District Consumer Disputes Redressal Commission ,Faridabad.
Consumer Complaint No.260/2019.
Date of Institution: 27.05.2019.
Date of Order: 01.08.2022.
1. Shri Pradeep Choudhary S/o Shri Ram Chander Choudhary.
2. Smt. Shiuli Parui Choudhary W/o Shri Pradeep Choudhary.
Both R/o H.No. 162, Block-E, Sector-11, Faridabad.
…….Complainants……..
Versus
M/s. SLF Anushree Apartment (AOP) having principal place of business M-95, Lower Ground floor, Grater Kailwah – II, New Delhi – 110 048. Through its Managing Director.
Also at: Indraprastha Apartment-I, Sector-30-33, Faridabad, Haryana- 121001.
…Opposite party……
Complaint under section-12 of Consumer Protection Act, 1986
Now amended Section 34 of Consumer protection Act 2019.
BEFORE: Amit Arora……………..President
Mukesh Sharma…………Member.
PRESENT: Sh. S.S.Bhati, counsel for the Complainant.
Sh. Tarun Singla, counsel for opposite party.
ORDER:
The facts in brief of the complaint are that the complainants booked a flat for their self use and the opposite party allotted flat No. B, having Super Built-Up area of 1109 sq. feet situated on Ist floor, of Tower No. PIB of Group Housing Colony being developed under License No. 61 of 2007 dated 09.2007 issued by Director Town and Country Planning Haryana alongwith proportionate undivided interest in and underneath the Tower/Building for the complainant vide builder buyer agreement dated 30.04.2017 with promise to handover actual, physical possession of fully developed aforesaid flat within 6 months from allotment. The total cost of the said flat was Rs.33,12,000/- and the complainant paid sum of Rs.7,14,378/- till date through cheque bearing NO. 087375 dated 9.6.2017 for sum of Rs.17,115/-, cheque No. 087376 dated 30.04.2017 for sum of Rs.3,16,938/- and cheque NO. 087375 for sum of Rs.3,80,325/- all drawn on IDBI Bank Ltd. The complainants requested to the opposite party to handover the possession of the said flat but the accused flatly refused for the same as the project was not complete till date and it look impossible for the opposite party to the complete the said project. Vide builder buyer agreement dated 20.04.2017 executed between the opposite party and the complainants, the opposite party had committed, assured ad promised to handover the actual physical possession of the said flats to them in 6 months from the date of booking/agreement, the opposite party failed to comply the terms and conditions of the said agreement. Despite numerous requests and personal visits made by the complainants to the office of opposite party but the opposite party had failed to handover the possession of the said flats till date. The complainant sent legal notice dated 2.5.2019 to the opposite party but all in vain. The aforesaid act of opposite party amounts to deficiency of service and hence the complaint. The complainant has prayed for directions to the opposite party to:
a) refund sum of Rs.7,14,378/- alongwith interest @ 18% p.a. from the date of receiving the said amount till realization of the said amount to the complainant.
b) pay Rs.10,00,000/- as compensation for causing mental agony and harassment .
c) pay Rs. 65,,000 /-as litigation expenses.
2. Opposite party put in appearance through counsel and filed written statement wherein Opposite party refuted claim of the complainant and submitted that the Director, Town and Country Planning, Haryana (i.e. DTCP) granted License No. 61 of 2007 dated 09.02.2007 in the name of Anushree Home Developers Private Limited C/o Swatantra Land & Finance Private Limited for developing a Group Housing Colony on the above mentioned lad measuring 10.925 acres. Due to road network plan of Government, land of aforesaid Group Housing colony had been divided into three parts, Site 1, Site 2 and Site 3. Vide letter bearing Memo No.ZP-221/699 dated 02.09.2008, DTCP, approved the building plans for aforesaid Group Housing Colony and revised building plans vide memo NO. ZP-236/SD(DK)/2015/15656 dated 21.08.2015. As per the approved Building Plans of aforesaid Group Housing Colony, three Towers being Towers NO. P-1, P-2 and P-3 containing 247 flats with total FAR of 2,75,342.47 sq. ft could be constructed on Site-2(i.e. land measuring about 1.73 acre forming part of Mustttil NO.1, Killa No. 24/2, Musttil No.5, Killa NO.4,7, 8,13, 14 situated within the revenue estate of Village Martjapur, District Faridabad, Haryana) of aforesaid Group Housing Colony. A society by the name of “The Paradise Welfare Society was registered with District Registrar of Firms & Societies Faridabad, Haryana under provisions of Haryana Registration and Regulation of Societies Act, 2012 having registered office at House No.1, Block 7, Sector-31, Spring Field Colony, Faridabad. TPWS decided to enter into an agreement with AHDPL and SLFPL for the purposes of construction of flats for members of TPWS. On complainant’s application, TPWS admitted them as their members vide Membership No. 185. Vide agreement dated 12.01.2015, AHDPL and SLFPL agreed to sell 247 flats of Towers P-1, P-2 and P-3 to be constructed at Site-2 of aforesaid Group Housing Colony to the members of TPWS. As per aforesaid agreement dated 12.01.2015, the consideration