Haryana

Karnal

CC/303/2021

Tripta Sharma - Complainant(s)

Versus

M/s Sushma Buildtech Limited - Opp.Party(s)

Vinod Kumar Gupta

29 Apr 2024

ORDER

tBEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

                                                        Complaint No.303 of 2021

                                                        Date of instt.02.07.2021

                                                        Date of Decision:29.04.2024

 

Tripta Sharma wife of Shri Ajay Sharma Kumar Sharma and daughter of Shri Chaman Lal Pandit, resident of house no.496, Sector-13, Extension, Urban Estate, Karnal.

                                                                        …….Complainant.

                                              Versus

 

1. M/s Sushma Buildtech Limited, through its authorized signatory B-107, 1^st floor, Business Complex at Elante Mall, Industrial Area, Phase-1, Chandigarh.

 

2. Binder Pal Mittal, Managing Director, M/s Sushma Buildtech Limited, resident of house no.36, Sector-8-A, Chandigarh.

 

3. Bharat Mittal, whole time Director, M/s Sushma Builtech Limited, resident of house no.36, sector 36, Sector9-A, Chandigarh.

 

4. Prateek Mittal, Executive Director, M/s Sushma Buidtech Limited, B-107, 1^st floor, Business Complex at Elante Mall, Industrial Area, Phase-1, Chandigarh.

 

 

                                                                …..Opposite Parties.

 

Complaint under Section 35 of Consumer Protection Act, 2019.

 

Before   Shri Jaswant Singh……President.     

              Shri Vineet Kaushik…….Member

              Dr.  Suman Singh…..Member

 

 Argued by: Shri V.K. Gupta, counsel for the complainant.

                    Shri Prikshit Bhargav counsel for the OPs.

               

                     (Jaswant Singh, President )

ORDER:   

                

                The complainant has filed the present complaint under Section 35 of the Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that OP no.1 is a real estate developer company registered under the Companies Act interalia in the business of designing building and marketing residential and commercial complexes/ plots having its registered office at SCO no.172-173, 1^st floor, sector-9C, Chandigarh, now B-107, 1^st floor, Business Complex at Elante Mall, Phase-1, Chandigarh. OPs no.2 to 4 are the main managing persons of Op no.1. OP no.1 through its Directors and office bearers intending itself, as the company Developing Integrated Residential Group Housing Colony, in the revenue estate of village Bishangarh and Bishanpura, M.C. Zirakpur, District S.A.S. Nagar (Mohali) (Pb), under the name and style of Sushma Chandigarh Grande. The Directors and other persons made the wide spread advertisement for the said Group Housing Colony, asserting that the colony so developed, would be one of the best colony, within the area of Punjab and the staff of the OP no.1 allured the complainant to purchase the apartment in the said society. Officer bearers of OP no.1 promised to the complainant that the actual, peaceful and physical possession of the premises would be handed over in the month of March, 2017. Complainant on the allurement of the employees/ agents of OP no.1/company was interested to purchase an Apartment, measuring 1650 sq. ft. from OP no.1.  OP no.1 earlier allotted to the complainant, an apartment bearing no.C-403, 4^th floor and on the persuasion of the office bearers of the OP no.1, it was later on changed to apartment bearing no.C-1003, 10^th floor in C-Tower, for which on 20.01.2015 an Apartment Buyer’s Agreement was executed between the complainant and OP no.1 showing the consideration of the same, amounting to Rs.57,90,000/-. As per terms and conditions of the Apartment Buyer’s Agreement, the developer shall endeavor to give possession of the said unit to the Buyer, within a period of 42 months from the date of the execution of this agreement. Besides, the developer can take six months grace period for completing and handing over the said unit to the Buyer. It is pertinent to mention here that the complainant had paid an amount of Rs.6,00,000/- to the OPs, i.e. on 13.04.2014, 20.04.2014, 28.06.2014, but the receipt for the same has been issued in the month of September, 2014 and Rs.1,00,000/- on 04.12.2014 but the OPs intentionally and deliberately executed the Apartment Buyer’s Agreement on 20.01.2015. The complainant paid the installments/payment of the Apartment and has paid Rs.56,69,183/- to the OP no.1. As per the terms and conditions of the Apartment Buyer’s Agreement dated 20.01.2015, if there is delay or default in making payment of the installments, by the Buyer, then the Buyer shall pay to the developer interest, which shall be charged @ 24% per annum, from the due date of installments on monthly compounded basis. The OPs had charged a sum of Rs.1,08,817/- as interest, or delayed payment of the installments, which were to be paid at the time of handing over the possession. OP no.1 issued a letter dated 20.03.2017 to the complainant, to make payment of Rs.46,320/- on the ground of payment, being over due, which as a matter of fact, is a TDs, which has already been deposited on 21.07.2016 by the State Bank of India, in PAN no.AAJCS8156M of OP no.1 on behalf of complainant and this amount is being shown as outstanding in the account books of OP no.1. Complainant approached the office bearers of the OPs and on 04.08.2018, complainant visited the office of OPs where there was no construction work going on the spot, apparently no remote possibility to handover the actual, peaceful and physical possession of the Apartment by July, 2019 was there, what to talk of July, 2018. Thereafter, the complainant visited the spot on 11.09.2020 but no construction work was going on at the spot. The OPs were required to handover the actual, peaceful and physical possession of the Apartment by July, 2018 but failed to do so due to reason that OPs had not started construction of the site in question.

