Delhi

StateCommission

CC/301/2017

SUPREET BHALLA & ANR. - Complainant(s)

Versus

M/S TODAY HOMES AND INF. LTD. - Opp.Party(s)

SUSHIL KAUSHIK

02 Mar 2020

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Arguments :02.03.2020

Date of Decision :13.03.2020

 

COMPLAINT NO.286/2017

In the matter of:

            Sanjay Ahuja                                                                       ………Complainant

Versus

 

 

COMPLAINT NO.287/2017

In the matter of:

            Tarun Kumar Bindal                                                          ………Complainant

Versus

 

 

COMPLAINT NO.288/2017

In the matter of:

            Deepesh Sachdev                                                             ………Complainant

Versus

 

 

COMPLAINT NO.289/2017

In the matter of:

            Shailendra Singh  Shekhawat                                        ………Complainant

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COMPLAINT NO.290/2017

In the matter of:

            Hemant Kumar                                                        ………Complainant

Versus

 

 

COMPLAINT NO.291/2017

In the matter of:

            Sumit Kumar Somani                                                        ………Complainant

Versus

 

 

COMPLAINT NO.292/2017

In the matter of:

            Ashutosh Kumar Jain                                                       ………Complainant

Versus

 

 

COMPLAINT NO.293/2017

In the matter of:

            Parveen Kumar Aggarwal                                                ………Complainant

Versus

 

 

COMPLAINT NO.294/2017

In the matter of:

            Naresh Kumar                                                                     ………Complainant

Versus

 

 

 

 

COMPLAINT NO.295/2017

In the matter of:

            Richa Rathi                                                                          ………Complainant

Versus

 

 

COMPLAINT NO.296/2017

In the matter of:

            Manoj Kumar Khera                                                          ………Complainant

Versus

 

 

COMPLAINT NO.297/2017

In the matter of:

            Ruchi Sharma                                                         ………Complainant

Versus

 

 

COMPLAINT NO.298/2017

In the matter of:

            Ramesh Chandra Sharma                                               ………Complainant

Versus

 

 

COMPLAINT NO.299/2017

In the matter of:

            Ankit Ahuja                                                                          ………Complainant

Versus

 

 

 

COMPLAINT NO.300/2017

In the matter of:

            Vivek Gupta                                                                         ………Complainant

Versus

 

 

COMPLAINT NO.301/2017

In the matter of:

            Supreet Bhalla                                                                    ………Complainant

Versus

 

 

COMPLAINT NO.302/2017

In the matter of:

            Sajjan Kumar Gupta                                                          ………Complainant

Versus

 

 

COMPLAINT NO.303/2017

In the matter of:

            Rahul  Kumar Tiwari                                                         ………Complainant

Versus

 

 

COMPLAINT NO.304/2017

In the matter of:

            Sonam Tshering                                                                ………Complainant

Versus

 

 

 

 

COMPLAINT NO.305/2017

In the matter of:

            Rajat Gupta                                                  ………Complainant

Versus

 

 

COMPLAINT NO.306/2017

In the matter of:

            Vishal Singh                                                                        ………Complainant

Versus

 

 

COMPLAINT NO.307/2017

In the matter of:

            Aurbind Pal Singh                                                              ………Complainant

Versus

 

 

COMPLAINT NO.308/2017

In the matter of:

            Radhunath                                                                           ………Complainant

Versus

 

 

CORAM

Hon’ble Sh. O. P. Gupta, Member (Judicial)

1.     Whether reporters of local newspaper be allowed to see the judgment?                                                      Yes/No

2.      To be referred to the reporter or not?                                                                                                           Yes/No

Shri O.P. Gupta, Member (Judicial)

 

 

