Haryana

StateCommission

CC/714/2017

UMED SINGH - Complainant(s)

Versus

M/S SELENE CONSTRUCTIONS LTD. - Opp.Party(s)

TANUJ JAGLAN

27 Sep 2022

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

  Date of Instituion:10.11.2017

                Date of final hearing:27.09.2022

                                                Date of pronouncement: 08.12.2022

 

Consumer Complaint No.714 of 2017

 

IN THE MATTER OF:

 

1.      Umed Singh s/o Sh. Surat Singh, age 58 years.

2.      Amit Jaglan s/o Sh. Umed Singh, age 30 years.

Both are permanent resident of village Rajana, Post office Budha Khera, Tehsil Safidon, District Jind, Haryana.

Currently residing at Flat No.I303, Palam Apartments, Bijwasan, New Delhi-110061.

                                                                                      .….Complainants

Through counsel Mr. Deepam Raghav, Advocate

 

Versus

 

1.    M/s Selene Constructions Ltd. through its Director/Authorized person, having its office at “Indiabulls House”, Ground Floor, 448-451, Udyog Vihar, Phase-V, Gurugram-122016.

….Opposite party No.1

Through counsel Mr. Ajiteshwar Singh, Advocate

 

2.    M/s Indiabulls Housing Finance Ltd. through its Director/Authorized person, having its Corporate Office at “Indiabulls House”, 448-451, Udyog Vihar, Phase-V, Gurugram-122016.

        And registered office at M-62 & 63, First Floor, Connaught Place, New Delhi-110001.

 

                                         ….Opposite party No.2

Through counsel Mr. Jatin Sehrawat, Advocate

 

CORAM:   Mr. S.P.Sood, Judicial Member.

                   Mr. S.C. Kaushik, Member.

 

Present:-    Mr. Deepam Raghav, Advocate for the complainants.

Mr. Ajiteshwar Singh, Advocate for the Opposite Party No.1.

Mr. Jatin Sehrawat, Advocate & Mr. Mohit Garg, counsel for opposite party No.2.

 

O R D E R

S. P. SOOD, JUDICIAL MEMBER:

 

                    Facts in brief giving rise for the disposal of the present complaint are that the opposite party No.1 (OP No.1) started developing a residential housing project in Sector-103, Gurugram, Haryana namely “Centrum Park” and complainants booked a unit bearing No.62 jointly in the Block-H, saleable area of 1527 Sq. ft. on 24.12.2010. Total sale price of the abovementioned unit was Rs.52,35,655/-. However, due to the ruling of Hon’ble Supreme Court of India, OP No.1 could not have asked for the parking charges and after deducting the said parking charges total amount of the flat would have been Rs.49,85,655/-. Further it was alleged that OP No.1 cleverly changed the unit of complainants to Unit No.62 in Block-L in the booking form. Flat Buyer’s Agreement was executed between the complainants and OP No.1 on 23.12.2013 i.e. after lapse of three years. Complainants also availed loan facility for an amount of Rs.20,59,438/- from OP No.2 through a tripartite agreement dated 29.05.2014. The complainants have paid total amount of Rs.33,71,420/- to OP No.1 on different dates. Complainants had opted construction linked plan. The construction was to be completed within a period of three years (36 months + 3 months grace period) from the date of agreement. It was also alleged that OP No.1 failed to complete construction work of the said project what to talk of the delivery of possession of unit in question.  It was further alleged that OP No.2 is sister company of OP No.1 and both are in collusion with each other. Thereafter, complainants stopped the payment of installments to OP No.1 as well as OP No.2 and sought refund of the deposited amount, but, they did not consider their genuine request. Thus, there was deficiency in service on the part of the OPs.  The complainants prayed that OP No.1 be directed to reinstate the aforesaid flat unit or to refund the payment of Rs.13,11,982/- alongwith interest @ 18% from the date of payment till actual date of refund as well as to pay interest @ 18% p.a. on Rs.20,59,438/-, which was illegally used by OP No1 for a period of two and half years from the date of payment onwards till date and to pay Rs.6,60,048/- alongwith interest @ 18% p.a. which the complainants had paid to OP No.2 as EMI, to direct OP No.1 to pay an amount of Rs.15,00,000/- on account of escalation in the basic sale price of the flat in the course of time in case of refund of amount and to direct OP No.1  to pay an amount of Rs.5,00,000/- towards compensation on account of mental and physical harassment and to grant costs of litigation.