2.             It is further alleged that as per clause 7.4 of the Apartment Buyer’s Agreement dated 20.01.2015, i.e. to pay the interest @ 24% per annum on the amount paid by the complainant to OPs and issued two cheques amounting to Rs.70,258/- each towards the part payment, in August, 2020 but thereafter OPs failed to make payment, as compensation to the complainant for non-delivery of the apartment i.e. non-handing over the possession of the allotted apartment to the complainant/Buyer by due time. On 26.10.2020, OPs sent an agreement to complainant and asked the complainant to refund the same after signing, but complainant refused to sign. OPs issued letters dated 04.02.2021 and 22.02.2021 for making a demand of outstanding amount of Rs.3,73,455/- despite the fact that the allotted apartment was not complete and the OPs were not in a position to handover the actual, peaceful and physical possession of the same to the complainant. It is pertinent to mention here that the fresh Apartment Buyer’s Agreement was mischievously drafted by the Ops, to curtail the legal rights of complainant. The complainant was debarred from filing any complaint or from taking any action in the competent Court of law or with any Commission of the jurisdiction. It is further alleged that OPs vide letter dated 24.05.2021 cancelled the allotment of unit no.1003, on 10^th floor, at residential complex of Sushma Chandigarh Grande, M.C.Zirakpur, District SAS Nagar, forfeiting an amount of Rs.13,82,470/- out of the total paid amount of Rs.56,69,183/- by the complainant. The letter of cancellation of allotment issued by the OPs is illegal, null and void and not binding on the rights of the complainant.  It is further alleged that OPs cannot penalize the complainant for their default of non-handing over the possession. The complainant has suffered a huge loss, due to non-handing over the possession by the OPs to the complainant as the complainant had availed housing loan, from her employer and employer of the complainant has been insisting to handover the Conveyance Deed/Sale Deed of the allotted apartment but the complainant failed to do so as the OPs have neither handed over the actual, peaceful and physical possession of the Apartment to the complainant nor have executed the sale deed/conveyance deed, qua the same. Besides this, complainant had to give collateral security in the form of FDRs to her employer, making monetary loss to her. The complainant was interested in shifting to the allotted apartment but due to delay in possession had to bear great loss as the complainant had to pay rent for accommodation. The OPs would have executed the conveyance deed/sale deed of the flat, before 2019, the GST would not have been charged over the same and the complainant was not liable to pay any GST but complainant has been forced to pay the GST. It is further alleged that complainant had paid the substantial amount out of the total amount of Rs.57,90,000/- and had paid Rs.56,69,183/- out of the total sale price of the Apartment but OPs have mischievously and intentionally passed an order for cancellation of the allotment of the Apartment.  Hence, complainant filed the present complaint seeking direction to the OPs to  handover the actual physical possession of the flat/apartment bearing no.C-1003 on 10^th floor in Tower-C of Sushma Chandigarh Grande, complete in all respects to the complainant after accepting the outstanding amount. The cancellation of allotment, vide letter dated 24.05.2021, to be  treated as illegal, null and void and also to execute the Conveyance Deed/Sale Deed in favour of the complainant and in case OPs fail to handover the physical possession of the flat in question, in that eventuality, OPs be directed to refund the amount of Rs.56,69,183/- with interest @ 24% per annum to the complainant since the day of payment of each installment, till the day of realization. To direct the Ops to pay Rs.2,00,000/- to the complainant for mental agony, tension and unnecessary harassment and to pay Rs.55000/- as litigation expenses.

