BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.15 of 2022
Date of Instt. 21.01.2022
Date of Decision:09.12.2022
Romit Moudgil aged 38 years s/o Davinder Moudgil permanent resident of 8 Modern Colony, Jalandhar, Punjab-144001.
..........Complainant
Versus
1. M/s Kindle Infraheights Private Limited, with registered office at Sikka House, C-60, Preet Vihar, Vikas Marg, New Delhi-110092 (CIN No.U70100DL2011PTC215638, RERA Registration No.UPRERAPRJ5596) through its Director (s).
2. Mr. Gurinder Sikka s/o Matwal Singh
3. Mr. Harvinder Sikka S/o Gurinder Sikka
4. Mr. Gurmeet Sikka s/o Gurinder Sikka
5. Mr. Akhil Gupta s/o not known
6. Mr. Puran s/o not known
7. Mr. Anil Kumar Rajvanshi s/o not known
(OP No.2 to 7 are all Directors of M/s Kindle Infraheights Private Limited c/o Sikka House, C-60, Preet Vihar, Vikas Marg, New Delhi-110092.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Dr. Harveen Bhardwaj (President)
Sh. Jaswant Singh Dhillon (Member)
Present: Sh. Nitish Arora, Adv. Counsel for the Complainant.
Sh. H. S. Sachdev, Adv. Counsel for OPs No.1 to 7. (Join Proceedings)
Order
Dr. Harveen Bhardwaj (President)
1. The instant complaint has been filed by the complainant, wherein it is alleged that the complainant is filing the present complaint against the OPs for deficiency in service for delay in delivery of possession of the flat purchased by the complainant under the Flat Allotment Agreement dated 10.05.2012. At the time of the execution of the Flat Allotment Agreement OP No.1 was represented by OPs No.2 to 4. The name of the project is also Sikka Kaamna Greens. Several such projects are undertaken by Sikka Group through different companies. Opposite Parties 2 to 7 are Directors of Opposite Party 1. As per this Flat Allotment Agreement the Complainant was allotted Flat No.1103 in Airy Tower on the 11th floor for a super area of 950 square feet in the project ‘Sikka Kaamna Greens’. The Basic Sale Price (‘BSP’) per sq. ft. super area was Rs.3244.50/- and the total sale consideration was Rs.35,01,025/-. The ‘flexi payment plan’ was agreed at the time of execution of the Flat Allotment Agreement. As per Clause 26 the Flat Allotment Agreement the Opposite Party was required to complete the development/construction of the flat within 40 months from the start of casting of the raft of the respective tower in which the allotted flat is situated. This Clause also allowed a grace period of 6 months for the Opposite Party to complete the construction. As per the ‘Demand Letter Cum Service Invoic’ dated 31/6/2012 the due date for start of raft casting and the due date for payment of corresponding installment was the same i.e. 16th August 2012. The period of 40 months from 16/08/2012 ended on 16/12/2015 and the six months grace period ended on 16/06/2016. Contrary to the stipulation made in Clause 26 the construction of the allotted flat was not completed within 46 months from the date for start of raft casting. The construction of the allotted flat has not been completed till date and consequently no offer for possession has been made for the allotted flat. The Opposite Parties have failed to abide by the terms and conditions of the Flat Allotment Agreement. The failure has been solely due to reasons attributable to the Opposite Parties. There is inordinate delay on the part of the Opposite Parties and despite repeated requests from the complainant no offer for possession has been made nor is there any likelihood of such an offer to be made. As per Clause 49 of the Flat Allotment Agreement the complainant/allotee was required to pay all installments as per the agreed payment plan. In case of any default an interest at the rate of 24% per annum was chargeable. The complainant/allottee stands in full compliance with Clause 49 of the Agreement. Pursuant to the Flat Allotment agreement and the agreed payment plan the Complainant has made a payment of INR 33,54,143/- till date. It is pertinent to mention that at the time of booking, a Tripartite Agreement was entered into between the complainant, Opposite Party and Axis Bank wherein a loan amounting to Rs 30,00,000/- was sanctioned by the Bank. However, due to the failure of the Opposite Party to supply the Flat Allotment Agreement to the Bank, the Tripartite Agreement could not be enforced. Due to the failure attributable solely to the Opposite Party, the complainant faced great hardship and was forced to take another loan from HDFC bank. It is pertinent to note that the extra expenses incurred by the complainant due to delay in paying the installment due at the time of being forced to change the bank was raised by the complainant with the Opposite Party through verbal as well as written modes of communication. The Opposite Parties turned a deaf ear to all the communications and no replies were received by the complainant in this regard. Only Demand Notices were sent by the Opposite Parties without addressing the issues raised by the complainant. In the last Demand Notice received by the complainant dated 5/3/2014, the basic charge payable as per the flexi payment plan was Rs.1,58,877/-. This amount was duly paid by the complainant through his HDFC loan account on 14/ 3/2014. The receipt dated 20/3/2014 bearing S.No.9555 was also issued to the complainant. Since the last payment on 17/3/2014, the complainant has made several visits to the office of the Opposite Parties requesting for the delivery of possession but to no avail. Even the requests for providing the complainant with his updated account statement have been ignored by the Opposite Parties. The complainant has abided by all the terms and conditions of the Flat Allotment Agreement. The complainant has made all the payments as and when raised by the Opposite Party. There has been no