2.                Notice of the complaint was issued against the Ops, upon which they appeared and filed their separate written statements.  OP No.1 in its written statement submitted that it launched a housing project in Sector-103, Gurugram and complainants booked a unit bearing No.L-062, 6^th Floor, Bolock-7 on 24.12.2010 having approx area of 1135 sq. ft. in its project. Total sale consideration of the unit was Rs.43,93,800/-. The complainants had opted construction linked plan and Buyer’s Agreement dated 23.12.2013 also came into existence between the parties. It was further submitted that a typographical/inadvertent error had occurred at the time of marking in the proposed details in respect of the said unit as under the column ‘building block’ the letter ‘H’ was erroneously entered, though the same was immediately corrected and the correct block number was entered as ‘L’ and this fact was evinced from the then tentative apartment/unit number, which was executed correctly. Thereafter, OP No.1 had sent a copy of allotment agreement to the complainants for its due execution and a copy of which was required to be sent back to the former, but complainants failed to do so, despite issuance of several reminders. It was further submitted that the complainants have paid only a sum of Rs.13,11,982/- and thereafter they were unable to generate adequate funds to purchase the said unit for which they obtained loan facility of Rs.20,59,433/- from OP No.2 and tripartite agreement dated 29.05.2014 was also executed amongst the parties. It was further submitted that complainants were unable to maintain financial discipline towards the loan facility obtained by them from OP No.2 as they continued default in paying of the monthly installments. Accordingly, the allotment of unit stood cancelled owing to instances of default on the part of complainants and the loan amount availed was duly returned by OP No.1 to OP No.2 as per terms of tripartite agreement.

3.                OP No.1 further submitted that as per clause-21 of the Buyer’s Agreement construction of the said unit was to be completed within a period of three years from the execution of Buyer’s Agreement with  three months of grace period and as per clause-22 of said agreement, in case OP No.1 failed to deliver the possession of unit in prescribed period then, It would be liable to pay a sum of Rs.5/- per square foot per month of the super area, but the aforesaid clauses of agreement were premised upon the complainants paying the amounts due as per terms and conditions. Other allegations made in the complaint were denied. Thus there being no deficiency in service on the part of the OP No.1, complaint must fail.  

4.                On the other hand, OP No.2 in its written statement submitted that OP No.2 is only a financial institution and provided loan facility of Rs.20,59,438/- to the complainants as they were inclined to purchase unit bearing No.062, Tower-L, measuring 1488 sq. ft. in the housing project of OP No.1, namely “Centrum Park”, Sector-103, Gurugram. Tripartite agreement dated 29.05.2014 was also executed amongst the parties. Further it was submitted that OP No.2 has no control over the acts and conducts of OP No.1/builder, which is a separate entity. It is further submitted that complainants themselves are defaulters in making payment of loan amount availed by them for purchase of aforesaid unit in question. Thus, there was no deficiency in service on the part of OP No.2.

5.                When the complaint was posted for recording evidence of the parties, learned counsel for complainants has tendered into evidence affidavit of Mr. Amit Jaglan son of Shri Umed Singh as Ex.CA, vide which he has reiterated all the averments taken in the complaint alongwith documents Ex.C-1 to Ex.C-16 and another documents Mark-A and closed the evidence on behalf of complainants.

6.                On the other hand, learned counsel for OP No.1 has tendered into evidence affidavit of Shri Manmohan Singh, Authorized Representative of OP No.1 as Ex.OP-1 alongwith other documents Ex.OP-1/1 to Ex.OP-1/7 and closed the evidence on behalf of OP No.1.

7.                Similarly, learned counsel for OP No.2 has also tendered

into evidence affidavit of Shri Sanjeev Kumar, Regional Manager as Ex.R-2/A alongwith documents Ex.R-2/1 to Ex.R-2/3 and closed the evidence on behalf of OP No.2.

