Haryana

Panchkula

CC/301/2020

SHIVANGI GUPTA. - Complainant(s)

Versus

M/S KONARK RAJHANS ESTATE PVT.LTD. - Opp.Party(s)

VANSH MALHOTRA.

30 Sep 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,  PANCHKULA

                                                       

 

Consumer Complaint No	:	301 of 2020
Date of Institution	:	30.09.2020
Date of Decision	:	30.09.2022

 

 

1.     Shivangi Gupta w/o Sh.Ashish Gupta R/o B-lv/2125 B, Raghunath Puri, Jagadhri Road(Near Adarsh Filling Station), Yamuna Nagar, Haryana-135001.

2.     Ashish Gupta, son of Sh. Virender K. Gutpa, R/o B-lv/2125 B, Raghunath Puri, Jagadhri Road(Near Adarsh Filling Station), Yamunan Nagar, Haryana-135001.                   

 

    ….Complainants

 

Versus

1.     M/s Konark Rajhans Estate Pvt.Ltd Village Kot, Sector-14, Panchkula, Extension II, Haryana, 134118 through its Manager, Authorised Signatory/Officer Incharge/Director Sales and Marketing.

2.     Essel Reality, Corporate Office, B-10, Lawrence Road Industrial Area, Delhi-110035, through its Manager, Authorised Signatory/ Officer Incharge/Director Sales and Marketing.

3.     ICICI Bank Limited,  ICICI Bank Towers, Bandra-Kurla Complex, Mumbai-400051, through its Manager, Sales and Marketing.

4.     ICICI Bank, B-15/76, West Bhatia Nagar, Jagadhari Road, Yamuna Nagar, Haryana-135001.

….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. Vansh Malhotra, Advocate for the complainants.  

                        Sh. Vivek Sheoran, Advocate for OPs No.1 & 2.

                         

ORDER

(Satpal, President)

1.             The brief facts of the present complaint are that the complainants had applied vide application dated 13.03.2016 for allotment of an apartment in residential project, namely, “Asha Panchkula” to be developed by OPs, wherein  they were allotted a 3BHK Apartment no.A-0501(Corner Unit+Park facing Unit) measuring 130.53 Sq.mtrs.Approx. vide provisional allotment letter dated 27.05.2016. An Apartment Buyers Agreement(hereinafter referred to as ABA) was executed between the complainants and the OPs on 10.08.2016. The total price of the apartment including IDC, EDC etc. was Rs. 32,65,900/-. It is alleged that the complainants and the Ops No.1 & 2 had entered into a Tripartite Agreement with ICICI Bank, which had sanctioned the loan of Rs. 17,67,000/- on 30.10.2017. It is alleged that a total payment of Rs.25,41,693/- was  made to OPs qua the price of the said apartment vide several receipts. It is further alleged that the complainants had paid an amount of Rs.18,25,721/- to OPs at their own level and Rs.7,15,971/- was paid through ICICI Bank Ltd. and thus, a total amount of Rs.25,41,692/- out of Rs.32,65,900/- qua the price of the apartment was paid to the Ops, which is more than 80% of the total amount.  It is alleged that as per Clause 9 of the ABA, the OP No.1 had to hand over possession of the Apartment within a period of 36 months from the receipt of the first installment i.e. 23.06.2019  and further grace period of 6 months subject to force majeure circumstances i.e. on or before 23.12.2019 i.e.(42 months) from 23.06.2016 but the OPs No.1 & 2 had failed to deliver the possession of the apartment to the complainant and as such have committed great deficiency in service and unfair trade practice. Due to the act and conduct of OPs No.1 & 2, the complainant has suffered a great deal of financial loss, mental agony and harassment; hence, the present complaint.

