STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

Date of Institution: 16.07.2020

                                                         Date of final hearing: 01.04.2024

Date of pronouncement: 25.04.2024

CONSUMER COMPLAINT NO. 98 of 2020

Sonal Gaur W/o Sh.Shubhum Gaur, R/o H.No.1586, Sector-25, Panchkula, Haryana. Email ID:sonalg23@gmail.com; Mobile No.7717350007.                                                          …..Complainant

Versus

1.      M/s Konark Rajhans Estates Pvt. Ltd., Corporate Office at ASHA Panchkula, Village Kot, Sector-14, Panchkula, Extension II, District Panchkula, Haryana 134118 through its Man aging director/Director/Chairperson/Authorised representative. Email ID:

2.      Vijay Pandey, Managing Director/HOD/CEO of M/s Konark Rajhans Estates Pvt. Ltd., R/o A404, Ideal Gagan Vihar Apartment, Ideal Homes Township, Near BBMP Office Raja Rajeshwari Nagar, Bangalore. Email ID:vijay.pandey@esselgroup.com; Mobile No.:7892153345.

3.      Manvinder Singh Alag, Director of M/s Konark Rajhans Estates Pvt. Ltd., R/o Flat No.1201, Tower 1, Logix Blossom Country, Sector 137, Noida-201301. Email ID:manvindersingh.alag@zee.esselgroup.com; Mobile No.: 8588887268.

4.      Punjab National Bank, Sector 14, Panchkula-134113 through its Manager/Authorized officer. Email ID:

CORAM:             Sh. Naresh Katyal, Judicial Member

                              Mrs. Manjula Sharma, Member

Argued by:-        Sh. S.S.Bedi, counsel for complainant.

Sh.Satyam Sharda counsel for Mr.Viren Sibal, counsel for opposite parties No.1 and 3.

None for opposite party No.4.

Opposite Party No.2 already ex parte.

                                                ORDER

NARESH KATYAL, JUDICIAL MEMBER:

          Facts are: That Opposite Parties No.1 to 3 floated and carved out  Group Housing Project to Build and construct Multi-storied Apartment Complex over their  project land under name and style of “Asha Panchkula” situated at National Highway No.73, Village Kot, Sector-14, Panchkula Extension II, Panchkula and invited applications from Prospective Buyers.   Complainant applied for 3BHK (corner +park facing) apartment for her own residential living vide application  dated 10.03.2016 and paid Rs.6100/- as application money vide receipt dated 04.03.2016.

2.      OPs No.1 to 3 issued Provisional Allotment letter dated 27.05.2016 in name of complainant for booking of Apartment No.A-1001,Tower A, Level 10, Type:3BHK. Complainant paid first installment of Rs.2,52,683/- to OPs No.1 to 3 on 24.06.2016. Apartment Buyer Agreement dated 08.08.2016 for sale consideration

 of Rs.32,65,900/- for apartment measuring 1405 sq. ft. (approx. 130.53 sq. mtrs.) was entered into.  Complainant opted for Construction Linked Payment Plan.

3.      As per Clause 5 and Clause 9 of Apartment Buyer Agreement “time is the essence” of agreement. OPs No.1 to 3 will offer possession of apartment within 36 months from date of receipt of first installment against said apartment after obtaining “Occupation Certificate” from concerned authorities. As per plea; complainant paid first installment of apartment on 24.06.2016, so stipulated date for handing over physical possession was 24.06.2019.

4.      It is pleaded that terms of agreement are completely one sided in favour of OPs No.1 to 3, being in dominating position of dictating their terms.  Complainant has no bargaining power; conditions being arbitrary and unfair to her prejudice. She obtained ‘housing loan’ of Rs.15,00,000/- from OP No.4-Bank, vide sanction letter dated 17.05.2017 and tripartite agreement dated 18.05.2017 was entered into between complainant, OPs No.1 to 3 AND OP No.4.

