DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No.212/2022
1. Mrs. Veena Aggarwal
W/o Mr. Atul Aggarwal,
R/o M-14 B, South Extension,
Part-II, Andrewsganj, South Delhi,
Delhi-110049
2. Ms. Deepa Sureka
W/o Mr. Navneet Kumar Surekha,
R/o 8, Boungainvilla Avenue, Westened Green,
Rajkori, New Delhi, AF Rajkori,Vasant Vihar,
South West Delhi-110038
….Complainants
Versus
M/S S.S Group Private Limited
Office at:- SS House, Plot Number: -77
Sector -44, Gurugram, Haryana – 1220003
Also at:-
M/S S.S Group Private Limited
Office at: The Plaza, 4th Floor, MG Road,
Gurugram, Haryana -122002
….Opposite Party
Date of Institution : 08.08.2022
Date of Order : 12.09.2024
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Present: Adv. Manoj Dhawan for complainant.
Adv. Apoorva Saxena for OP.
ORDER
Member: Ms. Kiran Kaushal
1. Facts of the case as pleaded by the complainants are that complainants booked a unit in the project ‘The Leaf’ and made a payment of Rs.7,50,000/- to M/s S.S. Group Pvt Ltd (OP) on 22.08.2012.
2. It is stated that allured by the false and frivolous promises of timely possession and construction of high standard, complainants booked Unit No.24A at Tower No.3 on 24th Floor in the above stated project. It is stated that OP issued the allotment letter on 10.09.2012 and the Flat Buyer’s Agreement was executed between the parties on 14.09.2013.
3. It is further stated that OP had been raising demand letters on different occasions and pursuant to the demands, Complainant paid sum of Rs.26,75,440/- to OP. It is stated that OP despite receiving the above stated amount failed to justify the reason for the delay in starting the construction on site and other surrounding developments. It is stated that OP’s with malafide and dishonest intention has been enjoying the hard earned money of the complainant.
4. It is further stated that as per Clause 8.1 of the Flat Buyer’s Agreement OP was to hand over the possession of the flat within 36 months from the date of signing of the agreement i.e 14.09.2013. Since, the possession was not handed over to the complainant within the time agreed between the parties, complainants sent a unit cancellation notice on 19.4.2022 to cancel the allotted unit but no positive response was received from OP.
5. Alleging deficiency of service and unfair trade practice, complainant prays for direction to OP to refund Rs.26,75,440/- with interest @18% p.a; to pay pedente lite and future interest @18% p.a and /or to pay Rs.10,00,000/- towards compensation for mental agony and damages and Rs.5,00,000/- towards litigation expenses.
6. OP resisted the complaint stating inter alia that the project in question is fully constructed and habitable. OP has been duly granted Occupation Certificate by the competent authority and the project is occupied by almost 125 plus families, who are enjoying the amenities offered by OP.
7. OP states that the complaint is not maintainable as the complainants are not Consumers under Section 2(7) of the Consumer Protection Act, 2019. It is stated that Complainant No.1 is a resident of Andrewz Ganj, South Delhi and Complainant no.2 resides in Vasant Vihar, South West Delhi. Both the complainants have their own individual place of residence therefore, the complainants who belong to different families would not purchase a 2BHK unit for residential purposes. It is apparent on the face of record that Complainants have booked a unit for commercial purpose i.e solely for the purpose of resale.
8. It is next stated that the complainants have themselves breached their contractual obligations. Complainants have only paid 29% of the total sale consideration i.e Rs.26,75,440/- out of Rs.91,00,800/- despite repeated demands and offer of physical possession after completion of construction.
9. It is further stated that as per Clause 6 of the Flat Buyer Agreement dated 14.09.2013, time is of the essence when it comes to buyer’s duty to pay. If the buyers default in making timely payment OP is entitled to terminate the flat buyer agreement, forfeit the earnest money deposited and levy interest @18% p.a from the due date of installment. Despite the complainant having knowledge of the same they defaulted in making timely payments.
10. The last payment made by the complainants was on 07.06.2014 and thereafter despite constant reminders complainant chose not to make any further payments. Copy of the demand letters dating from 03.01.2015 till 07.10.2021 are annexed as Annexure OP-1 (Colly). OP-1 once again reminded the complainants of their contractual defaults and granted an opportunity to rectify their breach by way of cancellation notice on 27.11.2021. As the complainants did not make the payment ,the flat booked by the complainants was cancelled vide cancellation letter dated 19.04.2022.
11. In light of the fact stated above, it is prayed that the complaint be dismissed.
12. Complainant filed rejoinder to the WS of OP denying that the complainants are in the trade of sale purchase of the properties. Reliance in this regard is placed on EMAAR MGF Land Ltd and another Vs Krishan Chander Chandna FA Appeal No.873 of 2013 decided by Hon’ble National Commission.
13. It is reiterated that OPs have breached the contract by not answering the queries raised by the complainant with regard to delay in construction, rain harvesting projections, sewer treatment plant, structural efficiency and date of possession as per Clause 8.1 of the Flat Buyer Agreement.
14. Evidence and written arguments have been filed on behalf of parties. Submissions made on behalf of parties have been heard. Material placed on record is perused.
15. On perusal of the documents placed before us, it is noticed that Complainant had paid Rs.7,50,000/- at the time of booking. Receipt dated 22.08.2012 of the same has been placed on record. The allotment letter dated 10.09.2012 confirms that unit no.24A, 2BHK + PR having an approximate area of 1620 sq ft in Tower 3 of the project was allotted to the complainants. Flat Buyer’s Agreement dated 14.09.2013 was signed between the parties which show that the tentative time of handing over the possession of the flat was within period of 36 months from the date of signing of the agreement. As per the agreement the payment plan offered to the complainants was a construction linked payment plan.
16. OP’s objection that complainants are not consumers in the present case is ill founded as OP has not placed anything on record to show that the complainants had booked the unit in question for commercial purpose. By stating that complainants are residing at two different addresses therefore, they would not purchase the unit for residential purposes is merely a conjecture. This contention of OP is hence rejected.
17. OP in it’s reply states that Occupation Certificate(OC) has been received by OP and many families are residing in the project. But the date of receiving the OC has been withheld for the reasons best known to OP. It is noticed that OP had issued various demand letters, payment reminders to the complainant without mentioning the stage of the project. Since, it was a construction linked payment plan complainants were to make payments as per the stage of construction. Failure on behalf of OP to update the complainants about the progress of construction of the project, to our mind is deficiency of service.
18. OP’s contention that there was delay in possession of the project as the complainants did not make timely payments does not go well with the Commission as OP kept demanding balance payment from the complainants without informing them about the achievement of milestones in the project.
19. In Fortune Infrastructure v. Trevor D'Lima [Fortune Infrastructure v. Trevor D'Lima, (2018) 5 SCC 442 : (2018) 3 SCC (Civil) 1] , Hon’ble Supreme Court held that a person cannot be made to wait indefinitely for possession of the flat allotted to him, and is entitled to seek refund of the amount paid by him, along with compensation.
20. In light of the discussion above, OP is found to be deficient in service and indulging in unfair trade practice. Hence OP is directed to refund Rs.26,75,440/- with interest @6% p.a from the date of the amount deposited , within 03 months from the date of order, failing which OP shall pay the above stated amount @9% p.a till realization.
Parties be provided copy of the judgment as per rules. File be consigned to the record room. Order be uploaded on the website.
