BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.207 of 2022
Date of Instt. 22.06.2022
Date of Decision: 05.04.2024
1. Shri Joseph Anand Vaz son of late Shri Cyril Vas
2. Smt. Neena Vaz wife of Shri Joseph Anand Vaz,
Both residents of Dr. B. R. Ambedkar National Institute of Technology Campus, A-5, G. T. Road, By-Pass, Jalandhar.
..........Complainants
Versus
1. M/s Nitishree Infrastructure Ltd., (formerly known as Shourya Towers Pvt. Ltd.) Regd. Office:78-B, Sector D-2, Group II, Kondli Gharoli, Mayur Vihar, Phase-III, Delhi 110096 Through its Authorized Representative. Also at: Shop No.108, 1st Floor, Varadhman Mayur Market, Mayur Vihar, Phase-III, Delhi Through its Authorized Representative.
2. Nitishree Infrastructure Ltd., Marketing Office B-111, Sector 5, G. B. Nagar, Noida 201301 UP Through its Director Shri Anil Jain. Also at: Shop No.108, 1st Floor, Varadhman Mayur Market, Mayur Vihar, Phase-III, Delhi Through its Director Shri Anil Jain.
3. Nitishree Infrastructure Ltd., Marketing Office B-111, Sector 5, G. B. Nagar, Noida 201301 UP Through its Director Shri Ankur Jain. Also at: Shop No.108, 1st Floor, Varadhman Mayur Market, Mayur Vihar, Phase-III, Delhi Through its Director Shri Ankur Jain.
4. M/s Nitishree Infrastructure Ltd., (formerly known as Shourya Towers Pvt. Ltd.) Shourya Green, Surya Enclave, Amritsar By- Pass Road, near Trinity College, Jalandhar through its Project Manager.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Dr. Harveen Bhardwaj (President)
Smt. Jyotsna (Member)
Sh. Jaswant Singh Dhillon (Member)
Present: Sh. M. K. Jain, Adv. Counsel for the Complainants.
Sh. Pranav Handa, Adv. Counsel for the OP No.1.
OPs No.2, 3 & 4 exparte.
Order
Dr. Harveen Bhardwaj (President)
1. The instant complaint has been filed by the complainants, wherein it is alleged that the complainants are at present staying in a Employer Provided accommodation on rent and with a hope of buying dream house as they want to settle in this part of India have booked a Flat G2-104 (1545 sq.ft) on the first floor at Shourya Greens in April, 2010 by paying an amount of Rs.50,000.00 vide Receipt No.13963 dated 23.3.2010 and Rs.4,60,000/- vide cheque No.950423 dated 9.4.2010. A Flat Buyer Agreement dated 13.5.2010 was duly signed and executed between the opposite parties and the complainants. As per allotment letter dated 28.4.2010, the total consideration of the said Flat was given to the tune of Rs.33,75,000.00 in respect of Flat No.104, Tower G-2. However, the OPs, have also agreed to charge Preferential Location charges to the tune of Rs.1,70,000.00, EEC and FFC charges to the tune of Rs 54,075.00, IFMS charges to the tune of Rs. 23,175.00 and power back up to the tune of Rs.25,000.00. In this manner, a total sum of Rs.36,47,250.00 were payable to Nitishree. The complainants had already paid a sum of Rs.31,50,903.00 to the OPs till 01.06.2012. The above said payments were made by the complainants to the OPs, from their own savings to the tune of Rs.6,75,000/- and a housing loan from HDFC Ltd. to the tune of Rs.24,75,903/-. Further the loan was insured by making an additional premium of Rs.1,62,013/-. According to Flat Buyer Agreement, the construction of the Flat was supposed to be completed in all respects and to be delivered to the complainants till December, 2011. The construction of the Flat has not been completed till today nor the possession has been delivered despite so many requests, letters and email. There was a penalty clause No. 9 of Flat Buyer Agreement of Rs. 5.00 per sq.ft. per month in case of any delay in delivery of possession. But no amount of any penalty was ever paid. Till today, the construction of Tower G- 2 including the Flat allotted to the complainants has not been completed nor any requirements have been fulfilled for registration, No Objection Certificate and N.D.Cs. The complainants were made to sign a Memorandum in January, 2021 but even then, the possession or No Objection Certificate has not been issued and the same was never acted upon. The OPs, have violated the terms and conditions of Flat Buyer Agreement. The OPs, have neither fulfilled the conditions of the Flat Buyers Agreement nor the latest Memorandum of Settlement. Due to delay on the part of the OPs, the complainants have not been able to enjoy the property for the last 11 years. The complainants have obtained a loan of Rs.26,37,916.00 from HDFC Ltd. out of which Rs.24,75,903.00 was paid to the OPs, Rs.1,62,013.00 was for insurance of the home loan and the complainants have further paid an amount of Rs.6,75,000/- from their own pockets. Thus, the complainants have been burdened with heavy interest paid to HDFC Ltd. The complainants have paid a sum of Rs.39,95,013/- to HDFC Ltd. on account of installments and interest and still a sum of Rs.12,35,084/- is payable, besides these losses, the complainants have also been deprived of House Rent Facility from their employers to the tune of Rs.39,636/- per month i.e. 18% of the Salary since December, 2011. The loss on HRA and interest comes to Rs.22,42,05,595/- so far. The OPs have failed to deliver the possession of the Flat for such a long period while ignoring the countless requests during site visits, phone calls, remainders and correspondence etc. The OPs have retained the amount paid by the complainants