Haryana

Panchkula

CC/32/2016

NITIN KAROL & ANOTHER - Complainant(s)

Versus

M/S GLM INFRATECH PVT.LTD AND ANOTHER. - Opp.Party(s)

VIPUL DHARMANI.

03 Aug 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  PANCHKULA.             

                                                                  

Consumer Complaint No	:	32 of 2016
Date of Institution	:	16.02.2016
Date of Decision	:	03.08.2016

                                                                                          

1.       Nitin Karol S/o Sh.Manohar Sood,

2.       Pooja Sood W/o Sh.Nitin Karol,

          Both R/o B-19, Sector-1, Phase 1, Main Road, New Shimla, Himachal Pradesh.

                                                                                          ….Complainants

Versus

M/s GLM Infratech Pvt. Ltd., (Estwhile M/s Bhoomi Infrastructure Company) having its office at Bhoomi Greens, Sector 30, Panchkula, Haryana, through its Managing Director Col. S.S.Deswal (Retd.).

 

                                                                        ….Opposite Party

COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.

 

Before:                 Mr.Dharam Pal, President.

Mrs.Anita Kapoor, Member.

Mr.S.P.Attri. Member.

 

For the Parties:     Mr.Vipul Dharmani, Adv., for the complainant.

Mr.Jaswant Singh, Adv., for the Ops.

ORDER

(Dharam Pal, President)

 