8.                The arguments have been advanced by Mr.Deepam Raghav, the learned counsel for the complainants, Mr. Ajiteshwar Singh, learned counsel for OP No.1 and Mr. Jatin Sehrawat, learned counsel for OP No.2.  With their kind assistance entire record including documentary evidence as well as whatever the evidence had been led during the proceedings of the complaint had also been properly perused and examined.

9.                As per the basic averment raised in the complaint and the reply filed thereto including the contentions put forth by the learned counsel for the complainants, the foremost question which requires adjudication by this Commission is as to whether the present complainants are entitled to get refund of the amount which they had already deposited, alongwith the interest? 

10.              While unfolding the arguments, it has been argued by Mr. Deepam Raghav, learned counsel for the complainants that as far as the executing Flat Buyer Agreement Ex.C-5 is concerned, it is not in dispute. It is also not in dispute that complainants have paid an amount of Rs.13,11,982/- (Receipts Ex. C-2 & Ex.C-3 (colly) to the OP No.1. It is also not in dispute that the total sale price of the apartment was Rs.49,85,655/-.  Loan facility of Rs.20,59,438/- had also been availed by complainants from OP No.2.  As per the Flat Buyer Agreement and the terms and conditions incorporated therein including date of delivery of the possession of the said apartment, the possession complete in all respect was to be delivered to the complainants by the OP No.1 within 39 months (36 months + 3 months grace period) subject to some reservations. The period within which, the possession of the unit was to be delivered had already expired despite depositing the total amount of Rs.33,71,420/- (Rs.1311,982/- + Rs.20,59,438/-).  In these circumstances, the complainants had no other option, but, to seek the refund of the amount alongwith interest, which they had already paid. 

11.              On the other hand, it has been argued by Mr. Ajiteshwar Singh, learned counsel for the OP No.1 that the complainants themselves approached OP No.1 for booking a residential unit bearing No.L-062, 6^th Floor, Bolock-7, having approx area of 1135 sq. ft. in its project and total sale consideration of the unit was agreed to be Rs.43,93,800/-. He further argued that complainants had opted the construction linked plan and Flat Buyer’s Agreement dated 23.12.2013 was also executed between the parties, but due to typographical mistake at the time of marking in the proposed details of said unit as under the column ‘building block’ the letter ‘H’ was wrongly entered. However, the same was immediately corrected as ‘L’ which was also executed correctly. Continuing further he argued that the complainants have paid only a sum of Rs.13,11,982/- and complainants were unable to generate adequate funds to purchase the said unit for which they had also obtained loan facility of Rs.20,59,438/- from OP No.2 and tripartite agreement dated 29.05.2014 was also executed. However, complainants continued default in paying the monthly installments. It was further argued that the allotment of unit stood cancelled owing to instances of frequent defaults on the part of complainants and the loan amount availed was also duly returned by OP No.1 to OP No.2 as per terms of tripartite agreement. It was further argued that in case OP No.1 failed to deliver the possession of unit in prescribed period then, It had bound itself to pay a sum of Rs.5/- per square foot per month of the super area, but here in this case the complainants themselves have failed to comply with the terms and conditions of the Flat Buyer’s Agreement. This is how answering OP No.1 have not committed any breach of agreement. Therefore, complainants have no right to demand the refund as builder has not refused to complete the development work and offer possession of flat to the complainant.    The answering OP No.1 will offer the possession of the unit to the complainant after completion of development work. Thus, the complainants are not entitled for the refund as prayed for.