without complying to the mutually agreed terms and non timely delivery of the possession of the Flat. The OPs have used the amount paid by the complainants for commercial purposes. So they are liable to pay the interest and other damages detailed above. The OPs are arbitrarily holding the payments made by the complainants, depriving them of their rights without any intimation about progress on construction since stopping work in 2012. The said amount is hard earned money of the complainants. The complainants have been running from pillar to post, earlier for possession of the Flat but to no avail. All efforts to convince and persuade the OPs went in vain. The act and conduct of the OPs is clear cut unfair trade practice, negligence and deficiency in service and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to hand over and deliver the possession of the Flat, complete in all respects, as per specifications laid down in the Flat Buyers Agreement with completion/occupation certificate, alongwith all the N.D.Cs/N.O.Cs etc. alongwith interest at the rate of 12% per annum of the amount enjoyed by the OPs and paid by the complainants till date within one month and further OPs be directed to pay a sum of Rs.10,00,000/- on account of negligent and deficient services, causing mental agony, harassment, loss of money and time or in the alternative, refund the amount of Rs.31,50,903/- alongwith interest at the rate of 18% per annum from the date of respective deposits till final realization. Further, OPs be directed to pay litigation expenses of Rs.35,000/-.
2. Notice of the complaint was given to the OPs, but despite service OPs No.2 to 4 failed to appear and ultimately, OPs No.2 to 4 were proceeded against exparte, whereas OP No.1 appeared through its counsel and filed written reply, whereby contested the complaint by taking preliminary objections that the present complaint filed by the complainant is bad in law and not maintainable under consumer court. The same dispute between the complainant and respondent no.1 is of civil nature, thus the same is maintainable under Specific Relief Act 1963 because the said complaint is for the specific flat no G2-104 measuring 1545 Sq ft. & complainant have another legal remedy to avail under RERA Act, 2016. It is further averred that the brief main facts of the case are totally different from the averments taken by the complainant. As, the respondent no.1 have never received Full payment from complainant. It is further averred that the said agreement was never made by Respondent no.1 directly where the main fact of the case is hide by complainant that the said buyer agreement was signed through third party i.e. M/s Novena Builders and developers Pvt. Ltd. The complainant has nowhere in the said complaint has referred about the said builders arbitrarily and intentionally and malafidely not impleaded Novena Builders as a party. It is further averred that the complainants are bound to the clause 7 (i) for the payment of interest @24 percent per annum for the outstanding amount as per buyer agreement. On merits, the factum with regard to booking a Flat No.G2-104, First Floor at Shourya Greens is admitted, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.
3. Rejoinder to the written statement filed by the complainant, whereby reasserted the entire facts as narrated in the complaint and denied the allegations raised in the written statement.
4. In order to prove their respective versions, both the parties have produced on the file their respective evidence.
5. We have heard the arguments from learned counsel for the respective parties and have also gone through the case file as well as written arguments submitted by counsel for the complainant and OP No.1 very minutely.
6. It is not disputed that the Flat No.G2-104, First Floor at Shourya Greens, Jalandhar was allotted to the complainant, vide Allotment Letter dated 28.04.2010 for a sum of Rs.33,75,000/-. The Flat Buyer Agreement dated 13.05.2010 was executed between the complainants and the OPs, which is evident from Ex.C-3. The complainants paid a sum of Rs.50,000/- vide receipt Ex.C-1 and Rs.4,60,000/- vide receipt Ex.C-2. The complainants also paid Rs.31,50,903/- to the OPs, vide receipts Ex.C-5 to Ex.C-8. Copy of statement of account regarding payment and interest is Ex.C-9 and Ex.C-10. The grievance of the complainant is that according to Flat Buyer Agreement, the construction of the Flat was supposed to be completed in all respects and possession was to be delivered to the complainants till December, 2011, but till today the possession has not been delivered despite so may request, letters and email nor any requirements have been fulfilled for registration, NOC and NDCs.
7. The contention of the OP is that the present complaint is not maintainable under Consumer Protection Act. The dispute between the parties is of Civil Nature, but this contention is not tenable as there was a Flat Buyer Agreement executed between the complainants and the OPs and the allotment letter was issued by the OPs to the complainants, from where it is clear that a Flat G2-104 was allotted to the complainants and the complainants paid/deposited the amount of the Flat to the OPs, thus the complainants become the consumer and the complaint is maintainable before this Commission.
