ORDER

IA/18672/2017,IA/7681/2018,IA/12704/2018,IA/9106/2019 & IA/5724/2020,

For the reasons stated in the applications, IAs are allowed.

JUDGEMENT

PER MR. JUSTICE RAM SURAT RAM (MAURYA),

PRESIDING MEMBER

1.      Heard Mr. Sanjeev Singh, Advocate, for the complainant and Mr. A.R. Takkar, Advocate, for the opposite parties, through video conferencing.

2.      Sh. Rajan Handa (the complainant) has filed this complaint for directing M3M India Private Limited and another (opposite-parties), (hereinafter referred to as the builder) (i) to refund the entire amount of Rs.46,36,730/- along with interest @ 24% per annum w.e.f. 14.05.2012 till the date of actual refund as deposited by him; (ii) to pay compensation of Rs.20,00,000/-, for mental trauma, harassment and hardship caused to the complainant; (iii) to pay Rs.1,00,000/- to the complainants as the cost of litigation and (iv) any other relief which the Commission deems fit and proper, in the fact and circumstances of the case, be passed.

3.      The facts as stated in the complaint are that the builder was a company, engaged in the business of development and construction of multi-story residential and commercial buildings and selling its unit to the prospective buyers. The builder launched for construction of residential complex in the name of “M3M WOODSHIRE” in Sector-107, Gurgaon, Haryana, in 2012. The complainant booked a 2BHK + Study flat, admeasuring of 1534 Sq. ft, in “M3M WOODSHIRE” in April, 2012. The complainant deposited Rs. 5,00,000/- on 14.05.2012, through cheque No. 763315, (encashed on 09.06.2012), vide Receipt No. 9720, Rs.2,23,176/- on 12.07.2012, vide Receipt No. 10356 and Rs.6,88,066/- on 03.01.2013, vide Receipt No. 11608 (total Rs.14,11,242/-). A provisional allotment letter dated 13.02.2013 was issued to the complainant, allotting Flat No. 1002, Tower No. B03, 10^th Floor, in aforesaid project, admeasuring 1534 Sq. ft. Along with this allotment letter, a “Construction Linked Payment Plan” was attached, in which Rs.13,68,941/- had to be paid by 03.01.2013. 95% of total sale consideration had to be paid in 12 instalments, on start of different level of construction up to commencement of external plaster and 5% had to be paid within 30 days of the notice of possession. Thereafter, the complainant deposited Rs.4,00,000/- on 05.12.2013, vide Receipt No. 17631, Rs.5,00,000/- on 05.12.2013, vide Receipt No. 17632, Rs.15,25,488/- on 10.01.2014, vide Receipt No. 18747 and Rs.5,00,000/- on 10.01.2014, vide Receipt No. 18748 (total Rs.29,25,488/-). Apartment Buyer’s Agreement (ABA) was executed on 25.03.2014. In the ABA, promised date of possession was mentioned as 36 months with grace period of 180 days, from the date of commencement of the construction. In ABA “Construction Linked Payment Plan” was attached and total cost of the flat was shown as Rs.84,89,362/- and the time was an essence of the contract. The complainant requested the builder to change the “Construction Linked Payment Plan” to “Deferred Payment Plan” i.e the remaining amount be realised at the time of possession. The builder agreed the request. The builder through addendum dated 23.05.2014 amended the ABA dated 25.03.2014. Total cost of the apartment was changed to Rs.1,00,23,362/- and instead of 13 instalments, now six instalments payment schedule was attached to this addendum, enhancing the amount of instalments, which was deceptive. The builder issued possession notice dated 28.04.2017, demanding Rs.60,88,926/- (including the stamp charges). The complainant, then, visited the site and found that the construction work was still in progress. Club building, convenient shopping complex, balconies, common area, plumbing works, drainage, internal and external electrification, covered parking, etc. were not in existence, although costs of these things were included in the possession letter. The construction of the tower was only completed and even white washing was not done. When the complaint made inquiry in the office of the builder that how possession notice was issued although the construction was not complete then evasive reply was given. The complainant gave legal notice dated 31.05.2017 and requested to return his money of Rs.46,36,730/- along with interest @ 24 % per annum and Rs.10 lakhs for mental agony. The builder vide letter dated 18.07.2017 replied that possession notice has already been issued on 28.04.2017, which was well within the period as mentioned in the ABA as such no question of refund of money arise. On the allegations, the builder has committed unfair trade practice in not disclosing carpet area, which is actually sold or ratio of carpet area and super area, enhancing the cost of the flat, issuing possession notice and thereby realizing costs of various constructions without completion of those constructions as such the complainant was entitled for refund of money, this complaint was filed on 16.08.2017.                                   

