Haryana

Panchkula

CC/283/2020

AMIT KUMAR SALHOTRA. - Complainant(s)

Versus

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

SARJU PURI

06 Sep 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,  PANCHKULA

                                                       

 

Consumer Complaint No	:	283 of 2020
Date of Institution	:	17.09.2020
Date of Decision	:	06.09.2022

 

 

Amit Kumar Salhotra, aged 38 years, son of Sh. Parveen Salhotra, resident of 33, Great South Road, Manurewa-2012, Auckland, New Zealand-2102.

2^nd Address:- House No.130, New Darshani Bagh, Manimajra, Chandigarh

 

                                                                         ….Complainant

 

Versus

M/s Konark Rajhans Estate Pvt.Ltd., SCO No.406, Sector-20, Panchkula, Haryana-134116 through its Managing Director/Authorised Signatory.

….Opposite Party

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. Sarju Puri, Advocate for the complainants.  

                        Sh. Vivek Sheoran, Advocate for OP.

                         

ORDER

(Satpal, President)

1.             The brief facts of the present complaint are that Smt. Naresh Kumari, who is mother-in-law of the complainant had applied for allotment of an Apartment in residential project, namely, “Asha Panchkula” to be developed by OP, vide application dated 04.03.2016, wherein she was allotted a 2BHK Apartment bearing no.B-1006, measuring 1110Sq.Ft., situated at Level 10 in Tower B by the Op vide allotment letter dated 27.05.2016. She opted for the construction linked payment plan and made the payment of first installment of Rs.1,76,428/- prior to 26.06.2016. An Apartment Buyer Agreement(hereinafter referred to as ABA) dated 08.08.2016 was executed between Smt.Naresh Kumari and the OP. The basic price of the Apartment was Rs. 16,28,310/- excluding the price qua EDC, IDC etc and the total payable amount was Rs.23,58,800/- as per payment plan appended with the ABA. It is further averred that the said apartment was transferred in the name of the complainant, which was duly endorsed by the OP on the Provisional Allotment letter dated 27.05.2016 and ABA as per Clause 14 of the Agreement. It is further alleged that the payment of Rs.19,50,860/- was made to the OPs qua price of the flat as reflected in the demand letter dated 13.04.2019 and thereafter, a sum of Rs.1,41,945/- was paid in the account of the OP from New Zealand on 30.05.2019 and thus, a total payment of Rs.20,92,805/- has been paid to the OPs up to 30.05.2019. It is further alleged that the Ops have neither offered nor delivered the possession of the Apartment within the stipulated period of 36 months i.e. upto 26.06.2019 and plus a grace period of 6 months from the receipt of first installment i.e. 26.12.2019 and as such have committed great deficiency in service and unfair trade practice. It is further alleged that the OP has abandoned the residential project midway without completing it. Due to the act and conduct of OP, the complainant has suffered a great deal of financial loss, mental agony and harassment; hence, the present complaint.

2.             Upon notice, OP 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 OP has never refused to hand over the possession of the unit no.B-1006 and the delay in possession has 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. So, there is no deficiency in service on the part of the OP 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-4 in evidence and closed the evidence by making a separate statement. On the other hand, the ld. counsel for the OP tendered affidavit Annexure R-1/A along with Annexure R-1 to R-3 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 OP, minutely and carefully.

5.             Admittedly, a flat bearing no.B-1006, Tower B, Type 2BHK, Level 10 measuring 1110 Sq.ft.(103.12 Sq.mtrs.approx.) was allotted in favour of Smt.Naresh Kumari as per provisional allotment letter dated 27.05.2016(Annexure C-1 and ABA(Annexure C-2), which was executed between Smt.Naresh Kumari and OP on 08.08.2016. The total price of the flat including EDC, IDC etc. was Rs. 23,58,800/-. The transfer of the flat by Smt. Naresh Kumari in favour of the complainant, which was duly endorsed by the OP on the provisional letter dated 27.05.2016(Annexure C-1) and ABA(Annexure C-2), is not disputed. The payments of sum of Rs.23,58,800/- made qua the said flat by Smt.Naresh Kumari and the complainant is also not disputed. The main grouse of the complainant is qua non delivery of the possession of the said allotted flat by the OP and thus, it has been alleged that OP has 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-2). 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.

6.             The OP has 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-2) contains Arbitration Clause, wherein it is provided that a dispute between the parties shall be settled through arbitration. The learned counsel for OP 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-2), 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 OP has failed to adhere to the time schedule qua the delivery of the possession as stipulated vide above mentioned Clause 9 of the ABA. The OP has 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 OP 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 OP to show the status of development works at the site. Therefore, the OP is 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 OP is liable to refund the deposited amount along with interest.

20.            Now, we advert to the relief clause, wherein it is found that the complainant has prayed for the refund of his deposited sum amounting to Rs.20,92,805/- alongwith interest. In view of the deficient services rendered by the OP to the complainant, he is entitled to the refund of sum of Rs.20,92,805/- 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 him. Further, the complainant is also entitled to the reimbursement of the expenses as incurred by him on account of litigation charges.

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

1. To refund a sum of Rs.20,92,805/- to the complainant along with interest @ 9% per annum w.e.f. the date of each deposit  till actual realization.
2. To pay an amount of Rs.20,000/- 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 OP 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 OP. 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:06.09.2022

 

 

 

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