mrs. Chandni Mathur
C-38, Second Floor,
Green Park Main,
New Delhi-110016
also at:
A-13 Golf View Apartments
Saket, New Delhi-110017
2. Mrs. Dolly Bhonsle
Through: Constituted Attorney
Sh. Ashok Mathur
A-13 Golf View Apartments
Saket, New Delhi-110017
….Complainants
Versus
1. M/S DSS Builtech Pvt Ltd
Regd. Office: 506, 5th Floor,
Time Square Building
B Block, Sushant Lok, Phase-I
Gurugram, Haryana
2. M/s Silverglades Holdings Pvt. Ltd.
5th Floor, Time Square Building
B Block, Sushant Lok, Phase-I
Gurugram, Haryana
….Opposite Party
Date of Institution : 30.09.2020
Date of Order : 11.09.2024
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Present: Adv. S.K Mathur for complainant.
Adv. Aditya Malhotra, proxy counsel on behalf of Adv.
Aishwarya Sinha for OP.
ORDER
Member: Ms. Kiran Kaushal
1. Facts of the case as pleaded by the complainants are that complainant booked a 2BHK Flat through M/s Sliverglades Holdings Pvt Ltd (OP-2), developed by M/s DSS Buildtech Pvt Ltd. (OP-1).
2. It is stated that the complainants based on the representations made by OPs decided to purchase an apartment worth Rs.76,00,000/- admeasuring around 1350 sq. ft super area with the basic sale price of Rs.4,656/- per sq. ft. in the project ‘The Melia’. Complainants paid Rs.6,00,000/- towards the booking made in the project on 24.10.2013. Receipt of the same is annexed as Annexure C-2 . As per the assurances made by OP their project was to be completed and possession was to be handed over to the complainants by 2016. However, OP in April, 2015 intimated the complainants that there was delay of approximately 2 years in the commencement of work which was to be completed in October, 2016.
3. It is next stated that OP-1 issued a demand letter dated 17.09.2014 to pay Rs.13,43,948/- towards the amount that had become due in accordance with the payment plan. It is stated that the said demand was illegal as OPs had attained the approvals from various government agencies on 21.04.2015. Nevertheless said amount was paid at a pre-launch stage by the complainants vide two cheques dated 10.10.2014 and 20.10.2014 (Rs.6,30,000/- and Rs.7,13,948/-). Receipts of the same are annexed as Annexure C-4.
4. Allotment letter dated 24.04.2015 was issued by OP-1 for Flat No. D402 situated on the fourth floor, subject to accepting the terms and conditions of the Buyer Agreement, which was to be executed at the appropriate stage.
5. OP-1 issued another demand letter dated 01.02.2016 demanding a payment of Rs.3,25,673/- to which complainant no.2 vide an email dated 02.03.2016 sought clarification regarding the aforesaid demand and expressed her dissatisfaction with the progress in the construction work and the delays being caused. In the said email she stated that the said project was committed to be completed by 2016 but till March, 2016 even the first slab had not been constructed. Complainant No.2 requested for a time frame of construction work and also requested for Buyer Agreement to be executed. Vide the said email, she also requested OPs to provide the list of buyers. Since no reply was forthcoming, complainant no.1 wrote numerous emails to OP-1 requesting for a reply to her email dated 08.03.2016.
6. It is next stated that OP-1 vide letter dated 30.03.2016 asked the complainants to execute the Buyer Agreement. Upon reading the agreement, it was noticed that the agreement was one sided, void and it did not even disclose the mandatory carpet area of the flat as per the provisions of law. OPs did not intimate about the registration of the project under (H) RERA Authorities.
7. It is stated that to utter shock of the complainants the project which was launched in 2013 and was to be ready in three years, but as the last approval was received only in April, 2015 made the tentative delivery of the project in the year 2019 i.e more than six years of launch. Complainants also expressed their discontent vide emails that the customers were charged interest on delayed payments, whereas no interest was being paid to the customers for their money deposited with the OPs since 2013.
8. It is further stated that OP-1 vide letter dated 02.01.2017 informed the complainants about the levying of HVAT (Haryana Value Added Tax). OP-1 kept on issuing demand letters alleging outstanding dues without giving any definite time for completion of the project in question. OP-2 issued another letter dated 24.11.2017 informing the complainants about introduction of new regulations and compliance such as RERA and GST which had led to a turmoil in the real estate industry.