default in any payment on behalf of the complainant. However, in the last intimation dated 27/05/2019 received by the Complainant via email an amount of Rs.66,270/- has been shown as outstanding and payable by the complainant. The nature of this charge has not been specified in the intimation letter. The complainant has suffered mental harassment due to no offer for possession and no refund of the consideration paid by the complainant. The complainant had also taken a loan for the payments made and is still repaying the installments to the bank. The Complainant has fully performed his part of the Flat Allotment Agreement by making all payments as and when raised. It is pertinent to note that rather than delivering the possession of the agreed unit, the Opposite Party No.1 through an email dated 22.6.2020 offered the complainant an opportunity to upgrade or shifting on payment of additional money. Importantly in the email 6 towers of the project were mentioned for up-gradation or shifting and there was absolutely no mention of ‘Airy’ project in which the flat allotted to the complainant is located. The option to shift or upgrade clearly shows that the flat purchased by the complainant is not likely to be completed and offered for possession at all. Thereafter on 26.6.2020, Opposite Party No.1 had sent another email to provide an update on the project and in this email Opposite Party No.1 categorically stated that construction is only undergoing for the towers in phase 1 and for the remaining towers including Airy it is not even possible for Opposite Party No.1 to allocate resources for construction. Clearly the Opposite Parties had and continues to have no intention to complete and offer for possession the flat purchased by the complainant. The complainant was constrained to send a legal notice dated 27.1.2021 to the Opposite Party seeking reimbursement of the total amount paid by and on behalf of the complainant as consideration under the Flat Allotment Agreement along with interest @ 24 % per annum calculated from the date of payment made. The legal notice was also served through an email. Despite having received more than 90% of the consideration amount, the OP has failed to deliver possession of the flat to the complainant within the stipulated time period, without any explanation for the delay. Thus, the OP is liable for deficiency in service and as such, the present complaint has been filed with the prayer that the complaint of the complainant may be accepted and OPs be directed to pay a sum of Rs.33,54,143/- as refund of the consideration paid by the complainant under the Flat Allotment Agreement Builder Buyer Agreement dated 10.05.2012 alongwith interest @ 24% per annum calculated from the date of payment and further OPs be directed to pay a sum of Rs.15,00,000/- towards harassment, mental agony and litigation expenses.
2. Notice of the complaint was given to the OPs, but despite service all the OPs failed to appear in the Commission and ultimately all the OPs were proceeded against exparte.
3. After proceeding against exparte, the Auth. Rep. of the OPs filed an application for seeking permission to join the proceedings and placing on record written statement on behalf of the OPs and the same was allowed with the condition that the OPs will have right to argue only and will not have right to file written statement and to lead evidence.
4. In order to prove the case of the complainant, the counsel for the complainant has produced on the file his respective evidence.
5. We have heard the learned counsel for the respective parties and have also gone through the case file as well as written arguments submitted by counsel for both the parties very minutely.
6. It has been admitted by the OP in the written arguments that the complainant preferred an application for the purpose of purchasing a unit in the project i.e. Flat. The complainant was allotted the Flat No.1103, in tower ‘Airy’ having super area 950 sq. ft. for the total consideration of Rs.35,01,025/-. The complainant has proved on record the flat allotment agreement dated 10.05.2012 Ex.C-1 and the name of the project was ‘Sikka Kaamna Greens’. As per Clause 26 of the agreement, the OP was required to complete the development/construction within 40 months from the date of start of casting of the raft of the respective tower and which period may vary for +-6 months. This means that a grace period of 6 months was allowed to be given to the OP to complete the construction. The complainant has proved on record the demand letter-cum-service invoice Ex.C-2, which is dated 31.06.2012, which was the due date for the start of raft casting and due date for payment of installments. The complainant has proved on record the receipt Ex.C-3. The complainant has also proved on record the copy of Tripartite Loan Agreement Ex.C-4 and the sanctioning letter of the loan from HDFC Bank Ex.C-5. As per the clause-19 of the Flat Allotment Agreement, in-default of any payment of installment, the complainant was to pay an interest @ 24% per annum. The complainant made the payment as per the demand notice issued by the OPs vide receipt Ex.C-7. The demand notice has been proved as Ex.C-6. The complainant has alleged that though the entire payment was made by the complainant, but he received a letter Ex.C-8 vide which Rs.66,270/- were shown to be due towards the complainant without specifying the nature of the above said charges. The complainant has proved on record the emails to show that he has been visiting them number of times and approaching the OP for the delivery of the possession. He has proved on record the emails Ex.C-9, Ex.C-10 and Ex.C-13, but the OP has failed to construct the flat and provide the amenities and the possession was never handed over.