4.      The builder filed its written reply on 23.11.2017 and contested the complaint. In written reply, they admitted booking and provisional allotment of Apartment No. MW TW B03/1002 (size 1534 Sq. ft.) to the complainant on 13.02.2013 and execution of Apartment Buyer’s Agreement on 25.03.2014, execution of addendum on 23.05.2014 and total deposit of Rs.46,36,730/- by the complainant. It has been stated that the complainant approached the builder through Lord Krishna Real Infra (P) Ltd. and expressed his willingness to invest in the project of the builder. The complainant gave Expression of Interest on 14.05.2012, for allotment of the flat on preferential location, in any of the existing projects of the builder. It was agreed that in case, the builder failed to allot the flat on preferential location, within 9 months, then the money deposited by the complainant would be returned with interest @ 9% per annum. On availability of the flat on preferential location, the complainant was informed, then he filled up booking application form on 03.12.2012. The builder issued provisional allotment letter dated 13.02.2013 to the complainant, allotting Apartment No. MW TW B03/1002 (size 1534 Sq. ft.). Thereafter, 2 copy of Apartment Buyer’s Agreement (ABA) was handed over the complainant on 22.03.2013. Along with provisional allotment letter dated 13.02.2013, “Construction Linked Payment Plan” was supplied to the complainant  but he neither paid the instalments according to the schedule as mentioned in the allotment letter dated 13.02.2013 nor turned up for execution of ABA. As such pre-cancellation notice dated 29.10.2013 was issued to him. He did not respond the notice as such allotment was cancelled vide letter dated 20.11.2013. Then he approached the builder and made some payments, then ABA was executed/signed on 25.03.2014, after reading and understanding all the terms and conditions. The complainant then requested for deferring payment of the remaining instalments till the notice of possession as he did not have money at that time. For deferring payment of the remaining instalments, he agreed for enhancement of sale price at the rate of Rs.1000/- per sq. ft. The proposal of the claimant was accepted and Addendum dated 23.05.2014 was executed, in which total cost of the flat was mentioned to Rs.1,00,23,362/-. The builder completed construction well within time and applied for issue of Occupation Certificate, which was issued on 20.04.2017. Thereafter, possession notice dated 28.04.2017 was issued to the complainant. The possession was offered well within the time mentioned in ABA. The complainant did not turn up for making final payment as mentioned in the notice dated 24.04.2017, within the time allowed in the notice. The complainant gave legal notice dated 31.05.2017 and asked to return his money of Rs.46,36,730/- along with interest @ 24 % per annum and Rs.10 lakhs for mental agony. The builder vide letter dated 18.07.2017 replied that possession notice has already been issued on 28.04.2017, which was well within the period as mentioned in the ABA as such no question of refund of money arise. Thereafter pre-cancellation notice was issued to him on 29.09.2017.        

5.      The complainant filed rejoinder reply to the written reply of the builder on 19.02.2018, in which, he denied material facts contrary to the complaint and reiterated the facts stated in the complaint. It has been stated that the builder had issued possession notice before completion of the construction and before obtaining Occupancy Certificate which was illegal. The builder was not justified for demand of interest at the rate of 24% per annum after 30 days of issuing possession letter. Entire action of the builder raising arbitrary demands and cancellation of the allotment were illegal.  

6.      The complainant filed documentary evidence along with the complaint and an Affidavit of Evidence of Sh. Rajan Handa dated 19.02.2018, an Affidavit of Admission/Denial of the documentary evidence of the builder. Along with I.A. No. 7681 of 2018, additional documentary evidence. The builder filed documentary evidence along with counter reply and Affidavit of Evidence of Deepak Kapoor on 28.05.2019. Details of documentary evidence of the parties are given in Appendix, to this judgment.