2.             Upon notice, OPs No.1 & 2 appeared through counsel and filed written statement raising preliminary objections qua its maintainability. It is alleged that as per Clause 30 of the ABA, if a dispute arises between the parties, the same was liable to be referred to Arbitrator. It is further averred that the consumer commission lacks jurisdiction in view of Section 79 read with Section 71 of the Real Estate (Regulation and Development) Act, 2016(hereinafter referred to as the RERA) wherein RERA alone has the jurisdiction to decide the controversy. It is further alleged that the OPs have never refused to hand over the possession of the unit no.A-0501 and the delay in possession had occurred due to force majeure conditions as well as unforeseen circumstances, which were totally beyond the control of OP. It is further averred that the construction work is presently going on at full swing at the site and the possession of the booked unit would be delivered in near future. On merits it is alleged that the provision dealing with the delivery of possession as contained in Clause 9 of the ABA was not the essence of the contract and thus, no question of refund of any amount to the complainant has arisen and more so with interest.  It is alleged that the delay in offering possession, if any, is due to Force Majeure conditions and that Real Estate Sector has been adversely affected from various factors like implementation of Demonetization, GST, Ban by NGT due to Pollution and Covid 19 pandemic etc.  So, there is no deficiency in service on the part of the OPs No.1 & 2 and prayed for dismissal of the present complaint.

3.             The learned counsel for the complainant has tendered affidavit as Annexure C/A along with documents Annexure C-1 to C-43 in evidence and closed the evidence by making a separate statement. On the other hand, the ld. counsel for the OPs No.1 & 2 tendered affidavit Annexure R-A alongwith Annexure R-1 to R-2 and closed the evidence.

4.             We have heard the learned counsels for the parties and gone through the entire record available on file including the written arguments filed by the learned counsel for complainant as well as OPs No.1 & 2, minutely and carefully.

5.             Admittedly, a flat bearing no.A-0501, measuring 130.53 Sq.mtrs.Approx. was allotted in favour of the complainants as per Provisional Allotment Letter(Annexure C-2) and ABA(Annexure C-6), which was executed between the complainants and OPs No.1 & 2 on 10.08.2016. The price of the apartment was settled as Rs.32,65,900/- including IDC, EDC etc. The payment of sum of Rs.25,41,692/- to the Ops made qua the said apartment by the complainants on several dates is not disputed. The main grouse of the complainants  is qua non delivery of the possession of the said allotted apartment to them by the OPs and thus, it has been alleged that OPs No.1 & 2 have failed to adhere to the time schedule within which the possession was to be delivered. During arguments, the learned counsel for the complainant reiterating the averments made in the complaint has contended that OP had failed to deliver the possession of the flat in question to the complainant within the stipulated period and thus, has violated the condition contained in Clause 9 of the ABA(Annexure C-6). The learned counsel has prayed for acceptance of the complaint by directing the OP to refund the deposited amount along with compensation as prayed for in the complaint. Reliance has been placed on the following case laws:

i.      Ireo Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna(2021) 2 SCC 241

ii.       Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan in appeal      no.12238 of 2018

iii.       Kolkata West  International City Pvt. Ltd. Vs. Devasis Rudra & Others, (2019) 2          RCR(Civil) 696.

iv.      Ram Vilas Sharma & Others Vs. M/s Gold Souk Infrastructures Private Limited and Another

v.       Dipika Panda Vs. Puravankara Limited, in consumer case no.1866 of 2018

vi.      Emaar MGF Land Limited & Anr. Vs. Amit Puri(2015) 2 CPJ 568.

6.             The OPs No.1 & 2 have contested the complaint by raising preliminary objections as well as on merits in its written statement. The first objection is that the ABA(Annexure C-6) contains Arbitration Clause, wherein it is provided that a dispute between the parties shall be settled through arbitration. The learned counsel for OPs contended that the complaint is not maintainable in view of the provision contained in Clause 30 of the said Agreement, which provides for settling the dispute through arbitration.

