Delhi

New Delhi

CC/118/2022

Shyam Wati - Complainant(s)

Versus

M/S. VRP Buildtech Pvt.Ltd. - Opp.Party(s)

19 Apr 2023

ORDER

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-VI

(NEW DELHI), ‘M’ BLOCK, 1^STFLOOR, VIKAS BHAWAN,

I.P.ESTATE, NEW DELHI-110002.

Case No.CC-118/2022

IN THE MATTER OF:

1. SHYAM WATI

W/o Shri Balram

2. VIKRAM BIRLA

S/o Shri Balram

Both are resident of :

B-8, Palika Niwas Colony,

Lodhi Road, New Delhi,

                   ...Complainants

VERSUS

 

1. VRP BUILDTECH PVT LTD.

IF, 22-26, Ozone Centre,

Sector 12, Faridabad, Haryana.

 

2. PNB HOUSING FINANCE LIMITED

          9^th Floor , Antarikash Bhawan,

          22 K.G. Marg, New Delhi – 110001.                                   

…Opposite Parties

 

Quorum:

Ms. Poonam Chaudhry, President

Sh. Bariq Ahmad, Member

Sh. Shekhar Chandra, Member

                                                  Date of Institution:24.05.2022

    Date of Order      : 19.04.2023

 

ORDER

BARIQ AHMAD, MEMBER

1. The present complaint has been filed under the provisions of Consumer Protection Act, 2019. Briefly stated the facts of the case are as under: the Opposite Party No. 1 is a builder and engaged in the business of construction and sale/purchase of the commercial as well as residential properties in Delhi/NCR and the Opposite Party No. 2 is the Non-banking Finance Corporation and engaged in the business of housing finance. The Complainant had availed the finance facility from the Opposite Party No.2 against the property in question. The Opposite Party No.2 is Performa party and no Relief is being claimed against the Opposite Party No.2.
2. It is stated that the Complainants were searching for a residential accommodation in Delhi/NCR in the year 2017 and came to know through advertisement that Opposite Party No.1 is constructing Group Housing Complex in the name and style of “Happy Homes Grand” at AGH Colony, Sector 85 in Faridabad.
3. It is stated the complainants had applied for purchase of flat and subsequently on 17.03.2017 draw for allotment of flats was conducted. Flat No. 1108, Type A, Tower 1, 11^th Floor was allotted to the complainants after the successful draw. The Flat Buyer Agreement was executed by the Opposite Party No.1 on 14^th April, 2017. The total cost of the flat is/was Rs.27,50,190/-.
4. It is stated that  the Complainants were also in need of funds for purchase the flat in question hence contacted to the Opposite Party No.2, after completion the various formalities as required, sanctioned the loan amounting to Rs.16,00,000/- on 21^st October, 2017, and thereafter disbursed an amount of Rs.15,50,905/- to the Opposite Party No.1, including the bank loan, admittedly the complainants have paid an amount of Rs.24,18,723/- to the Opposite Party No.1 till date.
5. It is further averred that  as per clause 5.1.1 at page 9 of the agreement, the physical possession of the flat in question was to be delivered by the Opposite Party within 48 hours from the date of commencement and according to clause 1.2 page 3 of the agreement, commencement of date is 10.03.2017, meaning thereby is clear that the Opposite Party No.1 is/was bound to deliver the flat in question on or before 10^th of March, 2021.
6. It is stated that the complainants visited to the Opposite Party No.1 number of times for getting the possession of flat in question but no satisfactory answer has been given by the Opposite Party No.1.
7. That according to statement of account issued by the Opposite Party No.1 themselves an amount of Rs.3,31,467/- is payable by the complainant which the complainant  is ready to pay but the Opposite Party No.1 is not ready to handover the possession reason best know by them.
8. It is submitted that in fact, the prices of allotted flat have increased manifold during the last 4 years and due to which the Opposite Party No.1 became dishonest and they intend to sell the flat in question to some other party.  This fact was communicated by the official of the Opposite Party No.1 to the complainant on their last visit in the second week of March, 2022.
