BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SIRSA.
Consumer Complaint no. 191 of 2020
Date of Institution : 01.09.2020
Date of Decision : 05.06.2024.
Renu Bala aged 46 years daughter of Shri Madan Lal (wife of Shri Mahesh Kumar Daroliya), resident of Gali Bawri Wali, Nohria Bazar, Sirsa, Tehsil and District Sirsa.
……Complainant.
Versus.
1. M/s Green Space Infra-height Private Ltd., Registered Office at 306, Indra Parkash Building, 21- Barakhamba Road, New Delhi – 110001 through its M.D/ Authorized Person/ Director.
2. M/s Green Space Infra-height Private Ltd., Corporate Office at SCO-10, Ist Floor, Sector-26, Madhya Marg, Chandigarh through its authorized person.
...…Opposite parties.
Complaint under Section 35 of the Consumer Protection Act, 2019.
BEFORE: SH. PADAM SINGH THAKUR……..…PRESIDENT
SMT. SUKHDEEP KAUR………. …… MEMBER.
Present: Sh. N.K. Daroliya, Advocate for the complainant.
Sh. Anjani Kumar Gupta, Advocate for opposite parties.
ORDER
The complainant has filed the present complaint under Section 35 of the Consumer Protection Act, 2019 against the opposite parties (hereinafter referred as OPs).
2. In brief the case of the complainant is that complainant wanted to purchase a house from the hard saving whereas ops are firm/ company engaged in the business of development of infrastructure and commercial and residential colonies etc. and are developer of the project namely “Shree Vardhman Green Space” over the land measuring five acres which later on extended to 8.23 acres in village Billah, Sector-14, Panchkula, Extension-II, District Panchkula and were developing the land. It was affordable group housing colony which is being developed under the affordable group housing policy, 2013 dated 19.08.2013 read with amended policy dated 22.07.2015. The project is being developed in pursuant of licence no. 105/2014 dated 14.08.2014 granted by the competent authority as claimed by ops and as per their claim, the building plan of the project has been approved by the Director General Department of Town and Country Planning, Haryana vide memo No. ZP-1014/AD/ (RA)/ 2014/ 27777 dated 09.12.2014. That as per scheme and policy of the Government, ops had published and called the applications for allotment of flats in the said project alongwith booking amount and other documents required by ops, hence the complainant applied for allotment of flat under the said scheme in ops’ project vide application no. 1600 dated 23.07.2015 and as per result of draw complainant was allotted a flat no. 0308 in Block/ Tower no. F and same had duly been intimated to the complainant. As per government scheme and allotment letter the basic price of the flat was fixed as Rs.19,62,000/- which includes EDC and IDC charges and other taxes, charges etc. It is further averred that ops called her to deposit the amount of the flat as per schedule and as per schedule, 5% of price was to be paid at the time of booking, 20% of price was to be paid on 12.09.2015, 12.05% was to be paid on 12.03.2016, 12.05% was to be paid on 12.09.2016, 12.05% was to be paid on 12.03.2017, 12.05% was to be paid on 12.09.2017, 12.05% was to be paid on 12.03.2018 and remaining 12.05% was to be paid on 12.09.2018. That as per agreement, interest @15% per annum is/was payable on the delayed payment. The complainant also deposited 20% of price etc. as per call letter in time and thereafter an agreement was entered and executed by ops and complainant on 10.05.2016 as per their instructions and drafting. The complainant also paid the approximate price of the flat and other charges whatever ops claimed time to time as per schedule and same has already been accepted by ops’ office, however complainant every time requested the ops that the taxes i.e. service tax and some other charges are not applicable on the said project including the flat allotted to the complainant but ops always told that they had no such information and compelled to pay the tax and charges and same were paid under protest. That as per bye laws, instruction/ directions of Government and as per agreement, ops had to issue the call letter to propose and to offer possession of the allotted unit to the complainant within four years from the date of approval of building plan i.e. 03.12.2014 but till date the complainant has not received any such letter and even complainant visited on the site of the project but on the spot project was not running and no one was present on the site to explain anything. It is further averred that from the beginning till today, the complainant was only assured that ops shall provide all the basic amenities as detailed in the agreement and their officials also declared that no maintenance charges will be claimed by ops before obtaining completion certificate from department. That now complainant found that no basic amenities are available and colony is not fit to reside and there was no completion of structure even and only column and pillar were/ are standing there and no security system, 24 hours x 7 days water and electricity facility alongwith fully developed public park and sites for school and hospital alongwith other facilities are available on the site and even there is no sign of starting such development on the site whereas ops have to install the water harvest plant, sewerage and water treatment plant, power sub station for colony, community centre, shopping mall and other requisite necessary facilities as per the norm of the HUDA department and Town Planning department as well as their own promises but same were/ are also not there. It is further averred that they have also failed to hand over the possession within four years from the date of approval of building plan rather two years more have elapsed and ops have also failed to complete the construction work even and even no unit/ flat is ready on the site and project seems to be dead stop since long and they also failed to provide basic amenities. That the site is not fit for residence till date and no possession can be delivered actually on the spot which amounts to deficiency in service on the part of ops and moreover no possession has been offered by ops to the