3.             On notice, OPs appeared and filed its written version raising preliminary objections with regard to maintainability; jurisdiction and concealment of true and material facts. On merits, it is pleaded that it is denied that the possession of the unit was to be delivered within a time frame of 48 months from the date of execution of the Buyer’s Agreement on 20.01.2015. The basic sale price of the unit was Rs.57,90,000/- plus other charges such as preferential location charges, floor premium charges, power backup charges, club membership charges and any other charges as applicable were to be charged extra. The Buyer’s Agreement got executed on 20.01.2015 after having the complainant making a payment on an earlier occasion to increase the time period of handing over the possession of the said unit. Complainant had applied for unit C-403 on 4^th floor vide their application for allotment dated 13.04.2014 but lateron desired to change the unit to C-1003 on 10^th  floor only after  Show Cause Notice for cancellation of allotment of the unit was served upon her on 24.12.2014. It is further pleaded that complainant remained in default of payment till that time since making an application for allotment of the unit. The Buyer’s Agreement was executed on 20.01.2015(wrongly typed as 20.01.2021) upon the complainant’s request for change of unit. The complainant has paid an amount of Rs.56,69,183/- against the aid unit. An amount of Rs.12,65,051/- was still due from the complainant as on 21.06.2021.

4.            It is further pleaded that the allotment of the complainant’s unit no.C-1003 already stands cancelled vide final intimation of cancellation of allotment letter dated 24.05.2021. The complainant has remained in default of payment to the tune of Rs.5,27,887/- as on 24.05.2021 due to which the complainant’s allotment has been cancelled. The complainant was duly served a payment Demand letter dated 11.01.2021, reminder letter dated 14.02.2021, reminder letter dated 22.02.2021, Termination letter dated 10.03.2021, show cause notice dated 24.03.2021 and cancellation notice dated 13.04.2021, prior to final intimation of Cancellation of Allotment letter dated 24.05.2021. The allotment of complainant’s unit therefore stands cancelled and the complainant is only entitled to a refund of Rs.42,86,713/- without any interest and after forfeiture as per the terms and conditions of the Buyer’s Agreement dated 20.01.2015. The complainant is entitled to a refund of the said amount after surrender of the original executed agreement and papers with the OPs and the said amount is refundable without any interest to the complainant. It is further pleaded that this Commission has no jurisdiction to entertain the present complaint. The project is located in Zirakpur, District Mohali, Punjab and the agreement having been executed at Chandigarh, thus this Commission has no jurisdiction over the present complaint. It is further pleaded that the project Sushma Chandigarh Grande being a RERA registered project, the present complainant is not maintainable before this commission. There is no deficiency in service and unfair trade practice on the part of the OPs. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

5.             Learned counsel for the complainant has tendered into evidence affidavit of complainant Ex.CW1/A, copy of allotment letter Ex.C1, copy of Buyer’s Agreement Ex.C2, copy of payment due Ex.C3, copy of agreement dated 26.10.2020 Ex.C4, copies of statements of account Ex.C5 to Ex.C9, copy of letter dated 23.06.2021 Ex.C10, TDS traces Ex.C11, copy of form-16A  Ex.C12, copy of demand letter dated 17.01.2019 Ex.C13, copy of intimation and cancellation letter dated 24.05.2021 Ex.C14, copy of passport of complainant Ex.C15, copy of RC Ex.C16, copy of PAN card Ex.C17, copy of letter dated 27.03.2021 Ex.C18, email Ex.C19, copy of aadhar card Ex.C20 and closed the evidence on 19.09.2022 by suffering separate statement.

