STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA
Date of Institution: 29.05.2018
Date of Final Hearing: 25.07.2024
Date of Pronouncement: 30.09.2024
Consumer Complaint No.344 of 2018
1. Mr. Bharat Bhushan S/o Sh. Bhagwan Dass, R/o H.No. 117, Ward No. 12, Indri, Karnal.
2. Mr. Ravinder Nath Sharma S/o Sh. Raj Kumar Sharma, R/o H.No. 103, Ward No. 2, near Krishna Mandir, Indri, Karnal.
....Complainants
Versus
1. M/s Jindal Realty Private Limited, M-11, UGF, Middle Circle, Connaught Place, New Delhi-110001.
- Jagran Developers Private Limited, Kurukshetra. The Galleria Global City, Sector-29, Umri Road, Kurukshetra (formerly known as: Jagran Agents Private Limited & Jindal Reality Private Limited) through its Manager. ...Opposite Parties
CORAM: Sh. Naresh Katyal, Judicial Member.
Sh. S.C. Kaushik, Member.
Argued by:- Mr. Naveen Sheokand, counsel for complainants.
Mr. Drupad Sangwan, counsel for opposite parties.
ORDER
NARESH KATYAL, JUDICIAL MEMBER:-
Complainants have alleged that M/s Jagran Developers Pvt. Ltd., who is owner in possession of 88.787 acres of land located at Sector 29 and 30, Village: Umri and Palwal, Tehsil and District: Kurukshetra has been granted licence by Director, Town and Country Planning-Haryana for setting up residential plotted colony. Project i.e. multistory retail-cum-office complex named ‘The Galleria’ in Kurukshetra Global City was to be developed by M/s Jindal Realty Private Limited. Complainants applied for commercial component vide application dated 22.06.2011 for allotment of shop/office in said development scheme and was allotted shop-cum-office i.e. Property No. GF-63 and agreement dated 22.01.2014 (Annexure C-2) was executed. They were assured that: possession will be handed over to them within two years from date of allotment. They were apprised that said OP No. 2 will undertake construction and development of ‘The Galleria Project City’ as all developing rights have been withdrawn from M/s Jindal Realty Pvt. Ltd. As per clause 27 thereof, possession of shop-cum-office was to be handed over to them within 36 months with extended period of six months. Till date (date of filing complaint); said OP has/had not handed over possession of shop-cum-office to them while they have paid over Rs.22,87,266/- which is apparent from letter Annexure C-3. In spite of lapse of seven years (as on date of filing of this complaint); OP has not handed over possession to them, or in the alternative has not refunded the amount which as per allegations is unfair and illegal trade practice. Accordingly, complaint has been filed for issuance of directions to OPs to refund Rs.21,62,500/- to them (complainants) with 24% interest p.a. and to pay them: Rs.5.00 lacs as compensation for deficiency in service, unfair trade practice, mental torture and agony and Rs.50,000/- as litigation expenses. Text of complaint is supported by affidavit.
2. OPs raised contest. In their jointly filed written statement; it is pleaded that complaint is not maintainable being without merit and totally misconceived. It is an abuse of process of law. It is admitted that complainants have entered into shop/office buyer agreement dated 22.01.2014 and was allotted shop/office No. GF-63. Complainants have defaulted on balance payments towards sale consideration. Complainants have instituted the complaint only with a purpose to extract interest amount on the part-payments made to OP No. 2. Buyer Agreement specifically provides for an alternative disputes mechanism by way of arbitration. OP No. 2-M/s Jagran Developers Pvt. Ltd. overtook development of project. It was duly intimated to complainants as per letter dated 26.04.2013. Complainants are governed by terms and conditions of agreement dated 22.01.2014. Clause 27 thereof stipulates that developers would contemplate to complete the construction of premises within 42 months from date of agreement subject to force majeure circumstances. It is pleaded that OP No. 2 handover/offer possession of shop subject to clearance of dues and other charges by complainants. Complainants have not paid complete sale consideration as per Buyers Agreement. By denying other pleas of complaint; its dismissal has been prayed by asserting that there is no deficiency in service on the part of OPs. Text of written statement is supported by affidavit.
3. Parties led their respective evidence. Learned counsel for complainants has tendered affidavit Ex.CA sworn by complainant No.1-Bharat Bhushan towards affirmative statement on oath and also relied upon documents Ex.C-1 to Ex.C-3 and closed evidence on behalf of complainants through his statement dated 26.05.2022. Per contra, OPs have tendered duly sworn affidavit Ex.R-A of Sh. Shubham Sharma–authorized representative of both OPs and relied upon documents viz: Ex.R-1 to Ex.R-7 and closed evidence through statement of its counsel on 06.03.2023.
4. We have heard learned counsel for the parties at length and with their able assistance have perused the material brought on record of this complaint.
5. Learned counsel for complainants has urged that complainants are entitled to claim refund of amount so deposited by them with OPs for shop-cum-office which, though was allotted to them, but of which, they were never put in actual physical possession, strictly as per time frame work (maximum 42 months), so specified in clause 27 of Builder Buyer Agreement. It is urged that OPs cannot wriggle out from their liability to refund the amount on above scenario.