5.      It is pleaded that complainant  has not defaulted in making timely payment towards installment amount. OPs No.1 to 3 have received Rs.25,52,371/- i.e. almost 80% of total sale consideration,  out of which, OP No.4-Bank has disbursed Rs.15,00,000/- and complainant has paid Rs.10,52,371/-. There is material breach on the part of OPs No.1 to 3 in not constructing apartment in question and

developing project in question, within stipulated period described in Apartment Buyer Agreement.  Inspite of delay of OPs No.1 to 3, in developing the Project and handing over physical  possession of apartment; they (OPs No.1 to 3) have been harassing complainant by  imposing delay penalty/interest @ 12% against remaining due payment. It is pleaded that there is no construction, whatsoever, going on and there is no development at Project site.

6.      As per Clause 5 of Apartment Buyer Agreement dated 08.08.2016, in case of delay in handing over physical possession of apartment; OPs No.1 to 3 were liable to pay compensation to complainant @ 12% p.a. on amount deposited by her for entire period of such delay. Here,  OPs No.1 to 3 have neither compensated her, nor they are in a position to hand over physical possession of apartment till date. She is facing hardship in paying monthly accrued interest, payable to OP No.4-Bank against loan amount of Rs.15/- lacs.

7.      She sent numerous e-mails to OPs No.1 to 3 since year 2019 for redressal of her grievance, but, OPs No.1 to 3 are dilly-dallying the matter on one pretext or another and taking shield of alien and feeble excuse and such acts and omissions on their part proves deficiency of service against them.  Ops No.1 to 3 in their email dated 27.12.2019 have themselves admitted that there is delay in construction and handing over physical possession of apartment in

question, due to extremely slow real estate sale.  They sent another e-mail dated 11.06.2020 to her, by concocting false and misleading story that due to Covid-19 and Lockdown; OPs No.1 to 3 are unable to resume construction at the moment. Such apathetic behaviour of OPs No.1 to 3 shows their disregard to rights of allottees and as such they are liable for unfair trade practices.  Complainant can not wait indefinitely for development to take place at site in question or for handing over physical possession of apartment along with occupation and completion certificate.

8.      On these pleas; by asserting continuous cause of action; complaint has been filed to direct OPs No.1 to 3; (a.) Direct O.P. Nos.1 to 3 to refund amount of Rs.25,52,371/- with first charge of O.P.No.4 of Rs.15,00,000/- and second charge of complainant Rs.10,52,371/-; (b) Direct O.P.Nos.1 to 3 to pay interest @ 18% p.a. to complainant from date of respective deposits till realization of refund;  (c ) Direct O.P.Nos.1 to 3 to pay compensation of Rs.3,50,000/- to complainant for causing mental and physical harassment and for causing monetary loss & opportunity loss as well; (d) Direct O.P.Nos.1 to 3 to pay litigation charges and court fee to complainant of Rs.37,000/-. Entire text of complaint is supported by duly sworn affidavit of complainant.

9.      In defence; M/s Konark Rajhans Estate Pvt. Limited i.e. OP No.1 has asserted that: Complaint is not admissible in court of law, as

clause 30 of Builder Buyer Agreement states a binding arbitration clause.  This Commission does not have jurisdiction and all disputes shall be referred to an Arbitrator to be appointed  as per provision of Arbitration and Conciliation Act, 1996.  O.P.No.1 has never refused to hand over possession of unit, booked by complainant in project: “Asha Panchkula”. Delay in possession is due to unforeseen circumstances, that were beyond control of OP No.1, which amounts to Force Majeure. Construction could not be completed within Tentative time frame given in agreement.  Construction work is presently (as on date of filing of reply which is dated 07.09.2022 and filed on 27.10.2022) carried on, at full swing at site of Project ‘Asha Panchkula’ and OP No.1 would be offering possession of booked unit in near future.  Project where unit of complainant is located has been regulated under RERA, so proceedings before this Commission are not maintainable, by virtue of Section 79 read with section 71 of RERA Act.

10.    As per plea; completion of construction as mentioned in Agreement was subject to timely payment by complainant and other allottees of project in question, and delayed payment of installments by them have seriously jeopardized efforts of respondent (OP No.1) for completing construction of Project, with in tentative time frame given in agreement.