charged by AHDPL and SLFPL did not include the cost of construction/development and all responsibility of construction/development at site was that of TPWS. It was submitted that there was no relationship of seller and buyer (service provider and servicer receiver) between the complainants and opposite party. It was submitted that TPWS did not have entity distinct from its members. Complainants being a member of TPWS were consenting party to all acts and decisions of TPWS. Therefore, complainants had no cause of action against opposite party and instant complaint was liable to be dismissed. TPWS could make only 96 members. TPWS failed to construct any of the aforesaid tower/buildings. In these circumstances TPWS in the month of March 2019 requested opposite party to take up and complete the remaining construction and provide possession of built-up flats to aforesaid 96 members of TPWS. Accordingly a Re-Stated Agreement dated 27.03.2019 was executed between AHDPL, SLFPL and TPWS whereby handed over the possession of Site-2 to opposite party on as-is-where was basis for completing the remaining construction and handing over 96 built up flats to the concerned member of TPWS on or before 31st march 2022. Hence time for completion of construction and handing over of flats by opposite party to complainants was 31st March 2022. The complainants were not consumers qua the opposite party as they alongwith their other co-members were themselves constructing the flats. Nw the relationship between parties hereto were to be governed in accordance with Re-State Agreement dated 27.03.2019.Opposite parties denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.
3. The parties led evidence in support of their respective versions.
4. We have heard learned counsel for the parties and have gone through the record on the file.
5. In this case the complaint was filed by the complainant against opposite party – M/s. SLF Anushree Apartment with the prayer to : a) refund sum of Rs.7,14,378/- alongwith interest @ 18% p.a. from the date of receiving the said amount till realization of the said amount to the complainant. b) pay Rs.10,00,000/- as compensation for causing mental agony and harassment . c) pay Rs. 65,,000 /-as litigation expenses.
To establish his case the complainant has led in his evidence, Ex. AW1/A – affidavit of Shri Pradeep Chaudhary, legal notice, returned letter, Builder Buyer Agreement, Adhaar card, Pan card, Allotment letter,, Site-2 Layout Plan,, application form,, receipt No.SLF-AHDPL/TPWS/2165, SLF-AHDPL/TPWS/1282, SLF-AHDPL/TPWS/1295.
On the other hand counsel for the opposite party strongly agitated and
opposed. As per the evidence of the opposite party,, Ex.RW1/A – affidavit of Ajay Madan son of late Shri V.K.Madan Resident of C-6/51, SDA, New Delhi, Ex..R-1 – Resolution, Ex.R-2 – not readable, Agreement, Ex.R-4 – Board of resolution,Ex.R-5 - letter No. ZP/236/SD (DK)/2015/15656, Ex.R-6 – Application Form, Ex.R-7 - Agreement between M/s. SLF Anushree Apartments (AOP) and Pradeep Choudhary, Ex.R-8 – Certificate dated 07.03.2020, Ex.R-9 – Certificate dated 13.02.2021, Ex.R-10 – RE-Stated Agreement dated 27.03.2019, Ex.R-11 – Physical handing over possession , Ex.R-12 – letter dated 28.05.2020, Ex.R-13 – photographs, Ex.R-14 - letter dated 02.04.2019.
6. During the course of arguments, Shri S.S.Bhati, counsel for the complainant has made a statement that “as per clause No. 2.6, I am ready to take the refund of the deposited amount alongwith interest from the respective date of deposit.”
As per Builder Buyer Agreement in clause of 2.6 is as under:
“Timely payment by Buyer of instlalments towards consideration of said flat as per aforesaid schedule of payment (i.e. Annexure “A”) is the essence of this transaciton. In case Buyer fails to pay any of the installments in time, buyer shall be liable to pay interest at the rate of eighteen percent per annum on defaulted amount for delayed period. However, in case any of the installments remained unpaid for a period of more than three months, developer shall be entitled to terminate this agreement and to refund the amoutn received from buyer after deducting 20% (twenty percent) of aforesaid consideraiton. However, no refund on account of Service tax would be made to buyer.”
7. After going through the evidence led by the parties as well as the statement of the counsel for the complainant, the Commission is of the opinion that the complaint is allowed. Opposite party is directed to process the claim of the complainant within 30 days from the date
of receipt of the copy of order and pay the due amount to the complainant along with interest @ 6% p.a. from the date of filing of complaint till its realization. The opposite party is also directed to pay Rs.2200/- as compensation on account of mental tension, agony and harassment alongwith Rs.2200/- as litigation expenses to the complainant. Copy of this order be given to the parties concerned free of costs and file be consigned to record room.
Announced on: 01.08.2022 (Amit Arora)
President
District Consumer Disputes
Redressal Commission, Faridabad.
(Mukesh Sharma)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
