Chandigarh

DF-I

CC/462/2021

Vishal Gupta - Complainant(s)

Versus

M/s Vatika Ltd - Opp.Party(s)

Rahil Mahajan

15 May 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

 

                    

Consumer Complaint No.	:	CC/462/2021
Date of Institution	:	16.7.2021
Date of Decision	:	15.5.2023

 

Vishal Gupta son of late Sh. N.K. Gupta resident of House No.69, Sector 19-A, Chandigarh.

.

… Complainant

V E R S U S

1.    M/s Vatika Limited, Sushant Lok-1, Block-A, Mehrauli Gurgaon Road, Gurgaon 122022, Haryana.
2.    Vatika Limited Unit A-002, INXT City Centre Ground floor, Block A, Sector 83, Vatika India next Gurugram 122012,  Haryana.
3.    M/s Investor Clinic, 802-805, Block-A, Iris Tech Park, Sohna Road, Sector 48, Gurgaon-122018.

 

.  … Opposite Parties

 

CORAM :	PAWANJIT SINGH	PRESIDENT
	SURJEET KAUR SURESH KUMAR SARDANA	MEMBER MEMBER

                       

ARGUED BY		Sh. Rahil Mahajan counsel for complainant. None for  OPs No.1&2. Sh. Saurabh Chawla, counsel for OP No.3.