11.    Complainant/consumer wrongly proceeds on basis that opposite party had guaranteed/promised delivery of possession of unit within 36 months (plus 6 months) of execution of Buyer’s Agreement and that time was the essence of the contract.  There is no question of refunding any amount to complainant with any form of interest. Complainant breached her obligation to pay installments as per agreed payment schedule and defaulted to make four installments after due date i.e. towards installment (on casting of 13^th level slab) and  installment (on completion of masonry and brick work).  For last almost 1 year; construction work was at halt due to Covid-19 Pandemic.  O.P.No.1 is acting with bonafide intention.  On these pleas; dismissal of complaint has been prayed.

          Text of written version of O.P.No.1 is supported by duly sworn affidavit of Sh.Ram Gopal-its authorized signatory.

12.    OP No.4-Bank has also submitted its separate defence, by pleading that; complainant has obtained housing loan of Rs.15,00,000/- vide sanction letter dated 17.05.2017 and tripartite agreement dated 18.05.2017 with it, for disbursement of loan.  Opposite Party No.4-Bank is not at fault. Housing loan has been granted to complainant as per her eligibility, and she is not entitled to any relief against bank.

13.    Parties led their respective evidence.  Complainant has tendered her duly sworn affidavit Ex.CA towards her affirmative

statement on oath and relied upon documents Ex.C-1 to C-10 and closed her evidence through statement of her counsel dated 02.08.2023.  On  behalf of OPs No.1 to 3; its authorized Signatory Mr. Ram Gopal has tendered his duly sworn affidavit Ex.OP1 and 3A and tendered documents Ex.OP-1 to Ex.OP-3 and closed its evidence on 13.12.2023 through statement of counsel. OP No.4-Bank has  tendered duly sworn affidavit Ex.OP4A of Sh.Ravi Kumar Arora-Senior Manager and relied upon documents Ex.OP4/1 to Ex.OP4/7 and closed evidence on 04.10.2023 through statement of its counsel.

14.    We have heard learned counsel for parties at length and also perused the record of this complaint file with their assistance.

15.    Learned counsel for complainant has urged that complainant is no more interested in claiming physical possession of allotted unit and she cannot be forced on that front.  Total sum of Rs.25,52,371/- has been deposited towards this unit.  This amount comprises: loan amount of Rs.15,00,000/- disbursed by OP No.4-Bank and amount of Rs.10,52,371/- deposited by complainant.  It is contended that since tripartite agreement dated 18.05.2017 was entered into between complainant, OP Nos. 1 to 3 AND OP No.4, therefore direction be issued to OP Nos.1 to 3 to pay Rs.15,00,000/- plus interest directly to OP No.4-Punjab National Bank, Sector-14, Panchkula and pay Rs.10,52,371/- to her (complainant) along with admissible interest as per agreement. Simultaneously, as per contention, compensation

towards harassment and mental agony and towards litigation cost be awarded to complainant, as she is the sufferer.

16.    Refuting the contention;, learned counsel for OP Nos.1 to 3 has urged that allotted unit is now ready for delivering actual physical possession.  Complainant can also claim possession of unit allotted to her by paying residue/balance amount outstanding, towards agreed price of allotted unit with interest as per Buyer Agreement dated 08.08.2016. 

17.    On analyzing rival submissions; this Commission, at very outset holds that complainant is not entitled to any relief of compensation on aspect of delayed possession of allotted unit, for obvious reason that she is not willing to enter into actual physical possession of allotted unit.  Once physical possession is not to be taken by her, then her right to claim any compensation on basis of flat buyer agreement, for delayed possession, stood foreclosed. 

18.    As per the specific case set up by complainant sum of Rs.25,52,371/-, in total has been received by OP Nos.1 to 3 in relation to unit allotted to her.  Admittedly, from amount of Rs.25,52,371/-: OP No.4-Bank has disbursed Rs.15,00,000/- on the force of tripartite agreement dated 18.05.2017 (Ex.OP-4/3), towards loan amount sanctioned in favour of complainant by virtue of sanction letter dated 17.05.2017 (Ex.OP-4/5).   Rest of amount of Rs.10,52,371/- has been paid by complainant. OP No.4-Punjab