1. The complaint is filed by the complainants under Section 12 of the Consumer Protection Act, 1986 against the Op with the averments that previously the OP was a partnership firm in the name and style of M/s Bhoomi Infrastructure Company who approached the complainants persuading them to purchase a unit in its project “Amazon-The Defence County”, a group housing project being developed by it at Sector-30, Panchkula. The complainants applied for an Independent Unit/Flat in “Amazon-The Defence County”, vide application dated 03.03.2011 and were allotted flat No.1404 at 14^th Floor in Block No.B-3, measuring 1590 sq. ft. for an amount of Rs.65,69,172/- basic sale price and Rs.1,75,000/- for car parking, Rs.1,25,000/- for club membership, Rs.4,37,250/- qua EDC/IDW and Rs.1,59,000/- for PLC (Preferential Location Charges). The complainants paid 15% amount i.e. Rs.4,00,000/- vide Cheque No.655727 dated 02.03.2011 and another amount of Rs.4,74,800/- vide cheque No.655729 dated 07.03.2011 being 15% of the basic sale price of the unit to the OP. The Op issued an allotment letter dated 12.03.2011 (Annexure C-3) in favour of the complainants. The Op demanded Rs.6,92,494/- i.e. 10% amount as next installment vide letter dated 01.12.2011 within 15 days i.e.  by 15.12.2011 but the Op demanded the said amount without executing any agreement to sell. On representation of the complainants, the Op stated that the project was underway at full swing and the Apartment Buyer’s Agreement would be executed soon. The complainants paid the amount of Rs.6,92,494/- by RTGS against the receipt dated 13.12.2011 issued by the Op. After various requests made by the complainants, an Apartment Buyer’s Agreement dated 28.12.2011 was executed between the OP and the complainants and the complainants deposited the amount as and when demands raised by the Op but the OP failed to give the possession of the flat within 36 months of signing the agreement. As per the agreement, the OP was under legal obligation to deliver the possession of the flat to the complainant within 36 months of signing the Agreement i.e. latest by 28.12.2014. Thereafter, the Op informed the complainants vide letter dated 15.09.2014 that it had started construction of the project in the last week of April, 2014 i.e. after more than 3 years of receiving the application and booking amount. It is further submitted that the complainants were in urgent need of an accommodation as their daughter was having Asthma and was undergoing regular treatment since April, 2011 from PGI, Chandigarh. The doctors of PGI also suggested her not to stay at Shimla, due to its environmental allergens to which she was allergic to. Furthermore, the parents of complainants were suffering from Osteo Arthritis of knees with Osteopenia since 2008-09 which related to bones & joints. Thereafter, the OP again informed the complainants vide letter dated 19.03.2015 that it was in the process of roof slab of stilt of Tower B-3. It was also informed by the Op that the Op has reformed the constitution of M/s Bhoomi Infrastructure Company from a firm to a private limited company incorporated under the Companies Act, 2013 in the name and style of M/s GLM Infratech Pvt. Ltd. The complainants with other allottees approached the OP on 14.04.2015 and the Op admitted their inordinate delay on their part and assured the complainants that they would not be charging any interest on one delayed payment. But thereafter, the Op demanded two installments vide letter dated 08.06.2015. The complainants approached the Op several times regarding progress in construction and handing over of the possession but the OP failed to give a satisfactory reply. The complainants vide letter dated 14.05.2015 sought refund of the amount already deposited with the OP alongwith interest but to no avail. This act of the opposite party amounts to deficiency in service on their part. Hence, this complaint.
2. The Op appeared before this Forum and filed written statement by taking some preliminary objections and submitted that the present complaint is not maintainable. It is submitted that the complainants booked a unit No.1404, B-3, measuring 1590 sq. ft on 12.03.2011 for an amount of Rs.65,69,172/- in the project of OP and also deposited Rs.4,00,000/- vide cheque dated 02.03.2011, Rs.4,74,800/- on 07.03.2011, Rs.1,92,494 on 13.11.2011 and Rs.5,00,000/- on 13.12.2011 through RTGS. It is submitted that the Buyer Seller Agreement was executed on 28.12.2011 between the complainants and the OP and the complainants also opted the construction linked payment plan. It is submitted that the complainants were under legal obligation to make the payment as per the stage of construction as mentioned the Buyer Seller Agreement but he failed to make the payment as per construction linked payment plan. It is submitted that the Op sent letters and reminders to the complainants for deposit of the due installments alongwith interest but they never deposited the same. It is submitted that the tower of B-3 in which the unit B-3/1404 is located has been constructed upto 11^th floor. It is submitted that the OP served a final letter on 04.05.2016 that if they wanted to surrender the unit, he might do so in accordance with the terms & conditions of allotment letter and Buyer Seller Agreement and a total amount of Rs.28,53,225/- was outstanding towards the complainants. It is submitted that the payments were demanded from the complainants were based on construction linked payment plan. It is submitted that the allotment of unit of complainants had been cancelled after deduction of interest and other penalties as per terms and conditions of agreement/application form/buyer seller agreement accrued on account of delay in payment an amount of Rs.3,15,274/- is refundable to the complainants. It is submitted that the complainants were not having legal right to get refund of the deposited amount alongwith interest as per terms and conditions of the application/allotment letter/buyer seller agreement. It is submitted that the OP is liable to pay a penalty of Rs.5/- per sq. ft. per month to the complainants if there is any delay in completion of the building.  It is further submitted that the complainants were defaulter of payment hence, he has no right to get implementation of the penalty clause of the agreement. It is denied that the complainants were resident of Shimla and they had purchased the unit only for commercial purpose. It is submitted that the complainants got issued outdoor slip from PGI on 27.04.2011 whereas the flat was allotted on12.03.2011 and the booking amount of Rs.4,00,000/- deposited on 03.03.2011. Thus there is no deficiency in service on the part of the Op and prayed for dismissal of the complaint with costs.
3. Rejoinder to the written statement has been filed by the counsel for the complainats.
4. The counsel for the complainant has tendered the evidence by way of affidavit Annexure C-A alongwith documents Annexure C-1 to C-19 and closed the evidence. On the other hand, counsel for the Op has tendered the evidence by way of affidavit Annexure R-A alongwith documents Annexure R-1 to R-9 and closed the evidence.
5. We have heard learned counsel for the parties and have also perused the record.
6. Admittedly, the complainants booked a residential flat No.1404 at 14^th Floor in Block No.B-3, measuring 1590 sq. ft. vide allotment letter dated 12.03.2011 (Annexure C-3) with the Op. The complainants paid a total sum of Rs.15,67,294/- to the Op. The basic price of the residential unit was Rs.3650/- per sq. ft and total basic cost was Rs.65,69,172/-. Apart from the above, the Ops also charged club membership Rs.1,25,000/-, car parking Rs.1,75,000/-, Government dues (IDW) Rs.4,37,250/-, PLC (@ Rs.100 P.S.F) Rs.1,59,000/- and gross total for the residential unit was fixed for Rs.66,69,750/-. The discount of Rs.1,30,578/- was also granted. The complainants were to pay Rs.65,69,172/- for the abovesaid residential unit. Apartment Buyers Agreement was executed between the complainants and OP on 28.12.2011. The learned counsel for the complainants has argued that the Op did not raise construction on the flat and date of possession of flat was from the date of signing of buyer agreement dated 28.12.2011 with an extension of additional 12 months.
7. On the other hand, the counsel for the Op argued that the complainants did not make the due installments after repeated letters and reminders. The amount of Rs.28,53,225/- was outstanding against the complainants which was demanded by the OP on construction linked payment plan but they were failed to pay the same. He further argued that the unit of the complainants was cancelled after deduction of interest and other penalties as per terms and conditions of agreement/application form/buyer seller agreement accrued on account of delay in payment and an amount of Rs.3,15,274/- is refundable to the complainant. As per the condition No.26 of the agreement, the construction was to be completed within 36 months from the date of execution of the agreement with an extension of additional 12 months subject to timely payment by the allottee of the basic sale price. The Op vide their letter dated 15.09.2014 (Annexure C-7) stated that the construction work at the complainant project commenced in the last week of April, 2014. The Op also admitted that the project had entered rough waters. The Op also informed the complainant that all management related issues stand resolved and the new construction company with all its expertise and wherewithal will assist them in completing the project as per the revised schedule. The Op also informed the complainant about the progress of the project and stated that the construction of tower B roof slab of stilt in progress (Annexure C-10). As per the agreement, the construction of the unit was to be completed upto 28.12.2014 but till date the Ops have not handed over the possession of the abovesaid unit to the complainants.
8. The complainant has paid Rs.15,67,294/-. As per clause 26 of the Buyer Agreement, the construction was to be completed within a period of 36 months from the date of Buyer Agreement with addition of 12 months but the Ops took almost 1½ years to construct the units so they can defer the liability to pay the penalty to the allottee due to non-construction of the flat within stipulated period. The Ops have also not placed any document that the extension of 12 months time has been conveyed to the complainants at any time.
9. It is evident that the complainants were allotted Flat No.B-3/1404 at 14^th floor, measuring 1590 Sq. Ft. inclusive of Car Parking vide letter of allotment dated 12.03.2011 (Annexure C-3). Agreement to Sell was executed between the parties on 28.12.2011 (Annexure C-6). The total consideration amount of the flat was fixed for Rs.65,69,172/- as is evident through Annexure C-3. The complainants paid an amount of Rs.15,67,294/- to Opposite Party till December, 2011. Clause 26 of the Agreement reveals that the Op had to complete the construction of the unit within a period of 36 months from the date of execution of the said agreement with an extension of additional 12 months.
10. The complainants vide letter dated 14.05.2015 (Annexure C-14) sought the refund of the amount already deposited with the Op alongwith interest. Instead of refunding the amount, the Op has issued the notice for cancellation on 04.02.2016. Finally the Op cancelled the allotment and after deduction of interest and other penalties an amount of Rs.3,15,274/- is refunded. But the Op has not placed on file any cancellation letter on which date the allotment was cancelled.
11. The first question, which falls for consideration, is, as to whether there was delay in offering possession, on account of which, the complainant is entitled to refund of the amount deposited by him with interest or not. Part of Clause 26 of Agreement to Sell dated 28.12.2011 (Annexure C-6), being relevant, is extracted hereunder:-