9. It is alleged that the act and activities of Opposite Party No.1 are clearly unfair trade practices. It is further alleged that the Opposite Party is also indulged in deficiency in services which is causing extreme hardship to the complainants. It is prayed that the Opposite Party No.1 may kindly be directed to handover the possession of flat in question alongwith documents i.e. completion certificate & occupancy certificate and also execute the sale deed of property in question in favour of complainants after taking the remaining amount Rs.3,31,467/- from the complainants. It is also prayed that the Opposite Party No.1 may kindly be directed to pay compensation to the complainants on a delayed period @ 18% p.a. and  the Opposite Party No. 1 may kindly be directed to pay Rs.5,00,000/- to complainants as compensation for harassment, mental agony and pain and Rs.1,55,000/- as cost of present complaint. Any further order (s) which this Hon’ble Commission deem fit and proper under the facts and circumstances of the case  also prayed in the interest of justice.
10. On notice, OP No.1 and OP-2 appeared and OP’s contested the case filed separate reply taking preliminary objections regarding maintainability, locus standi and cause of action. On merits, it is replied by Opposite Party-1 (VRP Buildtech Pvt Ltd.) : that this Hon’ble Commission had already restrained the  Opposite Party No.1 from creating any third-party rights, title or interests in the cancelled unit bearing no. 1108, Tower – 1, Type A, Happy Homes Grand, Sector – 85, Faridabad vide order dated 10.01.2023.
11. It is stated that the allotment of the Complainants was cancelled vide letter dated 30.11.2020, the allotment of the complainants stood cancel on 10.09.2020. Therefore, the Complainant is not entitled to seek the possession of the allotted unit.  The complainants had failed to pay due installments, which was raised in accordance with the terms of buyer agreement dated 14.04.2017 which was  payable on or before 26.03.2020.  It was alleged that the total outstanding as on date is Rs.6,10,477/- (Rs.3,31,467/- as per principal outstanding + Rs.99,796/- as interest on the delayed payment of installments @ 10% per annum + Rs.1,79,214/- as additional charges payable at the time of possession). It was  also alleged that the complainants did not come forward to accept the refund full and final amount which was left after deduction of earnest money and other charges in accordance with the terms of Buyer Agreement. It is submitted by the OP-1 that the complainants had only paid sum of Rs.2385905/- and not Rs.21873 is alleged. It is further submitted that the difference of Rs.31818/- is the credit given by the OP-1 to the complainants against GST and the complainants are not entitled to claim it.   It is further stated that the total amount recoverable from the complainants is Rs.610477/- (Rs.331467/- is principal outstanding + Rs.99796/- as interest on delayed payment on installment @ 10% p.a. + Rs.179214/- is additional charges payable at the time of possession.
12. It is replied by Opposite Party-2 (PNB Housing Finance Ltd.) that the Opposite Party-2, is one of the largest housing finance company duly registered with the National Housing Bank (NHB).
13. It is stated that the Complainants had booked flat/apartment in the project namely “Happy Homes Grand” (hereinafter referred to as ‘Project’) being marked and developed by Opposite Party No.1 (hereinafter referred to as ‘OP-1’). Pursuant to the said booking, an Allotment Letter dated 17.03.2017 was issued in favor of the Complainants confirming the allocation of Unit/Apartment No. 1108, Type-A, Tower-1, 11^th Floor admeasuring approx 643.870 sq. ft. in favor of the Complainants. Furthermore, the Flat Buyer Agreement (hereinafter referred to as ‘Agreement’) dated 14.04.2017 was executed between the OP-1 and Complainants wherein total sale consideration was stipulated as Rs.26,25,480/- (Rupees Twenty Six Lakh Twenty-Five Thousand Four Hundred Eighty only).
14. It is also stated that as per Clause 5.1.1 of the Agreement, the possession of the unit/apartment was to be handed over to the Complainants within the period of 48 months from the commencement date i.e. 10.03.2017 (as per clause 1.12 of the Agreement) and accordingly, the due date for handing over of possession was 10.03.2021. However, OP No.1 failed to handover the possession within the stipulated time.