6. Per contra, learned counsel for OPs has urged that complaint is pre-mature; same has been filed before expiry of period of 42 months, stipulated in clause 27 of Builder Buyer Agreement, meant for delivery of possession. Further, it is urged that genesis of dispute involved in this complaint, was required to be referred to arbitration as per Builder Buyer Agreement and thus Consumer Commission has no jurisdiction. It is also urged that offer of possession letter dated 23.01.2020 Ex.R-5 was served upon complainants, thereby intimating them to take possession of unit No.GF-63 at Kurukshetra Global City, in project named ‘The Galleria’ within 30 days. As per document Annexure-2 appended along with letter of offer of possession; Rs.1,92,090/- was outstanding due towards complainants, to be paid by them. It is further urged that in fact Rs.22,75,813/- has been received from complainants which is apparent from above demand letter dated 23.01.2020. Collectively, on strength of documents; it is urged that there arise no question of any deficiency in service or unfair trade practice on OPs part.
7. We have minutely analyzed rival submissions. Admittedly, complainants had applied for shop-cum-office commercial component in project named ‘The Galleria’ floated by OPs. Admittedly, Builder Buyer Agreement dated 22.01.2014 was executed. Admittedly, Unit No. GF-63 was allotted to complainants. However, OP No. 2 as per its demand letter dated 23.01.2020 so appended along with its letter of even date (23.01.2020) regarding offer of possession of unit No. GF-63 has admitted that Rs.22,75,813/- has been received from complainants. Identical inference is derived from document Ex. R-6 which recites the ‘cleared amount’ being Rs.22,75,814/- and this Commission accepts that Rs.22,75,814/- has/had been deposited by complainants being a fact admitted by OPs. Admittedly, as per OP’s demand letter dated 23.01.2020; remaining amount due with interest from complainants were of Rs.1,92,090/- qua unit No. GF-63. No doubt, OPs have offered possession of this unit (GF-63) to complainants through its letter dated 23.01.2020 and commanded upon them to take possession within 30 days by paying due amount of Rs.1,92,090/- yet, complainants cannot be compelled to adhere to and follow said letter dated 23.01.2020 of OP No.2. Reason in this regard is obvious. There is sheer non-compliance of clause No. 27 of Builder Buyer Agreement on behalf of OP No. 2, as per which time is the essence of agreement viz-a-viz putting complainants in physical possession of allotted unit and this time limit, at its maximum was of 42 months, which already stood elapsed way back on 21.07.2017. Surprisingly, offer of possession letter is dated 23.01.2020. It is accordingly established that more than two years after expiry of stipulated date (21.07.2017) as per text of clause 27 of Builder Buyer Agreement; OP No. 2 has offered possession of subsequently allotted unit (GF-63) to complainants. From these facts, it is held that: complainants cannot be compelled to wait for possession of allotted unit for an abnormally prolonged period, without there being any fault on their part, despite that they had already parted with huge amount for the allotted unit.
8. OPs cannot be allowed to enrich themselves at the cost of complainants. Needless to say that OPs might have/had generated enormous gains from the amount deposited by complainants with it, regarding unit in question. Complainants have been put in a vulnerable state as they have neither been put in physical possession of allotted unit, timely, nor any refund of amount deposited by them has been given. OPs have created all types of sordid conditions for them by not adhering strictly to time limit meant for providing physical possession of allotted unit to complainants as per Builder Buyer Agreement. These ground realities have further added to the already worsened tale of woes of complainants. Builder Buyer Agreement constitutes a binding effect, so far as terms and conditions stipulated therein are agreed upon. Meaning thereby, OP No. 2 has to strictly adhere to the time line which was essence of builder buyer agreement for the purpose of handing over the possession. Once, there is violation on the part of OP No. 2 with regard to time limit regarding possession then an indefeasible legal right accrues in favour of complainants to claim refund, in total disregard to the offer of possession so made by OPs. As a matter of fact, any completion certificate or occupation certificate obtained by OPs after expiry of timeline meant for handing over the possession as per agreement will not frustrate and curtail consumer’s right to claim refund. Deficiency in service and unfair trade practice on part of OPs is ex-facie proved.
9. Allied argument that complainants should have resorted to arbitration proceedings is bereft of credence as filing of complaint under Consumer Protection Act is a legally recognized remedy available to them and this remedy is independent and special. Hence, this contention on behalf of OPs stood repelled.
10. As a sequel to aforesaid discussion, this Commission of firm opinion that this complaint must succeed. Accordingly, it is accepted. Consequently, directions is issued to OPs to refund Rs.22,75,813/- to complainants within a period of 45 days from today and this amount (Rs.22,75,813/-) will also carry simple interest @7% p.a. from date of filing of this complaint till its realization. Complainants is also entitled to compensation of Rs.30,000/- for mental agony, harassment and litigation cost and this amount will not carry any interest. In case, OPs fail to discharge its liability in terms of this order within a period of 45 days then rate of interest would escalate from 7% p.a. to 10% p.a. for period of default. Since there are two complainants both separate persons, therefore, it would be upto them to apportion the refund amount amongst themselves.
11. Application(s) pending, if any stand disposed of in terms of the aforesaid judgment.
12. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The judgment be uploaded forthwith on the website of the Commission for the perusal of the parties.
13. File be consigned to record room.
Date of pronouncement: 30th September, 2024.
S.C. Kaushik Naresh Katyal
Member Judicial Member
Addl. Bench Addl. Bench