“The developer shall, subject to force majeure circumstances or such other circumstances beyond the reasonable control of the Developer, endeavour to complete the construction of the Unit within a period of 36 months from the date of execution of this Agreement with an extension of additional 12 months”

As is apparent from the afore-extracted clauses, Opposite Party was to offer possession of the unit, in question, to the complainants by December, 2014. However, OP failed to offer possession within the aforesaid stipulated period i.e. by December, 2014. Even till date, the possession of the flat, in question, has not been offered or delivered to the complainants  by Opposite Partt. There is nothing on record, wherefrom it can be ascertained that possession of the flat, in question, was ever offered by Opposite Party to the complainants. It was clearly stated by the National Commission, in Emaar MGF Land Limited and another Vs. Dilshad Gill, III (2015) CPJ 329 (NC), that when the promoter has violated material condition, in not handing over possession of the unit, in time, it is not obligatory for a purchaser to accept possession after that date. In Shri Satish Kumar Pandey and another Vs. M/s Unitech Limited’s & Ors., Consumer Complaint No.427 of 2014 decided on 8.6.2015, the agreement between the flat buyers and the developers, M/s. Unitech ltd. for payment of compensation on account of delay in completion of the construction of the apartment was fixed at the rate of Rs.5 per sq. ft. per month of the Super Area. In the aforesaid case, it was contended on behalf of the developers that the complainants were entitled only to the agreed quantum of compensation for the period the project was delayed. Rejecting the said contention, the National Commission in Para 12, inte-ralia, held as under:-