15. It is submitted that the Complainants in order to fulfill their dreams of buying their home approached the OP-2 herein through loan application dated 03.10.2017 to avail loan under the category of ‘Housing Loan’. Thereafter, OP-2 after being satisfied with the validity of the documents of the Complainants sanctioned a loan in the name of Mr. Bal Ram, Vikram Birla & Mrs. Shyam Wati for an amount of Rs.16,00,000/- (Rupees Sixteen Lakh only) vide Sanction Letter dated 21.10.2017.  OP-2 has disbursed loan amount to the tune of Rs.15,50,905/- (Rupees Fifteen Lakh Fifty Thousand Nine Hundred Five only) on the specific demands of the Complainants in the form of Disbursement request form. It is averred that the OP-2 is being made a party to the present complaint which has no context as to the grievance of the Complaints. It is further submitted that OP-2 is neither a necessary party nor no cause of action arisen against OP-2.
16. Complainant thereafter filed rejoinder and evidence, reiterating therein the averments made in the complainant and denying all the allegations made in the written statement of the OP-1.
17. On the other hand OP-1 has produced affidavit of Sh. Jetaish Gupta, Director of OP-1. OP-1 filed Performa invoice dated 01.03.2020, copy of reminder dated 23.06.2020, copy of newspaper publication dated 26.04.2020, copy of cancellation and refund notice dated 30.11.2020, copy of allotment letter and flat buyer agreement dated 31.07.2017, copy of occupation certificate of the project dated 30.08.2022. OP-2 has produced affidavit of Ms. Shubhangi D/o Mr. Sanjay Prasad Gupta, working as Legal Manager/AR with the OP-2.  
18. We have heard complainant and counsel for OP`s and have perused the case file carefully.
19. The fact that Complainant booked a flat with OP-1 is not in dispute from the evidence on record. It is also an admitted fact that O1 allotted Flate No. 1108 in Type-A, Tower-I and project Happy Homes Grand Sector – 85, Faridabad vide  allotment letter dated 31.07.2017 and Flat Buyer Agreement was executed on 31.07.2017.
20. It was contended on the behalf of the complainant that OP-1 was deficient in providing its services. It was also submitted that complainant had paid 90% of the cost of the flat i.e. Rs.2750190/- to the O1 at the time of booking and thereafter made payment a total of Rs.2418723/- was paid by Complainant to O1. It was also contended that as per the terms of the advance registration form allotment was to be made within 48 months from the date of commencement i.e. 10.03.2017 as per clause 1.12 page 3 of the Agreement. However, OP failed to hand over the possession. It was also argued that the O1 thus failed to comply with the terms of the Agreement dated 31.07.2017.  
21. As regards the No Objection certificate, completion of project the OP-1 had filed the application for grant of occup0ation certificate vide application  dated 21.09.2019 after the submission of the application for obtain the OC the OP-1 had not handed over the physical possession to the complainant despite receiving 90% cost of the flat. The OP-1 has filed copy of application for grant of OC dated 21.09.2019 Ex-OP-1/9 and OC for the project vide memo no. ZP-1127/AD(NK)/2022/26410 dated 30.08.2022.
22. It was contended on behalf of the complainant that OP-1 was deficient in providing service as possession of flat was not given. No penalty was given as per agreement dated 31.07.2017. It was stated possession was to be handed over within 48 months of the execution of the agreement. As regards deficiency in services, Hon’ble Supreme Court has held in Arifur Rahman Khan and Ors. Vs. DLF Southern Homes Pvt. Ltd. And Ors. 2020(3) RCR Civil 544 that the failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within the contractually stipulated time frame, amounts to deficiency.
23. It was also held in Lucknow Development Authority Vs. M.K. Gupta, 2 1994(1) SCC 243byHon’ble Supreme Court that when a person hires the services of a builder, or a contractor, for the construction of a house or a flat, and the same is for a consideration, it is a “service” as defined by Section 2 (o) of the Consumer Protection Act, 1986. The inordinate delay in handing over possession of the flat clearly amounts to deficiency of service. 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, along with compensation.