complainant till date. It is further averred that complainant was directed to pay the service tax whereas she requested so many times to the ops that project work is exempted under the Government Policy and Gazette Notifications and service tax is not applicable on the project work but ops compelled the complainant to deposit the service tax which was deposited under protest. That the action of ops regarding service tax was not tenable and in fact their firm is engaged in construction of the flats for BPL categories, EWS etc. who are exempted from service tax as per provisions of the Finance Act, 1994 and notification no. 25/2012-ST dated 20.06.2012 issued by the Government, the service of the construction etc. provided to the Government, a local authority or a governmental authority is exempted from payment of service tax but the ops had got deposited the service tax from the complainant against the notifications of the Government and have caused unnecessary harassment to the complainant. That ops made themselves liable to refund the entire amount received by them from complainant alongwith interest at the rate of @25% per annum from the date of payment till realization. The complainant number of times approached the ops regarding refund of deposited entire amount as well as refund of service tax charged from her illegally alongwith interest as they had totally failed to comply with the assurance and also violated the legal direction and provisions applicable on the project and failed to hand over the possession of the flat/ unit despite lapse of more than six years from the date of approval of building plan. It is further averred that ops had promised to refund the entire deposited amount and service tax alongwith interest @15% per annum from the date of deposit till realization but now they have been avoiding the requests of complainant with one false pretext or the other and now finally about few days ago they have flatly refused to make the payment and the act and conduct of the ops clearly amounts to deficiency in service and unfair trade practice and they have also caused unnecessary harassment to the complainant. Hence, this complaint seeking direction to the ops to make refund of the entire amount paid by complainant alongwith interest at the rate of @18% per annum from the date of payment till realization, to refund the amount received by ops from him on account of taxes, GST, penalty and surcharge/ interest etc. alongwith interest, to pay a sum of Rs.5,00,000/- as compensation for harassment, to pay a sum of Rs. two lacs as penalty on account of deficiency in service and unfair trade practice and also to pay litigation expenses.
3. On notice, ops appeared and filed written statement taking certain preliminary objections. It is submitted that complainant submitted an application to the ops for booking/ allotment of a flat having carpet area of 478 sq. feet in the said scheme/ colony. The application form signed and submitted by complainant had necessary particulars of the residential scheme such as description of land, license and building plans granted/ approved by DTCP, Haryana and also sailent terms and conditions on which the allotment was to be made to the complainant. The complainant read and understood the terms and conditions of the Flat Buyer Agreement and undertook to sign the same as and when required by ops. The said application form contained the payment plan in accordance with which the complainant was to make the due installments as specified. It is further submitted that under the policy, the allotment was required to be made through draw of lots to be held in the presence of a committee consisting of Deputy Commissioner or his representative, Senior Town Planner, DTP of the concerned district. The policy prescribed a detailed and transparent procedure for allotment of a flat in the affordable housing projects. The complainant was informed by the ops vide its letter dated 13.08.2015 that the draw shall be held on 25.08.2015 and she was invited to the said event. The draw of lots was conducted at the given date, time and place in the presence of the required officials of Govt. of Haryana. The complainant was one of the successful applicants in the said draw and as such the answering ops vide its letter dated 26.08.2015 intimated the complainant that she had been allotted Flat No. F-0308 in the said project. It is further submitted that on 10.05.2016 flat buyer agreement between the complainant and answering op was signed and executed at New Delhi and in terms of said agreement the complainant has paid a total sum of Rs.4,90,500/-. The complainant thereafter made various payments and the last being of Rs.2,64,573/- through RTGS dated 29.05.2018. That the ops neither indulged into any unfair trade practice nor committed any deficiency in service. It is the complainant only who breached her obligation to make timely payment of the installments and caused losses to the ops as timely payment was the essence of contract. The non payment of the agreed sale consideration by complainant for a considerable period of time without payment of agreed installments. In the real estate projects like the project in question the development being a multi-storied group housing development, the default in payment committed by even one allottee adversely affect the development of other units as well as inasmuch as the financial planning, the pace of the project etc. got adversely affected thereby causing impediment in the development and overall delay in delivery of the project. It is further submitted that complainant was fully aware that the project in question was a project under the affordable housing policy, 2013 of the Government of Haryana which contained strict check and balances to protect interests of all stake holders with special emphasis on the protection of rights of the potential purchasers of the flats. Almost each and every aspect of the transaction was governed by the policy. Even the draw of flats was to be held after permission of Government. Other preliminary regarding maintainability, complainant is not a consumer and jurisdiction are also taken.