National Bank has expressly pleaded above facts through its written version and also testified through affidavit of its Branch Manager Sh.Ravi Kumar Arora by stating that Bank has granted loan of Rs.15,00,000/- to complainant.   Document Ex. OP-4/5- sanction letter dated 17.05.2017 reflects rate of interest at 8.55% on sanctioned amount of Rs.15,00,000/-. However, thereafter vide letter dated 18.07.2020-Ex.OP4/6 addressed to complainant on subject credit facilities-change in interest rate; OP No.4 has conveyed her that revised rate of interest is @6.75% from 7.95%.  Whatever may be the rate of interest claimed by OP No.4-Bank on loan amount: this Commission is unconcerned, but at the same time, it is established and proved that complainant has an outstanding liability to return the loan amount with interest, and OP No.4-Bank has created its charge so far as recovery of loan amount with interest is concerned.   There is a express clause in Tripartite Agreement Ex. OP-4/3 to the effect that the loan amount is to be paid by bank, directly to the  builder on behalf of borrower.   Since, Tripartite Agreement Ex.OP-4/3 contains signature of complainant-Sonal Gaur, signatory of M/s Konark Rajhans Estates Pvt. Ltd. and Manager of Punjab National Bank, therefore all clauses of Tripartite Agreement so far as loan amount of Rs.15,00,000/- is concerned are legally binding on them and as such enforceable.  Thus, there is every reason to believe that OP No.4-Bank has paid amount of Rs.15,00,000/- to builder viz. (OP Nos.1 to

 3) on behalf of complainant.  In any case, complainant’s case is also very specific that OP No.4-Bank has first charge for soliciting refund of Rs. 15,00,000/- along with interest.  There is no plea or evidence led on behalf of OP Nos.1 to 3 thereby proving that it has not received amount of Rs.15,00,000/- on the force of Tripartite Agreement. Like-wise there is no denial on behalf of OP Nos.1 to 3 that it has not received Rs.10,52,371/- from complainant. Meaning thereby, receipt of Rs.25,52,371/- by OP Nos.1 to 3, qua unit allotted to complainant, stood proved without doubt.

19.     Since, physical possession of the unit allotted to the complainant has not been delivered to her as per stipulated period of 42 months according to Clause 9 of Apartment Buyer’s Agreement dated 08.08.2016 Ex.C-4, and further more, it has not been delivered even during pendency of the claim petition and finally on last date of hearing when arguments were addressed; it has been pointed out by learned counsel for opposite party Nos.1 to 3 that project is question is now complete and OPs No.1 to 3 are willing to hand over possession of unit to complainant, therefore it implies that there is a delay of  more than seven years, on the part of OPs No.1 to 3 to make the allotted unit, ready for delivering its physical possession.  This Commission firmly opines that in wake of above abnormal delay on the part of OPs No.1 to 3; physical possession  of allotted unit cannot be foisted upon complainant, against her wish and wisdom,

and on sheer whims and fancies of OP Nos.1 to 3.  After all, complainant too has some legal rights available to her, to exercise her option meaningfully, by not accepting physical possession.  If she has chosen to claim refund of money deposited with OP Nos.1 to 3, then her said choice cannot be termed to be accentuated with any malafides on her part. OP Nos.1 to 3 cannot be permitted to enrich themselves at the cost of complainant by using her money for prolonged time.  Nothing can be more vulnerable for complainant, than this state of affairs.  OP Nos.1 to 3 have definitely created sordid conditions for complainant to face, because of their inept attitude, which is ex-facie deciphered.  OPs No.1 to 3 cannot be permitted to exert its dominance against the desire of complainant at every time to her peril and prejudice.

20.    This being so, this Commission allows the complaint and direct OP Nos.1 to 3 to refund Rs.15,00,000/- directly to OP No.4-Punjab National Bank with 9% interest per annum from date of Tripartite Agreement dated 18.05.2017 till its realization.  OP Nos.1 to 3 are further directed to refund Rs.10,52,371/- to complainant along with interest @ 9% per annum from date of respective deposits, towards this amount, till realization.  Two months time from the date of this order, is hereby granted to OP Nos.1 to 3 to deposit the amount with interest, in this Commission which shall, on being deposited, be released to complainant, after proper identification and verification as