9. Aggrieved by the delay in completion of project, complainant no.1 vide email dated 29.07.2019 requested for refund of Rs.19,33,648/- along with interest @18% p.a from OP-1. Thereafter, OPs kept sending the demand letters to the complainants but failed to provide the flat in question.
10. Hence, alleging deficiency in service and unfair trade practice, complainant approached this Commission for direction to OPs to refund sum of Rs.19,33,648/-; to pay the above stated amount @12% p.a w.e.f from date of booking i.e July, 2013 till 14.08.2020 and pendent lite interest till realization; to pay Rs.1,00,000/- as compensation for mental agony and harassment and Rs.1,00,000/- on account of litigation chargers.
11. As the reply of OP was not filed within the stipulated period , right to file reply of OP was closed vide order dated 13.07.2022. Evidence of both the complainants and written submissions on behalf of both the parties have been filed. Arguments advanced by the learned counsels are heard. Material placed on record is perused.
12. Receipt dated 24.10.2013 filed with the complaint shows that payment of Rs.6,00,000/- was made to OP-2 by the complainants. It is seen that a demand letter dated 17.09.2014 was issued by OP-2 wherein Rs.13,43,948/- was demanded from the complainants . Thereafter, two receipts dated 10.10.2014 and 31.10.2014 show that Rs.6,30,000/- and Rs.7,13,948/- were paid by the complainants to OP-1.
13. It is noticed that OPs after collecting Rs.19,43,948/-by October 2014, issued the allotment letter to the complainants on 24.04.2015. It is next seen that a demand letter dated 01.02.2016 wherein Rs.3,25,673/- was demanded by the OP-1 was objected to by complainant No.1 vide email dated 02.03.2016. OP-1 did not respond to the queries raised by the complainants.
14. As it was Construction Linked Payment Plan the complainants were to make payments as per the stage of the construction in the project. Complainants vide various emails requested for a time frame within which the project was to be completed but did not receive any positive response from OP. It is seen that OP kept sending the demand letters without informing the complainants regarding the progress in construction. Failure on behalf of OP to update the complainants about the progress of construction ,to our mind is deficiency of service.
15. It is next noticed that Buyers Agreement was finally provided to the complainants on 30.03.2016. As per Clause 14.1 of the Buyer’s Agreement-
“the company (OPs) proposed to hand over possession of the apartment within a period of 48 months from the date of receiving the last approvals required for commencement of construction from the competent authority and or the date of signing of the agreement, whichever is later and to this period to be added for the time taken in getting fire approvals and Occupation Certificate (OC).”
16. OPs contend that the due date of the completion of their project is 25.04.2022 which is in accordance to the HRERA registration , complainants have chosen to withdraw from the said agreement on 27.07.2019 therefore, the present complaint is premature in nature. In our opinion the complainants who have paid substantial amount in the year 2014, it would be unfair and unjust to expect them to wait till the year 2022 to get possession . OPs have failed to fulfill there contractual obligations by not offering and providing the possession within stipulated period or within reasonable time thereafter.
17. Hon’ble Supreme Court in Pioneer Urban Land & Infrastructure Ltd. vs Govindan Raghavan in CA NO. 12238 OF 2018 with Pioneer Urban Land & Infrastructure Ltd Versus Geetu Gidwani Verma & Anr in CA NO. 1677 OF 2019 held as under-
“ In Fortune Infrastructure & Anr. v. Trevor D’Lima & Ors.,3 this Court held that a person cannot be made to wait indefinitely for possession of the flat allotted to him, and is entitled to seek refund of the amount paid by him, along with compensation. “
“….. terminating the Apartment Buyer’s Agreement by filing the Consumer Complaint, and cannot be compelled to accept the possession whenever it is offered by the Builder. The Respondent – Purchaser was legally entitled to seek refund of the money deposited by him along with appropriate compensation.”
18. In light of the discussion above, OP-1 is directed to refund Rs.19,33,648/- with interest @9% p.a from the date of making the payments within 03 months from the date of the order, failing which OP-1 shall be liable to pay the above stated amount @12% p.a till realization.
Parties be provided copy of the judgment as per rules. File be consigned to the record room. Order be uploaded on the website.