4. On merits, it is submitted that complainant had agreed and undertaken to pay municipal tax, property tax, service tax, VAT, GST and any enhancement thereof including but not limited to enhanced development charges (EDC) or any other tax or charges etc. imposed by the Governments/ competent authority. If such charges are increased with retrospective or prospective effect after conveyance/ sale deed has been executed, then the allotee (complainant) undertakes to pay the same upon the intimation by the Developer. It is further submitted that as per agreement dated 10.05.2016, clause 8(1) states that “Subject to the force majeure circumstances, intervention of statutory authorities, receipt of occupation certificate and allottee having timely complied with all its obligations, formalities or documentation, as prescribed by the Developer and not being in default under any part hereof, including but not limited to the timely payment of installments of the other charges as per the payment of installments of the other charges as per the payment plan, stamp duty and registration charges, the Developer proposes to offer possession of the said flat to the allottee within a period of four years from the date of approval of building plans or grant of environmental clearance, whichever is later.” The ops got environmental clearance of the said project on 15.03.2016 which is an admitted fact by complainant herself as per agreement dated 10.05.2016. Therefore, by the above stated clause it is clearly understood that subject to the force majeure circumstances, intervention of statutory authorities etc. the ops were to offer the possession of the flat within four years from the date of approval of a building plan or grant of environmental clearance, whichever is later. As the environmental clearance was granted to the ops vide letter dated 15.03.2016, the said project was launched with full scale of development and positive efforts of op but due to the sudden emergence and occurrence of COVID-19 pandemic which was evident all over the nation/ country through continuous and long lockdowns with strict restrictions, the op was compelled and frustrated due to the above stated force majeure reason the said project got disrupted with immediate effect. It is further submitted that complainant as per his own choice had computed the due date i.e. from the date of approval of building plan, but it is to be noted that op got environmental clearance only on 15.03.2016 which after calculating four years come nearly in the month of March, 2020 which shows that complainant had misrepresented the facts and circumstances and agreed covenants of the agreement as per her own sweet will and choice. Due to the outbreak of Covid-19 in the month of March 2020 itself, the situation was beyond the control of the ops which itself represents the Force Majeure which was experienced not only by the whole country but by the whole world and apart from essential services and sectors, other sectors were totally restricted and not allowed to operate/ function. Due to lockdown situation got serious and all the non essential sectors got affected very badly. It is further submitted that from January 2020 onwards things have started moving out of control of the ops. A major force majeure event, situation and circumstances emerged and occurred that made the construction at site impossible for a considerable period of time and even before that the real estate sector was reeling under severe strain. However, such events/ situations really broke the back-bone of the entire sector and many real estate projects got stalled and came to the brink of collapse. The situation was made worsened by the dreaded second wave which again impeded badly the construction activities. The said unprecedented factors beyond the control of the ops and force majeure events have resulted so far in huge time loss and as such all timelines agreed stood extended. Remaining contents of complaint are also denied to be wrong and prayer for dismissal of complaint made.