6.             On the other hand, learned counsel for the OPs has tendered into evidence affidavit of Bhupinder Singh Bedi Ex.OPW1/A, copy of application dated 13.04.2014 Ex.OP1, copy of allotment letter dated 09.01.2015 Ex.OP2, copy of Buyer Agreement dated 20.01.2015 Ex.OP3, copy of Show Cause Notice dated 24.12.2014 Ex.OP4, copy of affidavit dated 19.01.2015 Ex.OP5, copy of account statement dated 21.06.2021 Ex.OP6, copy of payment demand letter dated 11.01.2021 Ex.OP7,  copy of reminders dated 04.02.2021 and 22.02.2021 Ex.OP8 and Ex.OP9, copy of termination letter dated 10.03.2021 Ex.OP10, copy of Show Cause letter dated 24.04.2021 Ex.OP11, copy of cancellation notice dated 13.04.2021 Ex.OP12, copy of final intimation of cancellation of allotment dated 24.05.2021 Ex.OP13, copy of certificate dated 23.09.2019 Ex.OP14 and closed the evidence on 25.08.2023 by suffering separate statement.

7.             We have heard the learned counsel for the parties and perused the case file carefully and have also gone through the evidence led by the parties.

8.             Learned counsel for complainant, while reiterating the contents of the complaint, has vehemently argued that complainant  purchased an apartment in the project of the OPs, for the total sale consideration of Rs.57,90,000/-. On 20.01.2015 an Apartment Buyer’s Agreement was executed between the parties.  The complainant  paid a sum of Rs.56,69,183/- to the OPs.  As per the Flat Buyer’s Agreement, the development work was to be completed within 42 months from the date of execution of the agreement but OPs have failed to complete the development work within stipulated period. Complainant approached the OPs several times and requested either to complete the construction work and handover the physical possession of the flat in question or to refund the deposited amount alongwith interest. OPs are enjoying the hard earned money of the complainant from the date of its deposit. Learned counsel for complainant has placed reliance on the case law titled as M/s Pyaridevi Chabiraj Steel Pvt. Ltd. Versus National Insurance Company Ltd. and 3 Ors. in Consumer Case no.833 of 2020 decided on 28.08.2020; Abhishek Khanna and others in Civil appeal no.5785 of 2019, date of decision 11.01.2021; Mr.Mridula Rajbanshi and another Vs. Umang Realtech (P) Ltd. 2021 SCej 1087 (NCDRC); Jose Mariano Corderio Versus M/s Kalash Real Estate Developers in First appeal no.12 of 2018, date of decision 01.02.2021; Deepak Goyal and another Versus M/s North Star Apartments Pvt. Ltd. and others, in consumer case no.871 of 2017, date of decision 28.09.2021; Sunny Ahuja Versus Raheja Developers Ltd. in consumer case no.180 of 2020, date of decision 03.01.2022.

9.             Per contra, learned counsel for OPs, while reiterating the contents of written version, has vehemently argued that this Commission has no jurisdiction to try and decide the present complaint as complainant does not come under the definition of consumer and the complainant should have filed the complaint before RERA as specific Board has been constituted by the Government to decide the disputes with respect to the societies, real estate etc. Further, this Commission has no territorial jurisdiction to entertain the present complaint as the project is located in Zirakpur, District Mohali, Punjab and the agreement having been executed at Chandigarh. The possession of the unit was to be delivered within a time frame of 48 months from the date of execution of the Buyer’s Agreement on 20.01.2015. The basic sale price of the unit was Rs.57,90,000/-. The complainant had applied for unit C-403 on 4^th floor vide their application for allotment dated 13.04.2014 but lateron complainant asked to change the unit to C-1003 on 10^th  floor. The complainant remained in default of payment. The complainant has paid only an amount of Rs.56,69,183/- against the flat in question. On 24.05.2021 an amount of Rs.5,27,887/- was due and for not depositing the remaining amount, the allotment of the flat in question has been cancelled and intimation was given to the complainant. The complainant was entitled to refund of Rs.42,86,713/- without interest after surrender of the original agreement and other papers. The complainant was defaulter herself so she is not entitled for any relief and lastly prayed for dismissal of the complaint. OPs relied upon the case law titled as Anil Rana Versus M/s ATS Estates Pvt. Ltd and Anr in Consumer Case no.234 of 2018, date of decision 05.01.2023

