Haryana

Panchkula

CC/384/2020

DR.SANJAY KALRA. - Complainant(s)

Versus

M/S GLOBAL LAND MASTERS. - Opp.Party(s)

YAGYA DUTT SHARMA & SUBHAM SHARMA.

12 Sep 2022

ORDER

            BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,  PANCHKULA

 

                                                       

Consumer Complaint No	:	384 of 2020
Date of Institution	:	11.12.2020
Date of Decision	:	12.09.2022

 

 

1.     Dr. Sanjay Kalra aged about 58 years son of Sh.B.L.Kalra,

2.     Dr. Rita Kalra aged about 53 wife of Dr. Sanjay Kalra,

       

        Both residents of house no.425, Sector-7, Panchkula,

 

                                                                           ….Complainants

Versus

1.     M/s Global Land Masters, Amazon, The Defence County, Sector- 30, Panchkula through its managing director Col Surinder Singh              Deswal

2.     Col Surinder Singh Deswal, resident of House No.1411, Sector-21,      Panchkula.

3.     Abhimanyu Deswal, Director M/s Global Land Masters, Amazon   The Defence County, Sector-30, Panchkula.

4.     Shiv Kumar Gupta Director M/s Global Land Masters Amazon The       Defence County, Sector-30, Panchkula

5.     M/s Bhoomi Green Infrastructure Co.Gold City Plot No.11, Sector-      19D, Vashi Navi Mumbai-400705 Maharastra through its principal       officer.                                                                                                                                                                                    ….Opposite Parties

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019

 

Before:              Sh.Satpal, President.

                        Dr.Pawan Kumar Saini, Member

Dr.Sushma Garg, Member

 

For the Parties:   Sh.Yagya Dutt Sharma, Advocate for the complainant.

                        OPs No.1  to 5 already proceeded ex-parte  vide order dated 19.08.2021.

ORDER

(Dr.Pawan Kumar Saini, Member)

1.             The brief facts of the present complaint are that the OPs No.1 & 5 launched a group housing Project known as “Amazon-The Defence County in Sector-30, Panchkula, Haryana. It is submitted that original project was launched by OP No.5 and was take over by OP No.1. The complainants booked a flat with the OP on 13.04.2010 vide application dated 13.04.2010 and made payment of Rs.1,25,000/- vide cheuqe no.919213. The OPs had issued provision allotment vide letter reference no.BHOOMI/04/2010/PRO ALLOTMENT-209. The OP had promised to handover the possession of the flat within 30 months from the date of booking i.e. 13.04.2010. Due to changes in density by the department the OP had changed the flat area in the unit. The area of the flat was increased from 1478 to 1590 Sq Ft. The OP had informed the complainant vide ref no.BHOOMI/04/2011/change area-01 vide letter dated 27.04.2011 and also sent a demand notice vide notice dated 27.04.2011. The OP issued fresh provisional allotment of flat no.1701, Tower A++ in favour of the complainants on 25.03.2012. On 13.05.2014 the complainants were asked to sign a buyer seller agreement. The complainants had paid a sum of Rs.25,03,632/- till the signing of the said agreement which were duly acknowledged by the OPs.  It is further submitted that the OP even provided the layout site plan and specifications of the flat of the complainants. It is also stated that after even passing of more than 1 years, the complainants had not received any update/communication from the Ops about the project. On 24.07.2015, the complainant no.1 wrote a letter to OPs requesting to handover the possession of the flat or if there is further delay in commencing the construction then to refund the money paid by complainants to the OPs but the Ops even failed to start the construction of the Tower A++. Since the construction of the Tower A++ could not be started due to exclusive fault  on the part of OPs even after passing of 10 years from the date of booking of flat. In the mean time the complainants made various visits to the office of the Ops but the OPs always extended false assurances of allotment and possession of the flat. Due to the act and conduct of the OPs, the complainant has suffered mental agony, harassment and financially; hence, the present complaint.

2.             Notice was issued to the OPs No.1 to 5 through registered post, which were not received back either served or unserved despite the expiry of 30 days from the issuance of notices to OPs No.1 to 5; hence, they were deemed to be served and thus, due to non appearance of OPs No.1 to 5, they were proceeded ex-parte by this Commission vide its order dated 19.08.2021.          

3.             To prove the case, learned counsel for the complainant has tendered affidavit as Annexure C-A along with documents Annexure C-1 to C-17 in evidence and closed the evidence by making a separate statement.

4.             We have heard the complainant and gone through the entire record available on file, minutely and carefully.

5.             Evidently, a flat was booked by the complainants vide  cheque no.919213(Annexure C-1) amounting to Rs.1,25,000/- in the group housing project known as “Amazon-The Defence County”, in Sector-30, Panchkula, floated by OP No.5, which was allegedly taken over by OP No.1. The area of the flat was increased from 1478 to 1590Sq.ft. as conveyed to the complainants vide letter dated 27.04.2011(Annexure C-3). Thereafter, the flat no.1701, Tower A++, in favour of the complainants, was allotted vide fresh provisional allotment letter dated 25.03.2012(Annexure C-5). The Buyer Seller Agreement (Annexure C-16) was executed between the complainant and OPs on 13.05.2014, wherein the payment of Rs.25,03,632/- as made by the complainants had been duly acknowledged.