7.             This objection is rejected in view of the provisions contained in Section 100 of the Consumer Protection Act, wherein it is provided that the remedy under the CP Act available to a consumer is in addition to any other remedy available under law and not in derogation of the remedies available to an aggrieved consumer. In this regard, we may place reliance upon the law laid down by the Hon’ble Punjab and Haryana High Court in CWP No.22121 of 2014 decided on 21.09.2015 in case titled as Puma Realtors Pvt. Ltd.(M/s) Vs. Union of India,which is fully applicable to the facts of the present case. We may further rely upon the law laid down by the Hon’ble Apex Court in the case titled as Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs. M. Lalitha (Dead) Through Lrs and others, (2004) 1 SCC 305 wherein it has been held that remedy under Consumer Protection Act is in addition to and not in derogation of the remedies available to aggrieved person.

8.             The next objection is that the complaint is not maintainable before the Commission as the housing complex comprising the Flat in question is duly registered under Regulation and Development (hereinafter referred to as the RERA)Act, 2016 and by virtue of the provisions  contained in Section 79 read with Section 71 of RERA, the complaint can be entertained and adjudicated  by RERA alone. 

9.             This objection is also rejected in view of the ratio of law laid down by the Hon’ble Apex Court in case titled as IREO Grace Realtech Pvt.Ltd. Vs. Abhsihek  Khanna & Others decided on 11.01.2021 vide its full bench reported in (2021) AIR(SC) Civil 1291.

10.            On merits, it is contended that the provision contained in Clause 9 of the ABA qua the delivery of the possession of the Apartment is/was not the essence of the contract. The learned counsel for the OP reiterating the averments made in the written statement has placed reliance upon the following case law:-

i.      Chand Rani Vs. Kamal Rani 1993-1-SCC-519.

ii.      Govind Prasad Chaturvedi Vs. Hari Dutt Shastri 1977-2-SCC-539.

iii.     Gomathinayagam Pillai Vs. Palaniswami Nadar 1967-1-SCR-227.

 

11.            Further it is contended that the delay in the delivery of the possession of the Flat has occurred due to force majeure condition as well as unforeseen circumstances which were totally beyond the control of the OP. It is contended that the construction could not be completed within the tentative time frame as given in the Agreement as various factors beyond control of Ops came into play, including economic meltdown, sluggishness in the real estate sectors, defaults committed by the allottees in making timely payments of the installments. 

                Concluding the arguments, it is submitted that the construction work at site is being carried out at full swing and the possession of Flat would be delivered very shortly.

12.            The main grouse of the complainant qua the non delivery of the possession within stipulated period is based on the provision contained in Clause 9 of the ABA(Annexure C-6), which, for the sake of convenience and clarity, is reproduced as under:-

 “Schedule for Possession of the said Apartment

The company based on the present plans and estimates contemplates to offer possession of the said Apartment to the Apartment allottee within a period of 36 months from the receipt of first installment against allotment of the Said Apartment plus a grace  period of 6 months, unless there shall be delay or failure due to Force Majeure  conditions and due to failure of Apartment Allottees(s) to pay in time the total Sales Price and other charges and dues/payments mentioned in this Agreement  or any failure  on the part of the Apartment Allottee(s) to abide by all or any of the terms and conditions of this Agreement.

The Allottee(s) agrees that time is essence with respect to payment of Total Consideration and other charges, deposits and amounts payable by the Allottee(s) as per this Agreement  and/or as demanded by the Company from time to time and also to perform/observe all the other obligations of the Allottee(s) under this Agreement. The company is not under any obligation to send any reminders for the payments to be made by the Allottees(s) as per the schedule of payments and for the payments to be made as per demand by the, company or other obligations to be performed by the Allottee(s).

13.            Undisputedly, the OPs have failed to adhere to the time schedule qua the delivery of the possession as stipulated vide above mentioned Clause 9 of the ABA. The OPs have admitted that the progress of the completion of the development works at site has got delayed.

14.            Now, the question arises as to whether the time schedule as given vide said Clause 9 of the Agreement qua the delivery of the possession of the flat was the essence of the contract.

