Haryana

StateCommission

CC/587/2018

PARAS ARORA - Complainant(s)

Versus

M/S GENESIS INFRATECH AND ANOTHER - Opp.Party(s)

KANWAR PAHUL SINGH

20 Aug 2024

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

  Date of Institution:18.10.2018

                Date of final hearing:11.07.2024

                                                Date of pronouncement:20.08.2024

 

Consumer Complaint No.587 of 2018

 

IN THE MATTER OF

 

Paras Arora aged 32 years, S/o Shri Harish Arora, R/o 147, Old PLA, Hisar, Haryana.

                                                                             .….Complainant.

Through counsel Mr. Kanwar Pal Singh, Advocate

 

Versus

 

1.      M/s Genesis Infratech Pvt. Ltd., having its office at 310-311, 3^rd Floor, Vipul Agora, M.G. Road, Gurgaon, Haryana through its Director/MD/Chairman.

2.      Sharwan Kuma Mishra authorized Signatory of M/s Genesis Infratech Pvt. Ltd., having its office at 310-311, 3^rd Floor, Vipul Agora, M.G. Road, Gurgaon, Haryana.

….Opposite parties.

Through counsel Mr. S.K. Tripathi, Advocate

 

 

CORAM:   Mr. Naresh Katyal, Judicial Member.

Mr. S.C. Kaushik, Member.

 

Present:-    Mr. Kanwar Pal Singh, Advocate, counsel for complainant.

None for opposite parties.

 

O R D E R

PER: S.C. KAUSHIK, MEMBER:

 

                    The brief facts giving rise for the disposal of the present complaint are that the complainant No.1 is a retired Army Personnel and complainant No.2 is his daughter and they planned to open their own publishing house for their livelihood, so they were in search of business plus residential accommodation. Opposite party (“OP”) in the year, 2011 floated a Commercial space/services unit project under the name & style of “114 Avenue” situated at village Bhajghera, Sector-114, Gurugram (Haryana). Complainants through application dated 28.09.2011 booked one unit bearing No.3A-20, 3^rd floor, type of space-office having super area of 644.58 sq. ft, at the rate of basic sale price of Rs.34,38,834/- and total sale price at the rate of Rs.37,41,787/- in the abovesaid project of OP. Allotment letter dated 07.12.2011 was issued by the OP for space measuring 500.880 sq. ft., provisionally and thereafter OP changed the area of unit No.3A-20 and unilaterally enhanced it upto 644.58 sq. ft. vide letter dated 01.10.2012. Thereafter, Space Buyer’s Agreement dated 10.10.2012 was also executed between the complainants and OP. Complainants have paid an amount of Rs.35,25,447/- to the OP on different dates as per their demands. It was alleged that as per clause No.32 of Space Buyer’s Agreement, possession of the said unit was to be handed over by the OP within 36 months complete in all respects from the date of signing of said agreement, which comes on or before the year, 2015. It was further alleged that after making the payment of huge amount, after provisional allotment, after enhancement of space and as well as repeated requests of complainants, the OP failed to deliver the possession of unit in question, so they requested for refund of deposited amount along with interest through letter dated 10.08.2018. Moreover, complainants also enquired about the site and found that OP filed to obtain various approvals for commencing the development work at site on time i.e. environment clearance, NOC from Pollution Control Board etc. Further, as per the complainants, location of project was not fully developed and basic amenities are still not there. Thus, there was deficiency in service and unfair trade practice on the part of the OP. The complainants prayed that OP be directed to refund deposited amount i.e. Rs.35,25,447/- alongwith interest @ 18% p.a. from the date of deposits till its realization; to  pay an amount of Rs.2,50,000/- as compensation on account of mental and physical harassment and agony and to pay Rs.55,000/- as litigation expenses.

2.                Notice of the complaint was issued against the OP, upon which OP appeared and filed its written statement, submitting therein that the complaint is not maintainable as the complainants are not consumer but he is an investor who applied for purchase of unit in question for earning benefits and not for the residential purpose of their own. It was further submitted that unit allotted to the investors was commercial unit and not retail unit. However, it was admitted that the complainants booked a unit bearing No.3A-20, 3^rd floor, type of space-office having super area of 644.58 sq. ft, at the rate of basic sale price of Rs.34,38,834/- and total sale price at the rate of Rs.37,41,787/- in the abovesaid project of OP. It was further submitted that the amount demanded by the OP was completely as per payment plan, which was also duly informed to the complainants. It is also admitted that the complainants have deposited an amount of Rs.35,25,447/- with the OPs, but still a balance amount of Rs.2,88,863/- is outstanding against the complainants in respect of the said unit. It was further submitted that the building where the complainants booked unit in question is ready since last three years, but OP could not apply for the occupation certificate due to non-completion of Dwarka Express Way and OP has been constrained due to force majeure such as non-development of basic infrastructural facilities like road connectivity, sewerage, water connection, electricity etc. there has been delay in handing over the possession.  It was further submitted that complainants themselves were defaulter in making payments and as per clause-18 of the Space Buyer’s Agreement, timely payments of installments and other charges was the essence of the agreement which was breached by the complainants. Other allegations made in the complaint were also denied. Thus, there was no deficiency in service on the part of the OP and prayed for dismissal of the complaint.