7. The contention of the OP is that the construction of the project got delayed on the account of some inevitable causes and unforeseen events, which were entirely beyond the control and scope of the OPs. It has been alleged by the OP that the OP was communicating the complainant from time to time. He has referred Clause-29 of the Allotment Agreement and has also taken the plea that due to lockdown and Covid-19, the OP No.1 could not complete the project in time and these are the inevitable circumstances. He has further raised a contention that the complainant is not consumer as he has purchased the flat for investment purposes, therefore this complaint is not maintainable, but this contention is not tenable as the OP has not filed on record any document nor has proved this fact nor has examined any witness to prove that the complainant has got allotted the flat for the investment purposes. Though, the OPs have alleged that the complainant has admitted that the flat was got booked for investment purposes, but there is no such admission in the complaint as alleged by the OP. It has been held by the Hon’ble Chandigarh State Consumer Disputes Redressal Commission, U. T., in a case titled as “Usha Rani Vs. Puma Realtors Pvt. Ltd. & Ors.” 2017 (3) CLT 566 that “Purchase of resident flat-whether complainant a consumer held, yes- unless it is proved that he or she had booked the same for commercial purpose, purchaser is a consumer No evidence to show that plot in question was purchased by complainant, by way of investment, with a view to earn profit in future complainant falls within definition of ‘consumer’.”
8. The OPs have referred clause 29 of Ex.C1, the allotment agreement, which shows that the developer shall not be held responsible for not performing any of its obligations or undertaking provided for in the agreement, if such performance is prevented, delayed or hindered by Act of God, fire, storm, flood, explosion, war, riot, terrorist acts, sabotage, inability to procure or general shortage of energy, labour, equipment, facilities, materials or supplies, strikes, lock outs, action of labour unlons or any other cause, but this clause is of no help for the OPs. There is no document on the record nor there are any such allegations in the written arguments nor there is any such defence that the OP was prevented by any above said acts and therefore the project could not be completed. The allotment was made in the year 2012. The Covid-19 and lockdown was there in the year 2020. Uptil 2020, eight years had already passed, meaning thereby that 40 months as per agreement Ex.C-1 had already expired, therefore it cannot be said that the OP was prevented by the Act of God i.e. Lockdown or Covid-19 as alleged by the OP.
9. It has been held by the Hon'ble National Commission in “Delhi Development Authority Vs. Jagdish Chander Luthra”, in F. A. No.335 of 2009, decided on 05.07.20012 that whenever service provider like DDA or any other organization like them enters into a contract to construct a house or flat for the consumer, it has to provide basic amenities of electricity and water and without providing these amenities if possession is taken by the consumer it has to be deemed as a part and not full possession as without these amenities it is difficult to enjoy or live in the house or the flat as it causes immense inconvenience, mental agony, harassment and physical discomfort. Thus, as per the law, laid down by the Hon'ble National Commission, the possession given on 29.10.2009 to the complainant is a part possession and not full possession. It has been held by the Hon’ble State Commission, in “Manoj Bagroy Vs. M/s N. H. Matcon” in consumer complaint no.429 of 2019, decided on 07.01.2020 that even if the possession is taken by the consumer, it would be a incomplete and invalid delivery of possession for the want of the amenities. It was observed by the Hon'ble State Commission in the above said case that the OP had not obtained the occupation certificate and completion certificate from the competent authorities to enable them to deliver the complete and effective possession to the allottess. Until and unless they obtain such certificate, it cannot be held that complete possession has been delivered and there is continuous cause of action in favour of the complainant till the obtaining of such certificates by the OP and the complaint filed by the complainant was held to be within limitation.
10. It has been held by Hon’ble Supreme Court in ‘Samruddhi Co-operative Housing Society Ltd. Vs. Mumbai Mahalaxmi Construction Pvt. Ltd.’ in Civil Appeal No.4000 of 2019, decided on 11.01.2022 that ‘Complaint-Barred by limitation-Held, builder’s failure to obtain occupation certificate is deficiency in service-Hence, complaint maintainable.’
11. Thus, in view of the law laid down by the Hon'ble National Commission and the Hon’ble State Commission, the possession given to the complainant without amenities and facilities was partial possession and was not effective possession and the cause of action is continuous till all the amenities are provided and completion certificate is obtained and hence the complaint is within limitation.
12. It has been held by the Hon’ble Supreme Court, in a Civil Appeal No.12238 of 2018, decided on 02.04.2019, titled as “Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan” that “Person cannot be made to wait indefinitely for possession of flat allotted to him, and is entitled to seek refund of amount paid by him alongwith compensation.”
13. After considering overall circumstances, it is established that there is clear case of deficiency in service on the part of the OPs and accordingly, the complaint of the complainant is partly allowed and the OPs are directed to refund the amount of the flat i.e. Rs.33,54,143/- alongwith interest @ 9% per annum from the date of payment till its realization. The possession if any, taken by the complainant shall be given back at the time of receiving payment/refund. Further, OPs are directed to pay a compensation of Rs.30,000/- to the complainant for causing mental tension and harassment and Rs.5,000/- as litigation expenses. The entire compliance be made within 45 days from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.
14. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Jaswant Singh Dhillon Dr. Harveen Bhardwaj
09.12.2022 Member President