10.           We have duly considered the rival contentions of the parties.

11.           Admittedly, complainant purchased an apartment in the project of the OPs. The total sale consideration of the said flat was Rs.57,90,000/- and complainant deposited Rs..56,69,183/- with the OPs. It is also admitted that flat number has been changed in the year 2014 on the request of the complainant. It is also admitted that OPs were ready to refund on account of Rs.42,86,713/- on submission of original agreement.

12.             The OPs have alleged that complainant does not fall under the definition of consumer and the complainant should have filed the complaint before the RERA as specific Board has been constituted by the Government to decide the disputes with respect to the societies, real estate etc. We do not agree with the contention of the OPs. It is a settled proposition of law, that complaint under Consumer Protection Act, being an additional remedy. In this regard, we place reliance on the case titled as Imperial Structures Limited Vs. Surinder Anil Patni and Another in Civil Appeal no.3581-3590 of 2020 decided on 02.11.2020 wherein Hon’ble Supreme Court held that “the Homebuyers are ‘consumer’ as per the Consumer Protection Act and the availability of an alternative remedy under RERA would not bar them from initiating a complaint under Consumer Protection Act. Hon’ble Supreme Court further held that “the homebuyers are at liberty to approach Consumer Forum for claiming compensation in cases where the payment has been made but the developer is either delaying or denying the possession of the flats. The homebuyers can approach the Consumer Forum once the promised date of delivery of possession has expired as per the agreement between the homebuyers and developers”.

13.           Further, similar view was taken by the Hon’ble Supreme Court in latest judgment case titled as Experion Developers Pvt. Ltd. Versus Sushma Ashok Shiroor in civil appeal no.6044,7149 of 2019, decided on 07.04.2022 wherein Hon’ble Supreme Court held that the “Consumer Protection Act and the RERA Act neither exclude nor contradict each other. Infact, this Court has held that they are concurrent remedies, operating independently and without primary”.

14.           Hence, keeping in view the law laid down in the above judgments and facts and circumstances of the case, the present complaint is maintainable before this Commission. Hence, the plea taken by the OP has no force.

15.           OPs have alleged that this Commission has no territorial jurisdiction to try and decide the present complaint as the project is located in Zirakpur, District Mohali, Punjab and the agreement having been executed at Chandigarh. Admittedly, complainant resides at Karnal. Hence, as per Section 34 Consumer Protection Act, 2019 this Commission has jurisdiction to try and decide the present complaint. Thus, the plea taken by the OPs has no force.

16.           As per the Flat Buyer’s Agreement dated 20.01.2015, the project was to be completed within 42 months with grace period of six months from the date of execution of said Agreement. Thus, the OPs were bound to complete the development work of the flat in all respect upto 19.01.2019.  In para no.5 of the written version, OPs have alleged that due to labour problem and shortage of the sand due to ban on mining by the authorities as well as demonetization, there was some delay, which were beyond the control of the OPs. We found no substance in the contention of the OPs. Admittedly, there is delay in completion of the development work, for that complainant cannot be blamed. Hence, it is proved on record that OPs have not completed the construction work on the site within stipulated period. Complainant cannot be made to wait indefinitely for the delivery of the possession. In this regard, we are relying upon the following case laws:- 