12.              Mr. Jatin Sehrawat, learned counsel for OP No.2 has also argued that answering OP is a financial institution, which provided loan facility of Rs.20,59,438/-  to the complainants as they were willing to purchase the abovesaid unit in the project of OP No.1. He further argued that the tripartite agreement dated 29.05.2014. He further argued that as per the conditions of said agreement, in case, the borrower will fail to repay the loan amount, then the matter/dispute will be between the borrower and builder. Moreover, in case the builder will fail to deliver the possession of unit in question to the borrower, it will be the borrower who shall be liable to pay the IHFL regularly each month the EMI as laid down in the loan agreement. He further argued that the complainants were continuously defaulter in repayment of loan installments and as per the abovementioned tripartite agreement, OP No.1 after cancelling the allotment of said unit in question, cleared the loan amount, which was obtained by complainants from OP No.2 for the purchase of said unit in question. Thus, there was no deficiency in service on the part of OP No.2 and prayed for dismissal of the complaint qua OP No.2.

13.              In view of the above submission and after careful perusal of the entire record, it is not in dispute that upon floating a project by the builder, a residential unit was purchased by the complainants for total cost of Rs.49,85,655/- against which an amount of Rs.13,11,982/-  was paid. It is not in dispute that loan facility of Rs.20,59,438/- was also availed by the complainants from OP No.2 and this amount was also paid to OP No.1. Tripartite Agreement dated 29.05.2014 was also executed among complainants and both the Ops. Flat Buyer’s Agreement dated 23.12.2013 is also not disputed, which is executed between the complainants and OP No.1. As per said agreement, the possession of the apartment was to be delivered within period of 39 months (36 months + 3 months grace period) complete subject to some reservation. To the utter surprise of this Commission and is very pity that inspite of the fact that period of more than 6 years has expired, the possession of the apartment has not been delivered by OP No.1.  As such, there was a clear breach of terms and conditions of the Flat Buyer’s Agreement on behalf of the OP No.1. It is the normal trend of the developers that  developer would collect their hard earned money  from  the  individuals and would invest the funds in other projects as a result thereof the project  for which the investors have invested their hard earned money is not completed.  Resultantly, the delivery of possession or completion of the project was delayed as in the present case.  When the project is not complete as such, this Commission is of the considered opinion that there is deficiency in service of OP No.1 and thus, complainants are well within their legal rights to get the refund of the amount of Rs.13,11,982/- (Rs. Thirteen lacs eleven thousand nine hundred and eighty two only)   which they had already deposited with the OP No.1.  Even otherwise also there is a strong element of the physical and mental agony caused to the complainant for investing a huge amount and still deprived of not being put into possession of the same and under these constrained circumstances, he had to knock the door of this Commission even for seeking refund of the amount.  In such like cases, the Commission had to deal with the developers with severe hands who are misusing the funds of the individuals. As far as the question of deficiency in service on the part of OP No.2 is concern, it is pertinent to mention here that OP No.2 is only a financial institution who provided loan facility to the complainants against security. However, as far as remaining amount of Rs.20,59,438/- is concerned, which the complainants demanded to refund that amount was obtained by complainants from OP No.2 as loan facility for purchase of unit in question. OP No.2 is a financial institution and it is also established that OP No.1 cleared that loan amount after cancelling the allotment of said unit as the complainants were continued defaulters in repayment of installments. As such, the question is answered in the affirmative.

14.              In the light of the above observation and discussion, there are sufficient grounds to accept the complaint and while accepting the complaint, the OP No.1 is directed to refund of the amount of Rs.13,11,982/-  (Rs. Thirteen lacs eleven thousand nine hundred and eighty two only) to the complainants alongwith interest @ 6%  per annum from  the date of respective deposits till realization.  In case, there is a breach in making payment within the stipulated period of 45 days, in that eventuality, the complainants would further be entitled to get the interest @ 9% per annum, for the defaulting period. The complainants are also entitled of Rs.50,000/- (Fifty Thousand Only) for compensation of mental and physical agony.  In addition, the complainant is also entitled of Rs.25,000/- (Twenty Five Thousand Only) as litigation charges. It is also made clear that for non-compliance, the provisions enshrined under section 72 of the C.P.Act  would also be attractable.

15.              A copy of this order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 2019. This order be uploaded forthwith on the website of the Commission for the perusal of the parties.

13.              File be consigned to record room alongwith a copy of this order.

 

December 8^th, 2022         S.C Kaushik,                            S.P.Sood

                                       Member                                     Judicial Member                                           Addl. Bench                              Addl. Bench          

R.K