Per SURESH KUMAR SARDANA, Member

1. Briefly stated  the complainant booked a unit measuring 2265 Sq. ft. 3BHK in the project of OPs i.e. Tranquil Heights having sale price of Rs.1,54,02,000/-. Out of the total sale consideration the complainant paid Rs.25,61,025/- to the OPs towards the part payment of the unit in question.  The complainant entered into Buyer Builder Agreement with the OPs and according to which the possession of the unit was to be handed over within 48 months from the date of execution of the agreement.   On 5.10.2015 the complainant enquired with the OPs regarding the construction of the project and the OPs informed the complainant that  the same would start in November, 2015 and shockingly demanded Rs.38.00 lakh without starting the construction.  The complainant vide email dated 21.4.2016 informed the OPs that no documents for processing the bank loan had been provided by the OPs which had been sanctioned way in the year 2015. The complainant also assured the OPs that if the documents are provided he would complete all the dues as the same had to be given through his loan.  It is alleged that as per construction update as on January 2021 the project has not been completed yet by the OPs. Alleging the aforesaid act of Opposite Parties deficiency in service and unfair trade practice on their part, this complaint has been filed
2. The Opposite Parties NO.1&2 in their reply stated that the complainant is not a consumer as the unit in question was purchased by him for commercial purpose. It is averred that the delay in construction and handing over possession of the unit was owing to various factors beyond the control of answering OPs.  The reason for delay was the litigation filed in the high court due to dispute with the GAIL and the delay caused by the Haryana Urban Development authority in acquisition of land for laying down its 75 meters and 60 meters sector roads connecting the project in question and matter getting in sundry litigation between HUDA and land owners. Further the declaration regarding Gurgaon as notified area for purpose of ground water and restriction was imposed by the Government in its extractions for construction purpose. Further there was total and partial ban on construction due to the directives issued by the National Green Tribunal at various times.  Even the Hon’ble Supreme Court imposed a complete ban on the construction activities for total of 70 days over different periods between November, 2016 to December 2019.  It also imposed a set of partial restrictions as detailed in para 3(a) of the complaint, which continued to till 14^th February 2021.  Moreover there was COVID 19 outbreak which also caused delay and also shortage of labours.  Thus, due to aforesaid force majure, conditions the construction was delayed. Even otherwise the complainant was defaulter of payment and owing to which the OPs issued a notice of termination upon the complainant. It is denied that there is any deficiency on the part of the answering OPs. All other allegations made in the complaint has been  denied being wrong.
3. OP No.3 in its reply stated that it only  facilitates the clients who may want to invest in a particular property.  It is averred that the answering OP is not a party to the Builder Buyer Agreement  and nor it received any payment towards the property in question.  The role of the answering OP is consultancy and showing the clients option of their desire.  Denying any deficiency on its part it is submitted that the complaint be dismissed.
4. Rejoinder was filed and averments made in the consumer complaint were reiterated
5. Contesting parties led evidence by way of affidavits and documents.
6. The grouse of the complainant is that the OPs had delayed the construction of the unit in question and did not offer possession of the unit in question whereas the defence of the OPs that due to force majure  conditions the constructed delayed.
7.  The contention of  the Opposite Parties  No.1&2 Developer that as the delay in completing the Project was due to the reasons beyond their control, the prayer by the Complainant for refund of the deposited amount is not tenable. The defence taken by the Opposite Parties No.1&2 Developer for the delay in completion of the Project is (i) initiation of the Gail Corridor which passes through the Project, resulting in realignment of the entire layout, non-acquisition of sector roads by HUDA to enable accessibility to the various corners of the project, ban of  National Green Tribunal, non-availability of labour due to Covid 19, partial restriction by the Hon’ble Supreme Court. However, no cogent material has been adduced by the Developer to establish that the completion of construction and offer of possession has been delayed on account of reasons beyond their control. Except for stating that there was change in the layout plan on account of initiation of Gail Corridor, no documentary evidence has been led by the Developer in support of their defence as to what steps were taken to get over these hurdles and even no correspondence with the competent authority to find out the solution has been placed on record. Even, in our view, these reasons cannot be viewed from any angle as "Force Majeure Event".  Further, with regard to shortage of labour due to Covid 19, as per Agreement, the possession of the Unit was to be offered, complete in all respect, to the Complainants within a period of 48 months from the execution of the Agreement dated 01.07.2015 meaning thereby the possession was supposed to be handed over to the Complainants latest by July 2019 and period of Covid 19 has started from March 2019. As such, this ground of the delay also does not hold any water. It is apparent from Annexure C-19  dated January 2021 shows  that the construction was not completed till January 2021.   
8. From the above discussion it is crystal clear that there is deficiency on the part of the OPs by not completing the construction of the unit in question despite receiving huge amount from the complainant. Hence, they are liable to refund the complainant.
9. As far as the allegation of the OPs that the complainant is not a consumer as he purchased the flat for commercial purpose is concerned the same is not tenable as the OPs has failed to lead any evidence on record that the subject flat was purchased by the complainant for commercial purpose.  The Hon'ble National Commission in CC-1122/2018 titled Narinder Kumar Bairwal and Ors. vs. Ramprastha Promoters and Developers Pvt. Ltd. and Ors. decided on 01.11.2019, has held as under:

“The contention of the Learned Counsel that the said Apartments were purchased for commercial purpose is not supported by any documentary evidence as the onus shifts to the Opposite Parties to establish that the Complainants have purchased the same to indulge in 'purchase and sale of flats' as was held by this Commission in Kavit Ahuja vs. Shipra Estates I (2016) CPJ 31. The Opposite Parties failed to discharge their onus and we hence hold that the Complainants are 'Consumers' as defined under Section 2(1)(d) of the Act."

10. In view of the above discussion, the present consumer complaint succeeds and the same is accordingly allowed. OPs are directed as under:-

1. to refund the complainant Rs.25,61,025 with interest @9% P.A. from the date of respective dates of deposit till realization.
2. to pay Rs.50,000/- to the complainant as compensation for causing mental agony and harassment to him;
3. to pay 10,000/- to the complainant as costs of litigation.

11.      This order be complied with by the OPs within thirty days from the date of receipt of its certified copy, failing which, they shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) above, with interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above
12.      Certified copies of this order be sent to the parties free of charge. The file be consigned

			sd/- [Pawanjit Singh]
			President
			Sd/-
			[Surjeet Kaur] Member   Sd/-
			[Suresh Kumar Sardana]
mp			Member