3.                When the complaint was posted for recording evidence of the parties, complainant-Anil Kumar Lal has tendered in evidence his affidavit as Ex.CW-A vide which he has reiterated all the averments taken in the complaint along with other documents Ex.C-1 to Ex.C-18 and closed the evidence.

4.                On the other hand, learned counsel for OP has tendered into evidence affidavit of Shri Chetan Swara, authorized signatory of OPs as Ex.OPW-1/A alongwith other documents Ex.OPW-1/1 to Ex.OPW-1/5 and closed the evidence on behalf of OP.

5.                The arguments have been advanced by Mr. D.K. Jangra, learned counsel for the complainants and Mr. Vaibhav Jain, learned counsel for OP. 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.

6.                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? 

7.                While unfolding his arguments, it has been argued by Mr. D.K. Jangra, learned counsel for the complainants that as far as the execution of the Space Buyer’s Agreement dated 10.10.2012 (Ex.C-17) is concerned, the same could not be disputed. It could also not be disputed that the complainants had paid Rs.35,25,447/- (Ex.C-5 to Ex.C-16) to the OP. It is also not controverted that the basic sale price of the said unit was Rs.34,38,834/- and total sale consideration was Rs.37,41,787/- included other charges. Complainants have already deposited Rs.35,25,447/- as per payment schedule and also received the allotment letter dated 07.12.2011 (Ex.C-3) from the OP, but the complainants were shocked to see the final statement that the OP has increased the area upto 644.58 sq. ft. vide letter dated 01.10.2022 (Ex.C-4) without any consent of complainants, but still failed to deliver the possession of unit in question. In these circumstances, the complainants had no other option, but, to seek the refund of the amount alongwith interest, which he had already paid, as they do not think that OP will be able to put him into possession of the unit as he wish to get.

8.                On the other hand, Mr. Vaibhav Jain, learned counsel for OP has argued that complaint is not maintainable as the complainants are not consumer but he is an investor who applied for unit in question for earning benefits and not for the residential purpose of their own. He further argued that unit allotted to the investors was commercial unit and not retail unit. Complainants booked a unit bearing No.3A-20, 3^rd floor, type of space-office having super area of 644.58 sq. ft, at the rate of basic sale price of Rs.34,38,834/- and total sale price at the rate of Rs.37,41,787/- in the abovesaid project of OP. He further argued that amount demanded by the OP was completely as per payment plan, which was also duly informed to the complainants and complainants have deposited only an amount of Rs.35,25,447/- with the OPs, but still a balance amount of Rs.2,88,863/- is outstanding against the complainants in respect of the said unit. He further argued that the building where the complainants booked unit in question is ready since last three years, but OP could not apply for the occupation certificate due to non-completion of Dwarka Express Way and OP has been constrained due to force majeure such as non-development of basic infrastructural facilities like road connectivity, sewerage, water connection, electricity etc. there has been delay in handing over the possession. He further argued that complainants themselves were defaulter in making payments and as per clause-18 of the Space Buyer’s Agreement, timely payments of installments and other charges was the essence of the agreement which was breached by the complainants. Finally, it was argued that there was no deficiency in service on the part of the OP and prayed for dismissal of the complaint

9.                In view of the above submission and after careful perusal of the entire record, it stands proved that upon floating a project by the OP-builder, a service unit/commercial space was purchased by the complainants for a total cost of Rs.37,41,787/- against which an amount of Rs.35,25,447/- has already been paid.  Space Buyer’s Agreement which was executed on 10.10.2012 also stands proved. To the utter surprise of this Commission it is quite surprising as to how inspite of the fact that allotment letter dated 07.12.2011 of the unit in question was offered to the complainants and thereafter, OP also increased the area of unit in question that too without any consent of complainants. As such, there was a clear breach of terms and conditions of the Space Buyer’s Agreement on behalf of the OP. It is the normal trend of the developers that developer would collect their hard-earned money from the individuals and would invest the funds in other projects and as a result thereof the project for which the investors have invested their hard-earned money is not completed.  As such, this Commission is of the considered opinion that there is deficiency in service of OP and thus, the complainants are well within his legal rights to receive refund of the amount of Rs.35,25,447/-  (Rs.Thirty five lacs twenty five thousand four hundred forty seven only) which they had already deposited with the OP. 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 thereafter the size of unit as well as sale consideration was increased by the OP that too without intimating or obtaining consent of complainants and under these constrained circumstances, 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.

10.              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.

11.              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.35,25,447/-  (Rs.Thirty five lacs twenty five thousand four hundred forty seven 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 complainants are 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.

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

13.              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.

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

 

 

Pronounced on 20^th August, 2024

 

                                                                        S.C Kaushik,                Naresh Katyal

Member                        Judicial Member

Addl. Bench                 Addl. Bench