5. The complainant in evidence has tendered her affidavit Ex. C1 and documents Ex.C2 to C6, photographs Ex.C7 to C13, aadhar card Ex.C14, affidavit and certificate of Sh. Anil Kumar Photographer as Ex.C15, Ex.C16.
6. On the other hand, ops have tendered affidavit of Sh. Sachin Jain, authorized representative as Ex. RW1/A and documents Ex.R1 to Ex.R5.
7. We have heard learned counsel for the parties and have gone through the case file.
8. It is an admitted fact between the parties that on 27.05.2015 complainant applied for allotment of a flat in the project of the ops in village Billah, Sector-14 Panchkula, Extension-II, District Panchkula which was being developed under affordable group housing policy and according to complainant, the ops stated that building plan of the project has been approved by the Director General Department of Town and Country Planning Haryana on 03.12.2014. There is also no dispute of the fact that complainant was allotted a flat no. 0308 and as per allotment letter the basic price of the flat was fixed as Rs.19,62,000/- which included EDC, IDC charges and other taxes etc. According to complainant despite payment of entire amount including taxes and charges etc. though complainant was not liable to pay any taxes and charges, the ops have failed to hand over the possession of the flat in question within four years from the date of approval of building plan which was allegedly approved on 03.12.2014 and even on the date of filing of present complaint two years more lapsed but the ops did not come forward to hand over the possession of flat and have not completed any basic amenities on the spot as per agreement dated 10.05.2016 (copy Ex.C5) and as such she is entitled to refund of her entire amount deposited with the ops alongwith interest. Although ops have alleged that it is the complainant only who breached her obligation to make timely payment of the installments and caused losses to the ops but their version has been belied by their own letters placed on file by ops themselves as Ex.R5 (pages 9) because up to 01.03.2016 only an amount of Rs.2,54,140/- was outstanding against the complainant and she paid remaining entire amount to the ops as per schedule. So, it is proved on record that complainant has paid total amount of Rs.17,07,860/- with the ops as per schedule of the ops/ payment plan up to 01.03.2016 but the fact cannot be ignored that ops were only demanding the remaining meager amount from complainant as per their plan but they have failed to prove on record that on the spot as per agreement they were providing basic amenities and they have also failed to hand over the possession of the flat in question within four years from the date of approval of building plan as per agreement dated 10.05.2016 because as per agreement the possession of flat was to be handed over to the complainant in the year 2018 as building plan was approved in 2014 and as such demand of interest from complainant without complete construction work and without any basic amenities at the site was not justified. Though ops have taken the plea that work was stopped due to COVID-19 disease in 2020 but ops have not justified that what happened between the period between 2018 till March, 2020 when Covid-19 was started and as to why work was not completed before start of Covid-19 because the possession of the flat was to be delivered in 2018 and even thereafter about four more years till today have elapsed but ops have not proved on record that project is complete, basic amenities have been provided at the site and that they are ready to hand over the possession of the flat in question. It may be possible that after payment of huge amount by complainant to the ops, she might have stopped some payment seeing the situation at the site i.e. non availability of basic amenities at the site but it cannot be said that it is the complainant only who breached her obligation to make timely payment of the installments rather it is proved on record that complainant was making payment of installments timely. Since the ops have not come forward with the plea that construction is complete on the site and all the basic amenities have been provided, so it is proved on record that there is deficiency in service and unfair trade practice on the part of ops. The complainant is justified in seeking refund of the amount deposited by her with the ops because a buyer cannot be made to wait indefinitely for the possession of the flat for which she has paid huge amount. So, the complainant is also entitled to refund of entire amount deposited by her alongwith interest besides compensation for harassment etc.
9. In view of our above discussion, we allow the present complaint and direct the opposite parties to make refund of the amount of Rs.17,07,860/- plus any other amount deposited by complainant alongwith interest at the rate of @9% per annum from the date of its respective deposits till actual realization to the complainant within a period of 45 days from the date of receipt of copy of this order. We also direct the ops to further pay a sum of Rs.50,000/- as compensation for harassment and Rs.10,000/- as litigation expenses to the complainant within above said stipulated period. A copy of this order be supplied to the parties as per rules. File be consigned to the record room.
Announced. Member President,
Dated: 05.06.2024. District Consumer Disputes
Redressal Commission, Sirsa.