15.            The Hon’ble National Commission in consumer case no.84 of 2017 Dr.Shriram Trivedi Vs. National Building Construction Corporation Ltd. & Anr. decided on 20.09.2019 has declined the plea of builder with regard to the force majeure conditions as well as to the plea that the time is not essence of the contract. The relevant para no.10 of the above said judgment, for the sake of convenience and clarity, is reproduced as under:-

 “We are of the considered view that the reasons given by NBCC that the delay is due to Force Majeure conditions cannot be accepted. The submissions by Learned counsel appearing for NBCC that the compensation, if any, shall be payable only after  four years  plus valid  extension  due to Force Majeure reasons from the date of allotment  is untenable in the light of the fact  that we have already held that the reasons cannot be construed to be Force Majeure. The contention of the learned counsel appearing for NBCC that “Time is not Essence of the Contract” also cannot be sustained in the light of the view taken by the Hon’ble Supreme Court in Banglore Development Authority Vs. Syndicate Bank (2007) 6 SCC 711 in which case the Hon’ble Supreme Court has laid down that even if the time is not essence of the contract ‘substantial reasons’ ought to be given by the Developer for any delay in the delivery of possession. In the instant case, at the cost of repetition, no such cogent reasons were given”.

16.            Apart from above, 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 No.8 of the above said judgment, for the sake of convenience and clarity, 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”.

17.            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.

 

18.            The plea taken by the OPs No.1 & 2 that the force majeure conditions prevented them to complete the construction work at site as per schedule is not tenable as the plea is neither corroborated nor substantiated by any documentary evidence. It is well settled legal proposition that mere bald assertions, which are not corroborated and substantiated by any adequate, cogent and credible evidence, do not carry any evidentiary value. Further, nothing has been placed on record by OPs No.1 & 2 to show the status of development works at the site. Therefore, the OPs No.1 & 2 are not entitled to draw any kind of benefit on the basis of alleged force majeure conditions.

19.            In view of the aforementioned factual and legal position, we conclude that OPs No.1 & 2 are liable to refund the deposited amount along with interest.

20.            Now, we advert to the relief clause, wherein it is found that the complainants have prayed for the refund of the deposited sum amounting to Rs.25,41,693/- along with interest. During arguments, the learned counsel for the complainants has stated that the complainants are ready to forego their right to the claim of Rs.5,725/- as charged from them by the Bank qua the processing charging. In view of the deficient services rendered by the OPs to the complainants, they are entitled to the refund of sum of Rs.25,41,693/- as deposited qua the price of the flat along with interest @9% P.M.(simple interest) from each deposit. Apart from it, the complainant is also entitled to adequate compensation on account of mental agony, harassment suffered by them. Further, the complainants are also entitled to the reimbursement of the expenses as incurred by them on account of litigation charges.

21.            At this stage, we deem it expedient to clarify that the first charge on the apartment in question is of the OPs No.3 & 4 i.e. Banks, who has financed the said apartment by virtue of Tripartite agreement. Therefore, the OPs No.1 & 2 have, firstly, to clear the loan amount, which is payable to Ops No.3 & 4 i.e. Bank and the remaining amount after making the payment to OPs No.3 & 4 shall be paid to the complainants. Since the complainants had expressed no grievances against the banks i.e. OPs no.3 & 4, so, notice was not issued to them, though the same were impleaded as OPs No.3 & 4 in the complaint at the time of its filing.  

22.            As a sequel to above discussion, we partly allow the present complaint with the following directions:-

1. The Ops No.1 & 2 are directed to refund a total sum of Rs. 25,41,693/- along with interest @ 9% per annum w.e.f. the date of each deposit till actual realization. Out of the said directed/awarded amount, the OPs No.1 & 2 have, firstly, to clear the loan amount, which is payable to Ops No.3 & 4 i.e. Bank and the remaining amount after making the payment to OPs No.3 & 4 shall be paid to the complainants. After clearance of loan amount qua the apartment in question, the OPs No.3 & 4 i.e. Bank shall release all the titled deed papers etc., as deposited by the complainants, to them alongwith its No Dues Certificate.
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.5,500/- as cost of litigation charges.

 

22.            The OPs No.1 & 2 shall comply with the order within a period of 45 days from the date of communication of copy of this order 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 & 2. 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:30.09.2022

 

 

 

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.

 

                                          Satpal,                             

                                        President