JUDGEMENT

1. By this common judgement I shall be deciding 23 complaints bearing no.C-286/17 to C-308/17 as they involve same question. The OP in all the cases is one and same. It is only complainants and flat numbers which are different.
2. Facts have been taken from case no.C-286/17. In other cases the facts are almost same, only the name of complainants and flat number being different.
3. Initially these complaints were filed in NC where they were registered as no.CC-198/15, CC-793/15, CC-795/15, CC-796/15, CC-797/15,    CC-798/15,  CC-800/15,    CC-801/15,   CC-802/15,   CC-806/15,  CC-807/15,   CC-809/15,    CC-812/15,   CC-814/15,   CC-818/15, CC-821/15, CC-822/15,     CC-824/15,     CC-828/15,        CC-831/15,
4.  
4. On 03.03.17 counsel for complainants stated that complainants did not want to adduce any additional evidence. On 13.04.17 counsel for OP stated that OP wanted to file additional evidence as initial evidence filed by OP in NC was confined to pecuniary jurisdiction. The OP filed affidavit of Shri Varun Kumar, Manager Legal/ AR in additional evidence on 28.11.17. Counsel for complainant filed affidavit of complainant in rebuttal.
5. On 20.04.18 counsel for OP moved two applications, one for appointment of Local Commissioner and other for directing complainant to file appropriate affidavit with proper application regarding amendment of prayer as to whether they are seeking refund or possession of flat. The counsel for complainant stated that she didn’t want to file reply to the applications. However she orally opposed the application by submitting that so far as appointment of Local Commissioner was concerned, LC  can be appointed if court feels necessity for the same. LC cannot be appointed at the instance of party for collecting evidence. The application was dismissed. Regarding other application counsel for OP pointed out that initially the complainant wanted possession. In rebuttal affidavit filed on 19.01.18 the complainants have prayed for refund.  According to him, the complainants could not change prayer without any amendment. Counsel for complainant replied that complainant made alternative prayers in the complaint.  Main prayer was for possession and in alternative complainants sought refund. Moreover prayer for refund was based on subsequent developments vis. Decision in CC no.198/15 titled as Dushyant Kumar Gupta vs. Today Homes decided by NC on 31.01.17. The counsel for OP  refuted said argument by submitting that in complaint, complainant made alternative prayer but in affidavit filed before NC complainants confined to possession only. The application was dismissed.
6. On 20.11.18 OP moved an application under Order 11 Rule 14 CPC for interrogatories. Counsel for OP agreed to delete interrogatory no.5 being irrelevant. Complainant was directed to file specific answer to question no.1 to 4 and 6. The complainant failed answers to interrogatories on 29.11.19.
7. On 29.11.19 counsel for OP filed copy of order dated 31.10.19 passed by  NCLT Delhi vide which moratorium was granted against OP. On 02.03.2020 the counsel for complainant filed copy of order dated 04.02.2020 passed by NCLAT in Company Appeal no.(80) (in solvency) no.926 of 2019 titled as Flat Buyers Association Winter Hills vs. Umang Realtech Pvt. Ltd. in which it was held that if moratorium  is granted in respect of one project, it cannot affect any other project of the same real estate company (corporate debtor) in other places where separate plans are approved by different authorities and land and its owner may be different. In view of the same the moratorium granted by NCLT in respect of Royal Eleganica, Sector-73, Gurgaon was taken as not effective for the present project namely Canary Greens, Sector-73, Gurgaon.
8. I have gone through the material on record and heard the arguments. The case of the complainant is that they were allotted apartment no.02, Floor no.07, Tower T-5 on 20.10.10. Flat buyer agreement dated 23.08.11 was executed. Total consideration was Rs.63,79,480/- comprising of basic sale price, car parking, interest free security, club membership, EDC/IDC, PLC. As per clause 21 of the agreement the OP agreed to hand over possession of the apartment within 36 months from the date of signing agreement. The complainants have paid Rs.49,55,560/- i.e. almost 78% of the total consideration. They have also paid Rs.1,28,757/- towards service tax. Some of the clause in the buyer agreements were one sided. Possession of the apartment has not been given by the OPs till date of filing complaint. There was delay of almost 11 months in granting possession.
9. The complainants regularly visited site but were surprised to see that construction was never in progress. The site seemed to be an abandoned piece of land. Due to acts and omissions on the part of OP, entire family of complainant was suffering from disrupt, mental torture and agony and incurring sufficient financial losses. Clause 21 of the agreement provided that if OP was not able to hand over possession within grace period of six months, OP was to pay compensation @5/- per sq. ft. per month of super area. Clause of compensation at such a nominal rate is unjust and one sided and as compared to holding charges payable to the OP @50/- per. Sq. ft. of the super area in the event of delay in taking possession of the apartment after its completion. The OP has been keeping and using the money of the complainant and saving huge finance costs as borrowing the same from the outside market financers would have costed the OP interest @15% to 16% p.a. If the amount of agreed penalty is calculated, it  comes to approximately 1.7% p.a. rate of interest.
10. During the period 2011 and 2015, the prices of the properties in the  area where present house was proposed to be given has  risen to more than 200% of the price.
11. The OPs were taking defence of their own default by violating the rules and stoppage of work which could not be considered as beyond their control. Hence complainants sought directions to the OP to hand over possession of the apartment complete in all respects and execute all necessary and required documents. In the alternative they prayed for a ready to move in apartment which is of identical size and in similar locality or third alternative being payment of Rs.1,64,00,000/- being the available   market rate of similar  house @Rs.10,000/- per sq. ft. was prayed. It was also claimed that the OP should pay simple interest @18% p.a.  from the committed date of possession i.e. August, 2014 till the possession is handed over. Cost of Rs.1 lakhs towards litigation was also sought.
12. The complaints have been opposed on identical grounds. The OP took a preliminary  objection  that since agreed sale consideration was not more than Rs.1 crore, the NC lacked pecuniary jurisdiction. Complainants delayed the payment of sale consideration and were  not entitled to seek specific performance of the agreement. Construction of the flats has been delayed on account of reasons beyond the control of the OP.
13. As mentioned above, the question of pecuniary jurisdiction already stand decided by NC.
14. No material has been produced by  OP to prove that completion and offer of possession has been delayed on account of reasons beyond its control.
15. The NC directed the OPs in CC no.198/15 titled as Dushyant Kumar Gupta vs. Today Homes dated 31.01.17omes H in para-10 of the judgement to refund entire amount received from complainants including service tax, alongwith compensation in the form of simple interest @10% p.a. from the date of each payment till the date on which the entire amount with compensation is refunded. The OP was also directed to pay Rs.10,000/- as cost of litigation in each complaint. The payments were directed to be made within three months from the date of order.
16. On the basis of parity the present complaints are also allowed. The OP is directed to refund entire amount received from complainants, including service tax  alongwith compensation in the form of  simple interest @10% p.a. from the date of each payment till the date on which entire amount alongwith compensation is refunded. The OP is also directed to pay Rs.10,000/- as cost of litigation in each complaint. Payment to be made within three months from receipt of copy of this order.
17. One      copy   of the judgment be placed in filesC-287/17, C-288/17,

C-289/17, C-290/17, C-291/17, C-292/17, C-293/17, C-294/17,

C-295/17, C-296/17, C-297/17, C-298/17, C-299/17, C-300/17,

C-301/17, C-302/17, C-303/17, C-304/17, C-305/17, C-306/17,

C-307/17, C-308/17.

18. Copy of the order be sent to both the parties free of cost
19. File be consigned to record room.

                                                                                                                                                                                 (O.P. GUPTA)                                                                                                                                                                                      MEMBER (JUDICIAL)