17.           In Abhishek Khanna’s case (supra) the Hon’ble Supreme Court held that delay in delivery of possession of apartment-Refund-Factum of delay in completing construction and making offer of possession is undisputed fact in this case-Court directed developer appellant to refund entire amount deposited by respondent buyers as categorized in two categories by Court. Further, in Mridula Rajbanshi’case (supra) the Hon’ble National Commission held that Builder-Allotment of flat-Complainants cannot be made to wait indefinitely for the delivery of possession and the act of the opposite party in relying on Force Majeure clause while retaining the amounts deposited by the complainants, is not only an act of Deficiency in Service but also of Unfair Trade Practice-Direct the Builder Co. to refund the entire principal amount received alongwith compensation in the form of simple interest @ 9% per annum from the date of deposit till the actual date of payment together with costs of Rs.50,000/- within a period of four weeks from today, failing which the amount shall carry interest @ 12% per annum till its realization. Further, in Jose Mariano Cordeiro’s case (supra) the Hon’ble National Commission held that Possession delayed-Housing Residential flat-opposite party, failed to deliver the possession of the flat within the stipulated period-Deficiency in service on the part of the OP-Since deficiency in service was established on the part of the Respondent/opposite party-sought interest and compensation-Scope-Held-If builder is found deficient in service is entitled to pay compensation during period of delay period-complainant entitled for compensation for delayed handing over of possession.  Further, in Deepak Goyal’s case (supra) the Hon’ble National Commission held that Delay in possession of flat-Unfair Trade Practice-Complaint before National Commission-under clause-8 (a) of Flat Buyer’s Agreement promised period for offer of possession was 36 months with grace period of 90 days from the date of execution of the FBA, subject to exception as given under clause 8 (b), 38, delay in approval of sanctioned plan and issue of Occupation Certificate-promised period for offer of possession expired in November, 2015-Bulding not taken any plea and offer of possession was delayed either for delay in sanction of layout plan or in issue of Occupancy Certificate-Possession notice was issued on 27.11.2018, with delay of three years-Held, allottee cannot be made to wait for indefinite period for possession complaint allowed with cost of Rs.one lakh-Direction to builder to refund amount Rs.66,58,319/- alongwith interest @ 9% per annum”.

18.           Keeping in view the ratio of the law laid down in the abovesaid judgments, facts and circumstances of the complaint, the act of the OPs by not completing the project within stipulated period amounts to deficiency in service and unfair trade practice. Thus, the complainant is entitled for refund of the deposited amount alongwith interest, compensation on account of mental pain, agony and harassment and litigation expenses, etc.

19.           The case law cited by the learned counsel for the OP is not applicable to the facts of the present complaint.

20.           The complainant deposited the amount of Rs.56,69,183/- out of total sale consideration of Rs.57,90,000/- and only Rs.1,20,817/- is due qua the said amount. As per payment schedule, 5% of total basic price was to be paid at the time of handover the possession of the flat. The abovesaid due amount is less than 5% of total sale consideration of flat. The complainant was/is willing to pay the said amount alongwith other charges with the OPs but OPs have cancelled the flat in question and forfeited the entire deposit amount only on the excuse that complainant has not submitted the original Flat Buyer’s Agreement. When the OPs have already cancelled the flat in question, thus the submission of the original buyer agreement has no relevancy. OPs neither allotted the flat in question nor refunded the huge deposited amount without any cogent reason and are enjoying the hard earned money of the complainant from the date of its deposit. Thus, the act of the OPs amounts to deficiency in service and unfair trade practice. Hence, the complainant is entitled to Rs.56,69,183/- alongwith interest, compensation for harassment, mental pain and agony and litigation expenses.

21.           In view of above discussion, we allow the present complaint and direct the OPs to refund the amount of Rs.56,69,183/- (Rs. fifty six lakhs sixty nine thousand one hundred eighty three only) with interest @ 9% per annum from the date of  deposit till its realization to the complainant. We further direct the OPs to pay Rs.1,00,000/-  on account of mental agony and harassment and Rs.22,000/- towards the litigation expenses to the complainant. This order shall be complied with within 45 days from the receipt of copy of this order. It is made clear if the awarded amount is not paid within stipulated period, in that event, awarded amount will carry interest @ 12% per annum from the date of deposition till its realization. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance

Announced

Dated:29.04.2024                                                                                     

                                                                  President,

                                                     District Consumer Disputes

                                                     Redressal Commission, Karnal.

 

 (Vineet Kaushik)       (Dr. Suman Singh)

                          Member                          Member