6.             The main grouse of the complainants is qua non delivery of the possession of the said allotted flat to them by the OPs and thus, it has been alleged that OPs No.1 to 5 have failed to adhere to the time schedule within which the possession was to be delivered.

                During arguments, the learned counsel for the complainants reiterating the averments made in the complaint has alleged the lapses and deficiencies on the part of the OPs and contended that the OPs have not even started the construction work qua tower A ++ and thus, alleging lapses and deficiencies on the part of the Ops have prayed for the acceptance of the complaint by directing the OPs to refund the deposited amount of Rs.25,03,632/- along with interest as well as to make the payment of compensation qua mental agony, harassment and litigations charges etc. 

7.             The OP No.1 to 5 have preferred not to contest the present complaint by remaining absent despite services of notices and accordingly, they were proceeded ex-parte vide order dated 19.08.2021 and thus, the assertions made by the complainant go unrebutted and uncontroverted.

8.             As per well settled legal propositions in a catena of judgments delivered by Hon’ble National Commission and Hon’ble Apex Court, the terms and conditions qua the delivery of possession of a booked flat/apartment/plot of the Builder Buyer Agreement is essence of the agreement, breach of which amounts to violation of basic terms and conditions of the agreement and thus, the same is not valid and justified and hence, not permissible. In the present case, as per clause 26 of the Apartment buyer agreement (Annexure C-16), it was binding upon the OPs to complete the construction at site within a period of 36 months w.e.f. date of execution of agreement. The said agreement was executed on 13.05.2014 and thus, the construction work was to be completed up to 12.05.2017 and if grace period of 12 months is added then the possession was to be delivered upto 12.05.2018. There is no version of the Ops as to the status of the development works at site. It needs little emphasis that all basic  facilities i.e. water, roads, sewerage and electricity etc. are required to be made available at the site by construction company/builder(OP) before offering  the possession, so as to enable the allottees/consumers to utilize the site in a proper and comfortable manner. Evidently, no offer of possession has been made so far by the OPs in the present case. Further, we are clueless as to the circumstances which prevented the Ops to complete the construction within the stipulated period. On the other hand, we find several letters and emails on record as sent by the complainants to Ops seeking the status of the completion of development works at site as well as refund of the deposited amount. The aforesaid discussion leads us to the irresistible conclusion that the OPs are deficient while failing to adhere to the Clause no.26 of the Apartment Buyer Agreement(Annexure C-16) wherein development works to be completed at site within 36 months. The Hon’ble National Commission in consumer complaint no.1429 of 2015 titled as Balinder Krishan Kaushal Vs. M/s Parsvnath Developers Ltd. decided on 25.02.2020 has held that the buyers of a flat cannot be asked to wait for indefinite period for possession of flat. The relevant para of the aforesaid order is reproduced as under:-

“Since the opposite party is not in a position to give the possession of the flat and the buyer cannot be asked to go on waiting for an indefinite period. It has been so held by the Hon’ble Supreme Court in Pioneer Urban Land & Infrastructure Ltd.  Vs. Govindan Raghvan II(2009) CPJ 34(SC) that where there is delay  in handing  over the possession, the allottee cannot be forced to wait indefinitely  and compelled to take the possession of the flat and he is entitled for the refund of the money”.

9.             Recently, the Hon’ble National Commission in consumer case no.2562 of 2018 titled as Sangeeta Agarwal & Anr Vs. M/s Chintels India Ltd. vide its order dated 27.05.2022  has held that plot  purchaser cannot be made to wait for an indefinite period of time hoping to obtain possession and that seeking refund of amounts deposited is a valid Redressal. The Para No.14 of the said order is reproduced as under:-

The Hon’ble Supreme Court in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra in Civil Appeal no.3182 of 2019 decided on 25.03.2019 as well as in Pioneer Urban Land and Infrastructure Ltd. Vs. Govindan Raghavan and connected matter in CA No.12238 of 2018 decided on 02.04.2019-(2019) 5 SCC 725, has held that flat purchasers cannot be made to wait for an indefinite period of time hoping to obtain possession and that seeking refund of amounts deposited is a valid Redressal. In the present complaint, there is neither a valid occupation certificate nor can the opposite party claim to have made a proper offer of possession. Therefore, there is, merit in the complainants’ averments.

 10.           In the light of aforementioned factual as well as legal position, it is concluded that there has been lapses and deficiencies on the part of OPs No.1 to 4, while delivering the services to the complainants, for which they are liable jointly and severally to compensate the complainants.  The present complaint is dismissed qua OP No.5.

11.            As a sequel to the above discussion, we partly allow the present complaint with the following directions to the OPs No.1 to 4:-

1. To pay a sum of Rs.25,03,632/- to the complainant, along with interest @ 9% per annum w.e.f. the date of each deposit  till actual realization. 
2. To pay an amount of Rs.25,000/- to the complainant on account of mental agony and harassment.
3. To pay an amount of Rs.55,00/- as cost of litigation charges.

 

12.            The OPs No.1 to 4 shall comply with the directions/order within a period of 45 days from the date of communication of copy of this order to OPs No.1 to 4 failing which the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, against the OPs No.1 to 4. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance. 

Announced on:12.09.2022

 

 

 

        Dr.Sushma Garg         Dr. Pawan Kumar Saini         Satpal

                Member                     Member                     President

 

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

 

                                            Dr. Pawan Kumar Saini

                                            Member