7.      I have considered the arguments of the parties and examined the record. The complainant deposited Rs.5,00,000/- on 14.05.2012, through cheque No. 763315, (encashed on 09.06.2012), vide Receipt No. 9720, Rs.2,23,176/- on 12.07.2012, vide Receipt No. 10356 and Rs.6,88,066/- on 03.01.2013, vide Receipt No. 11608 (total Rs.14,11,242/-). “Construction Linked Payment Plan” was supplied to the complainant along with Provisional Allotment Letter dated 13.02.2013. It has been stated by the builder that the complainant neither paid the instalments according to the schedule as mentioned in the allotment letter dated 13.02.2013 nor turned up for execution of ABA, as such pre-cancellation notice dated 29.10.2013 was issued to him and he did not respond to the notice as such allotment was cancelled vide letter dated 20.11.2013. Under “Construction Linked Payment Plan” demand notice has to be served upon the buyers but the demand notices have not been brought on record.

8.      In Provisional Allotment Letter dated 13.02.2013, approximate size of the flat was mentioned as 1534 sq. ft. In ABA dated 25.03.2014, Super Area of the flat was mentioned as 1534 sq. ft. The complainant was purchasing as well as obtaining possession of the carpet area, which has not been mentioned nor ratio of carpet area and Super Area has been disclosed. Allotment was already cancelled on 20.11.2013 as such the complainant was not in bargaining position and under the duress that his deposits were forfeited he had signed ABA dated 25.03.2014 and Addendum dated 23.05.2014. Supreme Court in Poineer Urban Land & Infrastructure Ltd. Govindan Raghawan, (2019) 5 SCC 725, IREO Grace Realtech (P) Ltd. Vs. Abhishek Khanna, (2021) 3 SCC 241 and N.B.C.C. India Ltd. Vs. Shri Ram Trivedi, (2021) 5 SCC 273 has held that term of the contract would not be final and binding, if has been shown that the flat purchaser had no option but to sign on dotted line on the contract framed by the builder, which was one sided.

9.        In “Construction Linked Payment Plan” as attached to the Provisional Allotment Letter dated 13.02.2013 and ABA dated 25.03.2014, 85% of total sale consideration was being realized for the basic construction, which was not proper. Till 10.01.2014, the complainant had already paid Rs.46,36,730/- i.e. more than 50% of total sale consideration of Rs.8489362/- as such he requested for “Deferred Payment Plan” but in the addendum dated 23.05.2014, cost of the flat has been arbitrarily enhanced to Rs.1,00,23,362/- from Rs.8489362/- and instead of 13 instalments, six instalments payment schedule was attached to this addendum, enhancing the amount of instalments, which was unfair trade practice. In view of the facts that the builder was committing unfair trade practice, the complainant is entitled for refund of the money along with interest.

10.    The counsel for the builder, relying upon the judgment of Supreme Court in IREO Grace Realtech (P) Ltd. Vs. Abhishek Khanna, (2021) 3 SCC 241, submitted that once possession notice was given, the buyer was obligated to take possession as the possession was offered well within promised period. In present case, in the possession notice dated 28.04.2017, cost of car parking charges, club membership charges, electricity, gas and other utility infrastructure and connection charges were required to be deposited. The complainant has stated that on receiving possession notice, he, visited the site and found that the construction work was still in progress. Club building, convenient shopping complex, balconies, common area, plumbing works, drainage, internal and external electrification, covered parking, etc. were not in existence, although costs of these things were included in the possession notice. Although it is alleged that Occupation Certificate was obtained on 20.04.2017 but its copy was not sent along with possession notice dated 28.04.2017 nor it has been filed before this Commission. Quality Construction Certificate has not been provided. The complainant has also filed various photographs showing that the construction was going on, even after issue of possession notice. If the construction was not complete and not in habitable condition, then issue was possession notice was not proper. As per ABA, the construction had to be completed within 36 months with grace period of 6 months from the date of commencement of the construction i.e. upto June, 2016, while possession notice was given on 28.04.2017. As such there was delay in offering possession.   In such circumstances, the complainant was justified in not taking possession of the flat.

O R D E R

In view of aforementioned discussions the complaint is allowed with cost of Rs.one lakh. The builder is directed to refund the entire amount deposited by the complainant along with interest @ 9% per annum from the date of each deposit till the date of refund. The builder is directed to comply the order within two months from today.

IA/13590 of 2017

Since consumer complaint is decided finally, stay application has become infructuous.  Accordingly, it is rejected.                                      

APPENDIX OF DOCUMENTARY EVIDENCE OF THE COMPLAINANT

APPENDIX OF DOCUMENTARY EVIDENCE OF THE OPPOSITE PARTY