District Consumer Disputes RedressalCommission ,Faridabad.
Consumer Complaint No.371/2021.
Date of Institution: 03.08.2021.
Date of Order:30.08.2022.
Sandeep Bisht son of Shri Jasod Singh Bisht, resident of House No. 1334, S.G.M.Nagar, Faridabad, District Faridabad. …….Complainant……..
Versus
1. SRS Real Estate Limited, SRS tower, 3rd floor, Near Metro Station, Mewla Maharajpur, Delhi Mathura Road, Faridabad NCR Delhi -121003. Through its authorized signatory Mr. Gourav.
2. Directorate of Town & country Planning, Haryana, Sector-6, Panchkula.
…Opposite parties……
Complaint under section-12 of Consumer Protection Act, 1986
Now amended Section 34 of Consumer protection Act 2019.
BEFORE: AmitArora……………..President
Mukesh Sharma…………Member.
PRESENT: Sh. AshishArora, counsel for the complainant.
Sh. Parveen Gupta, counsel for opposite party No.1.
Sh. DeenDayal, Assistant on behalf of opposite party No.2.
ORDER:
The facts in brief of the complaint are that opposite party No.1 had allotted a flat No. E1/A/208 in affordable group Housing Project “SRS Palm Homes” a Sector-7, Palwal to complainant vide allotment letter bearing reg. No. PH/PWL/-7/0981 dated 25thApril 2015. Details of said flat was as under:-
Town Number : E1
Type : A
Floor Number : 2nd
Flat Number : 208
The complainant got finance the said flat form Dewan Housing finance corporation Limited (DHFL) vide Loan account No. 19900041328 for a sum of Rs. 14,23,780/- by mortgaging the above said flat with DHFL. A tripartite agreement in this regard was executed between opposite party No.1, complainant and DHFL on dated 02.062015. At the time of execution of said Tripartite Agreement, opposite party No.1 had given assurance to the complainant that as and when complainant would make the full and final payment of said finance company i.e. DHFL and would provide the No dues certificate issued by DHFL to opposite party No.1 then opposite party No.1 would hand over the possession of the above said flat to the complainant with immediate effect. The complainant had made the full and final payment of the above said home loan amount i.e. Rs.14,23,780/- to DHFL and DHFL had issued No Dues Certificate to the complainant vide Ref. No.: Faridabad – Sector 19/Accounts/0041328 dated 24.12.2020 alongwith documents, which were deposited by the complainant with DHFL against the said home loan. Thereafter complainant had deposited the said No Dues certificate with opposite party No.1 and requested opposite party No.1 to handover the possession of the above said flat to him. But opposite party No.1 always delayed the matter on one pretext or the other. 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) handover the possession of the flat No. 208, 2nd floor, type A, town Number: E1.
b) pay Rs.1,00,000/- as compensation for causing mental agony and harassment .
c) pay Rs.21,000/ - as litigation expenses .
2. Opposite partyNo.1 put in appearance through counsel and filed written statement wherein Opposite partyNo.1refuted claim of the complainant and submitted that the complainant neither substantiated the actual loss/injury neither caused to him nor have alleged negligence on the part of opposite party for the alleged deficiency in service therefore the complainant was not entitled for any compensation form the opposite party. Opposite party No.1 reserve their right sot add/alter/substitute the objections as mentioned above at the time of arguments, if required. The opposite party No.1 also reserve their rights to refer to and reply upon any case laws at the time of arguments if required. There was no cause of action which may had ever accrued to the complainant at any point of time to file any complaint against the answering opposite party in the facts and circumstances of the present case inasmuch as the complainant was a successful allottee in the draw of lots and he was allotted flat No. E1/A/208, in project namely “SRS Palm Homes” Sector-7, Palwal (being developed under the Affordable Housing Policy 2013 of the government of Haryana). It was submitted that the payment plan duly accepted by the complainant was time linked and not construction linked and hence, possession had no link with the stage of construction. Further the company was bound to offer possession within a period of four years from the date of allotment letter i.e. in the year 2019. Thus, even otherwise the claim for possession and surrender on the ground of alleged non-construction or non-grant of possession was premature and the complaint was liable to be dismissed at the outset being premature. The complaint of the complainant was bad for non joinder and misjoinder of necessary parties. The complainant had filed the said complaint in the year 2020 and prior the filing of the instant complaint the above said project was cancelled by DTCP and entire administration development had been taken over by DTCP by way of statutory order. Opposite partyNo.1 denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.