“12……..The interest being charged by the Banks and Financial Institutions for financing projects of the builders is many times more than the nominal compensation, which the builder would pay to the flat buyers in the form of flat compensation. In fact, the opposite party has not even claimed that the entire amount recovered by it from the flat buyers was spent on this very project. This gives credence to the allegation of the complainants that their money has been used elsewhere. Such a practice, in my view, constitutes unfair trade practice within the meaning of Section 2(r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practice for the purpose of selling the product of the builder. Though, such a practice does not specifically fall under any of the Clauses of Section 2(r)(1) of the Act that would be immaterial considering that the unfair trades, methods and practices enumerated in Section 2(r)(1) of the Act are inclusive and not exhaustive, as would be evident from the use of word “including” before the words “any of the following practices”

Thus, in view of law laid down in Emaar MGF Land Limited and another Vs. Dilshad Gill’s case (supra), the complainant is entitled to refund of Rs.15,67,294/-.It is to be further seen, as to whether, interest, on the amount refunded can be granted, in favour of the complainant. It is not in dispute that an amount of Rs.15,67,294/- was paid by the complainants, without getting anything, in lieu thereof. The said amount has been used by Opposite Party, for its own benefit. It may be stated here that as per Clause 31 of the Agreement (Annexure C-6), Opposite Party could charge interest @ 18 % per annum for the first 90 days from the due date and 21% per annum after 90 days on the due amount/installment, if there remains delay in remitting the payment as per payment plan. It is well settled law that whenever money has been received by a party which ex ae quo et bono ought to be refunded, the right to interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the right to interest. It was also so said by the Hon’ble Supreme Court of India, in UOI vs. Tata Chemicals Ltd (Supreme Court), (2014) 6 SCC 335 decided on March 20^th, 2014. In view of above, the complainant is certainly entitled to get refund of the amount deposited by it, to the tune of Rs.15,67,294/- alongwith interest @ 9% simple interest from the respective dates of deposits till realization.

12. The next question, which falls for consideration, is, as to whether, the complainant is entitled to any compensation or not. The complainant deposited his hard earned money, in the hope that they will have a house to live in. As already discussed above, possession of the flat, in question, has not been delivered by Opposite Party till date. On account of non-delivery of possession of the floor, in question, by Opposite Party, to the complainant, complete in all respects, by the stipulated date and by not refunding the amount to them (complainants), the complainants had certainly suffered physical harassment and mental agony on account of the acts of omission and commission of Opposite Party, and escalation in prices, for which, they needs to be suitably compensated. In our considered opinion, compensation in the sum of Rs.1,00,000/- if granted, would be just and adequate, to meet the ends of justice.    
13. No other point, was urged, by the Counsel for the complainants and Counsel for Opposite Party.
14. For the reasons, recorded above, the complaint is accepted, with costs against Opposite Party and it is held liable and directed in the following manner:-

1. To refund the amount of Rs.15,67,294/-alongwith simple interest @ 9% per annum, to the complainants, from the respective dates of deposits, till realization, within a period of 30 days, from the date of receipt of a certified copy of this order;

(ii)     To pay an amount of Rs.1,00,000/-  (Rupees one Lac only), to the complainants, as compensation for mental agony and physical harassment, within a period of 30 days from the date of receipt of a certified copy of the order;

(iii)    To pay cost of litigation, to the tune of Rs.10,000/- to the complainants within a period of 30 days from the date of receipt of a certified copy of the order.

A copy of this order be sent to the parties free of costs and file be consigned to the record room after due compliance.

 

 

Announced

03.08.2016       S.P.ATTRI         ANITA KAPOOR         DHARAM PAL

                         MEMBER          MEMBER                      PRESIDENT

 

Note: Each and every page of this order has been duly signed by me.

 

    

                                 

                                                         DHARAM PAL

                                                          PRESIDENT