24. On the other hand it was submitted on behalf of the O1 that the complainant was aware of the payment plan. The payment of installments timely was the essence of the contract. It is also alleged that Consumer dispute as contemplated under the Consumer Protection Act, which could not be attributable to the respondent, therefore, the Complaint is liable to be dismissed. It was alleged that despite repeated reminders Complainant failed to make the payment of installments on time. It was alleged that Complainant was unable to establish any deficiency of service.
25. As regards, the objection taken by OP`s that complaint is not maintainable as complainants are not consumer within the meaning of CP  Act. We are of the view that no evidence was brought on record by O1 to show that the complaint booked the flat for sale. As no evidence brought on record by OP-1 to prove the said contention. We are of the view of that the same is without any merit. We are also find merits in the submission of the complainant that they had to pay interest in long taken for purchases of the flat.
26. After giving our careful thought to the arguments advanced by Ld. Counsels for parties, we are of the view that admittedly, there was inordinate delay in handing over the possession of the flat in question to Complainant which amounts to deficiency in service.
27. Section 2 (r) of the Consumer Protection Act, 1986, defines ‘unfair trade practices’ in the following words: “unfair trade practice” means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice …” and includes any of the practices enumerated therein. The Hon’ble Supreme Court held in above case of Lucknow Development Authority Vs. M.k. Gupta, 1994(1) SCC 243, that when possession is not handed over within the stipulated period, the delay so caused is not only deficiency of service but also unfair trade practice.
28. It is also pertinent to note Hon’ble Supreme Court also held in Fortune Infrastructure and Anr. Vs. Trevor D’:Lima and Ors.2018(5) SCC 442 that a person cannot be made to wait indefinitely for possession of flat and they are entitled to seek refund of the amount paid by them along with compensation.
29. Thus as the services of OP-1 was deficient, the complainant was justified in claiming possession of the flat, interest on delay possession with compensation. The relief sought by the Complainants do not fasten any direction/allegations against the OP-2.
30. On a recent ruling passed by Hon`ble Supreme Court in Debashis Sinha & Ors. Vs. M/S RNR Enterprises, on 9th February 2023 in Civil appeal No.3343 of 2020 wherein it was held that it is duty of the person intending to erect a building or to execute works to apply for complication certificate- it is no part of flat owner`s duty to apply for a completion certificate- taking possession without complication certificate is not a valid ground not to direct developers to apply for and obtain completion certificate. In this case admittedly occupation certificate for th e project obtained by OP-1 on 30.08.2022, OP-1 is not handed over within the stipulated period, the delay so caused is not only deficiency in service but also unfair trade practice and the complainant is entitled for the possession of the flat. 
31. We thus, hold that OP-1was guilty of deficiency in services. We accordingly direct OP No.1 to hand over the possession of flat No.1108 Type A, Tower 1, 11th Floor, Happy Homes Grand, at AGH Colony, sector-85, Faridabad, Haryana  and to execute sale deed of the said flat along with interest @ 12 % p.a. from the date of respective payment till handover the possession  within a period of 4 weeks from the date of receipt of order. In case of delay in the possession beyond 4 weeks OP-1 is directed to pay interest @ 18% p.a. for the delayed period. We also award Rs.25,000/- (Rupees Twenty Thousand Only) as cost on litigation.
32. It is further clarified that amount which has to be pay by complainants in respect of remaining actual cost of Rs.3,31,467/- of the flat shall be adjusted/deducted by the OP No.1 from the amount of total compensation amount as per Para 31 above.

A copy of this order be provided to all parties free of cost. The order be uploaded on the website of this Commission (www.confonet.nic.in).

File be consigned to record room along with a copy of the order.

 

 

(POONAM CHAUDHRY)

President

 

 

 

(BARIQ AHMAD)                                                  (SHEKAHAR CHANDRA)

          Member                                                                         Member