3. Opposite party No.2 put in appearance through counsel and filed written statement wherein Opposite party No.3 refuted claim of the complainant and submitted that the present complaint was not maintainable against the answering opposite party as the complainant was not a consumer as defined in Section2(1)(d) of the consumer Protection Act, 1986. No agreement in whatsoever manner had been executed by the complainant with the answering opposite party. The complainant purchased the flats from opposite party No.1 on the terms and conditions mutually agreed by them and as mentioned in the Flat Buyers Agreement execute by and between the complainants and opposite party No.1. The answering opposite party was not a party to said agreement . The payment of the flat had also been made directly by the complainant to opposite party No.1. The grievance of the complainant was also against opposite party No.1. Hence, the answering opposite party had unnecessarily been impleaded as party in the instant complaint. The main grievance of the complaint was that he had booked the flat with opposite party No.1 in the project named as “Affordable Group Housing Project” situated at Sector-7, Palwal being developed by them. However, presently at site they had not started the construction activity as yet and the complainant had no hope of getting the possession of flat in near future. The complainant had prayed before this Hon’ble forum to direct opposite party No.1 to refund the amount paid by him for the purchase of the flat with interest. Opposite party No.1 submitted application for grant of license under the provisions of the Haryana Development and Regulation of Urban Areas Act, 1975 (hereinafter called as act of 1975), to develop their 10 acres land, situated in sector-7, Palwal, into Affordable group Housing colony in the department of the answering opposite
Consumer Complaint No.459/2020.
party. The case was examined by the department in accordance with the provisions of the Haryana Development & Regulations of Urban Areas Act of 1975 and as per Affordable Housing Policy dated 19.08.2013. Lincense No.70 of 2014 was granted to develop the Affordable group Housing colony, for flats in Sector-7, Tehsil &Distt. Palwal. It was also pointed out that the licensee/developer i.e. opposite party No.1 were required to comply with the terms and conditions for grant of license as agreed on the LC-IV and the bilateral agreement executed by the colonizer ad Director, Town & country Planing deptt. Haryana, Chandigarh. The licensee had not deposited the amount of 371.25 lacs against original EDC as on 17.04.2018 and also not complied with the other terms and conditions of the license despite show cause notices issued to them and grant of opportunity of personal hearing. Accordingly, license No. 70 of 2014 was cancelled vide order dated 21.08.2018. The order dated 21.08.2018 was also posted on the website of the department. The following actions had been taken in compliance of the cancellation order as mentioned above:-
i. A public notice might be issued in the newspapers, informing the general public about the cancellation of license and that the administration of this license colony had been taken over by the directorate of town & country Planning, Haryana.
ii. Senior town Planner, Faridabad had been directed to take over Administration of this licence colony on behalf of department and to put up a Board at site indicating that the administration of this licenced colony had been taken over by the department of town and country Planning.
iii) Senior Town Planner, Faridabad had also been directed to maintain the details of the account of the allottees. The allottees had been advised to deposit the balance installmentswith STP, Faridabad, who hadbeen directed to maintain the account of each and every flat holder.
iv. The license had been directed under Section 10 (A) of the act of 1975 to deposit all outstanding due son account of EDC and also to give the information of sold and unsold property within a period of 15 days so that unsold properties can be disposed off to recover the govt. dues.
v. Deputy commissioner, Palwal had been requested to recoverthe above said outstanding dues as arrears of land revenue in accordance with the order dated 21.08.2018 In order to restrict creation of further third party rights on the instant licences area, he had also been requested to ensure that no sale deed against the licenced land was executed/registered in future.
ii. The committee constitute under the Chairmanship of Administrator, HSVP, Faridabad , STP, Faridabad would be member secretary and DTP, Palwal, XWN, HSVP, Palwal would be the membersof the committee, which could take over the colony for carrying out further necessary action.
vii) Decision had been made to debar the present directors of all the companies of opposite party No.1 from grant of any further licence in the State of Haryana . Further, Enforcement Directorate, govt.of India vide order dated 08.01.2020 under second proviso of sub Section-I of Section -5 of the prevention of Money Laundering act 2002 had attached all the immovable/movable properties of SRS Group and its concern individual Legal entities. In the attachment order it had been directed that, the attached properties should not be transferred, disposed or parted with or otherwise dealt with in any manner without prior permission of directorate of enforcement. The license No. 70 of 2014 of SRS Real Estate ltd., Sec-07, Palwal was also covered under the attachment order dated 08.01.2020.
Opposite party No.3 denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.
4. The parties led evidence in support of their respective versions.
5. We have heard learned counsel for the parties and have gone through the record on the file.
6. In this case the complaint was filed by the complainant against opposite party – SRS Real Infrastructure Ltd. with the prayer to :a) handover the possession of the flat No. 208, 2nd floor, type A, town Number: E1.b) pay Rs.1,00,000/- as compensation for causing mental agony and harassment .c) pay Rs.21,000/ - as litigation expenses .
To establish his case the complainant has led in his evidence Ex.CW1/A – affidavit of Sandeep Bisht, ex.C-1 – legal notice, Ex.C-2 allotment letter, Ex.C-3 – Type-A, Ex.C-4 (Colly) – tripartite agreement,, Ex.C5 to C7 – Receipt, Ex.C-8 – letter dated 24.12.2020 regarding closure of loan account, Ex.C-9 – letter dated25.04.2015, ex.C-10 – letter dated 10.06.2015 regarding permission to mortgage the flatNo. 208, type a tower E1, affordable group Housing Projects in “SRS Palm Homes” Sector-7, Palwal., Ex.C-11 – Adhaar card.