8. The contention of the OP is that the present complaint is not maintainable as the OP has not received any payment. The real beneficiary is M/s Novena Builders, but M/s Novena Builders have not been made party. His further contention is that the OPs entered into joint venture agreement with M/s Novena Builders on 12.01.2010 and now M/s Novena Builders have cheated the OPs. The entire construction work and completion was to be done by M/s Novena Builders. Since, they have failed to comply with the agreement, therefore, FIR has also been registered on M/s Novena Builders. The complainant is liable to claim from M/s Novena Builders only. He has denied the payment also. The OP has alleged the agreement between the OP and the M/s Novena Builders, but in the written statement, though he has alleged about M/s Novena Builders, but no document has been filed by the OP alongwith written statement to show that the M/s Novena Builders have taken any amount from the complainant. Perusal of the receipts nowhere finds mentioned the name of the M/s Novena Builders nor it is mentioned anywhere that they have taken the money from the complainant. Even the agreement between the complainant and the OP Ex.C-3, nowhere shows that M/s Novena Builders has anything to do with the complainant. Even there is no reference of M/s Novena Builders in the agreement Ex.C-3, nor there is mention of the fact that the payment has been made or is to be made to M/s Novena Builders. The schedule of the payment annexed with the agreement also nowhere shows that the payment is to be received by the M/s Novena Builders. Thus, all the letters, agreement and receipts bear the stamp and signatures on behalf of the OP. If M/s Novena Builders have cheated the OPs, then the matter is interse between M/s Novena Builders and the OPs. If the payment has been made to M/s Novena Builders by the OPs, then again the matter to be sort out is between M/s Novena Builders and the OPs. Even the FIR alleged by the OPs is not having any effect on the present case. The joint venture alleged by the complainant is also between the OP and the M/s Novena Builders. Even the agreement with M/s Novena Builders, produced by the OP during arguments, nowhere shows that there are signatures of the complainant on this document anywhere. There is no privity of contract between the complainant and M/s Novena Builders, therefore, M/s Novena Builders is not a necessary party. It was the OP, who has agreed to give the possession of the Flat after taking the money as per agreement.
9. The OPs have failed to deliver the possession of the Flat despite letters, representations and emails, which is evident from Ex.C25, Ex.C-28 and Ex.C-29. Copy of Legal notice dated 16.03.2022 is Ex.C11. The OPs have not produced on record any document from where it can be ascertained that the OPs have fulfilled the conditions of the Flat Buyers Agreement. 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 as such there is continuous cause of action in favour of the complainant till the obtaining of such certificates by the OP. Even during the pendency of this complaint, the OP has not brought on the file any cogent and convincing evidence, whereby the OP can establish that they had handed over the possession of the flat complete in all respects. The OP has not produced the occupation and completion certificate duly issued by the competent authority showing that the basic amenities have been duly provided at the site. Even otherwise, Completion Certificate, as envisaged under section 14 of the Punjab Apartment and Property Regulation Act, 1995 (in Short "PAPRA") is the most essential document, which should have been produced with regard the matter in issue but the same has not been produced by the OP to prove that Flat in question as well as basic amenities in the entire complex have been completed in all respects.
10. In such circumstances, the complainant cannot be made to wait for delivery of possession for an indefinite period and his demand for refund of the amount deposited by him was justified on account of failure of OP to complete the project/flat within the stipulated time period. We are supported by the law laid down by the Hon'ble State Commission, Punjab Chandigarh in First Appeal No.87 of 2020 titled as ‘Jalandhar Improvement Trust versus Mahabir Prasad’ decided on 10.08.2020, wherein it has been held that ‘complainant cannot be made to wait for delivery of possession for an indefinite period and his demand for refund of the amount deposited by him was justified on account of failure of OP to complete the project/fiat within the stipulated time period Even no completion certificate or occupancy certificate has been produced on record by OP to complete the project/flat within the stipulated time period’. Thus, the complainant is entitled for the relief.
11. In view of the above detailed discussion, the complaint of the complainant is partly allowed and OPs are directed to hand over and deliver the possession of the Flat, complete in all respects, as per specifications laid down in the Flat Buyers Agreement with completion/occupation certificate, alongwith all the N.D.Cs/N.O.Cs etc. within 45 days from the date of receipt of the copy of order Or in the alternative the OPs are directed to refund the amount deposited/paid by the complainants to the OP with interest @ 9% per annum from the date of respective deposits till realization. Further, OPs are directed to pay a compensation of Rs.30,000/- for causing mental tension and harassment to the complainant and Rs.5000/- 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.
12. 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 Jyotsna Dr. Harveen Bhardwaj
05.04.2024 Member Member President