Counsel for Opposite party No.1 has made a statement that written statement filed on behalf of opposite party No.1 be read as evidence on behalf of opposite party No.1. Accordingly, evidence on behalf of opposite party No.1 be closed vide order dated 20.07.2022.
Counsel for Opposite party No.2 has made a statement that written statement filed on behalf of opposite party No.2 be read as evidence on behalf of opposite party No.1. Accordingly, evidence on behalf of opposite party No.1 be closed vide order dated 20.07.2022.
7. It is evident from Ex.C-2 that opposite party No.1 had allotted a flat No. E1/A/208 in Affordable Group Housing Project “SRS Palm Homes” Sector-7, Palwal to complainant vide allotment letter bearing reg. No. PH/PWL/-7/0981 dated 25thApril 2015. Details of said flat was as under:-
Town Number : E1
Type : A
Floor Number : 2nd
Flat Number : 208
The complainant got finance the said flat from Dewan Housing finance corporation Limited (DHFL) vide Loan account No. 19900041328 for a sum of Rs. 14,23,780/- by mortgaging the above said flat with DHFL. A tripartite agreement in this regard was executed between opposite party No.1, complainant and DHFL on dated 02.062015 vide Ex.C-4(colly). At the time of execution of said Tripartite Agreement, opposite party No.1 had given assurance to the complainant that as and when complainant would make the full and final payment of said finance company i.e. DHFL and would provide the No dues certificate issued by DHFL to opposite party No.1 then opposite party No.1 would hand over the possession of the above said flat to the complainant with immediate effect. The complainant had made the full and final payment of the above said home loan amount i.e. Rs.14,23,780/- to DHFL and DHFL had issued No Dues Certificate to the complainant vide Ref. No.: Faridabad – Sector 19/Accounts/0041328 dated 24.12.2020 alongwith documents, which were deposited by the complainant with DHFL against the said home loan. The complainant had deposited the said No Dues certificate with opposite party No.1 and requested opposite party No.1 to handover the possession of the above said flat to him.
8. After going through the evidence led by the parties, the Commission is of the opinion that at the time of execution of said Tripartite Agreement, opposite party No.1 had given assurance to the complainant that as and when complainant would make the full and final payment of said finance company i.e. DHFL and would provide the No dues certificate issued by DHFL to opposite party No.1 then opposite party No.1 would hand over the possession of the above said flat to the complainant with immediate effect. The complainant had made the full and final payment of the above said home loan amount i.e. Rs.14,23,780/- to DHFL and DHFL had issued No Dues Certificate to the complainant vide Ref. No.: Faridabad – Sector 19/Accounts/0041328 dated 24.12.2020 alongwith documents, which were deposited by the complainant with DHFL against the said home loan. The Commission is of the opinion that the delay is on the part of the opposite parties because the possession of the flat was made to the complainant on 24.12.2020 when the complainant had made the full and final payment of the above said home loan amount i.e. Rs.14,23,780/- to DHFL and DHFL had issued No Dues Certificate to the complainant vide Ref. No.: Faridabad – Sector 19/Accounts/0041328 dated 24.12.2020 alongwith documents, The complainant has waited for more than 1 year to see the project to be completed and offer of possession of the allotted plot to him. So that unilateral clause about the cancellation by the allottee debar him from seeking refund is not binding in view of the ratio of laid down in the following cases:
1) Ram Vilas “Sharma & 23 others Vs. M/s. Gold Souk Infrastructures Private Ltd. in consumer case No. 421 of 2018 passed by the Hon’ble National Consumer Disputes Redressal Commission New Delhi referred the authority passed by the Hon’ble Supreme Court in Kolkata West International City Pvt. Ltd. Vs. DevasisRudra – II(2019) CPJ 29 (SC)……….In the circumstances, we are of the view that the orders passed by the SCDRC and by NCDRC for refund of moneys were justified.”
ii) Ireo Grace Real Tech Pvt. Ltd. Vs. Abhishek Khanna & Others Civil Appeal No. 5785 of 2019 decided on 11.01.2021 in Fortune Infrastructure & Anr. Vs. Trevor D’Lima & Ors., the 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 alongwith compensation. The complainant had been waiting for completion of the project in which allotted unit is located for more than six years. He cannot be asked to wait indefinitely to seek possession of his dream house. So, in such a situation, he is held entitled to the refund of the amount deposited with the opposite party besides interest and compensation.
9. Keeping in view of the above discussions, the Commission is of the opinion that so many cases were decided by this Commission with the same facts. Hence, the complaint is allowed. In the interest of justice, direction is given to opposite parties if possible give the possession of the disputed flat to the complainant OR refund the deposited amount to the complainant with compensation in the form of simple interest @ 6% p.a from the respective date of deposit till the payment is made together with costs of Rs.20,000/- to the complainant. Compliance of this order be made within 30 days from the date of receipt of copy of this order. Copy of this order be sent to the parties concerned free of costs. File be consigned to the record room.
Announced on: 30.08.2022 (Amit Arora)
President
District Consumer Disputes
Redressal Commission, Faridabad.
(Mukesh Sharma)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
