Haryana

StateCommission

CC/154/2020

MANJIT SINGH CHOWHAN AND OTHERS - Complainant(s)

Versus

RAHEJA DEVELOPERS LTD. AND OTHERS - Opp.Party(s)

S.S.SIDHU

14 Oct 2022

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

  Date of Instituion:03.12.2020

                Date of final hearing:14.10.2022

                                                Date of pronouncement:24.01.2023

Consumer Complaint No.154 of 2020

IN THE MATTER OF

1.      Manjit Singh Chowhan s/o Sh. Mr. Gurucharan Singh Chowhan, R/o 113, Birch Court, Nirvana Country, Gurugram-122018, Haryana, India e-mail

2.      Harcharan Singh Chowhan, s/o Sh. Col. Manjit Singh Chowhan, R/o 113, Birch Court, Nirwana Country, Gurugram-122018, Haryana, India through his Constituted Attorney, Mr. Manjit Singh Chowhan, e-mail

3.      Manjeet Kaur Chowhan w/o Sh. Mr. Manjit Singh Chowhan, R/o 113, Birch Court, Nirwana Country, Gurugram-122018, Haryana, India through his Constituted Attorney, Mr. Manjit Singh Chowhan.

                                                                                      .….Complainants

Through counsel Mr. S.S. Sidhu, Advocate

Versus

1.      M/s Raheja Devlopers Limited, Registered office: W4D-204/5, Keshav Kunj, Western Avenue, Sainik Farms, New Delhi-110062, India.

          Raheja Developers Ltd., Raheja Mall, 3^rd Floor, Sector-47, Sohna Road, Gurugram, Haryana-122001, e-mail 2.    Mr. Navin Raheja cum Managing Director, M/s Raheja Developers Ltd., W4D-204/5, Keshav Kunj, Western Avenue, Sainik Farms, New Delhi-110062, India, e-mial ….Opposite parties No.1 & 2.

Through counsel Mr. Kamaljeet Dahiya, Advocate alongwith Mr. Aditya Kapoor, Advocate.

3.    Housing Development Finance Corporation (HDFC), The Capital Court, Olof Palme Marg, Munirka, New Delhi-110067, India.

….Opposite party No.3.

Through counsel Ms. Rupali Shekhar Verma, Advocate

CORAM:   S.P.Sood, Judicial Member.

                   S.C. Kaushik, Member.

Present:-    Mr. S.S. Sidhu, counsel for the complainants.

                   Mr. Kamaljeet Dahiya, Advocate alongwith Mr. Aditya Kapoor, counsel for opposite parties No.1 & 2.

Ms. Rupali Shekhar Verma, counsel for opposite party No.3.

O R D E R

S. P. SOOD, JUDICIAL MEMBER:

                    The brief facts giving rise for the disposal of the present complaint are that opposite party No.1 (“OP No.1”) is a company engaged in the business of real estate development and construction of buildings and OP No.2 is the Chairman-cum-Managing Director of OP No.1. OP No.3 is a financial assistance company, which provide loan services for housing. As complainants were in need of a flat for residence of complainant No.2 and his family so in the month of February 2015, OP No.1 approached and offered a flat to them in project namely “Raheja Revanta” situated at Sector-78, Gurugram, Haryana. It was a construction linked plan and total cost of the flat was Rs.1,42,29,098/-. Agreement to sell was executed between the complainants and OP No.1 on 09.04.2015 and in terms and conditions mentioned therein, complainants paid a sum of Rs.36,91,908/- to OP No.1 on different dates as under:-

Flat No.C-033, 3^rd Floor, Tower-C of 1621.39 sq. ft. was allotted to them on 09.04.2015 through allotment letter. Basic sale price of the flat was to be worked out @ Rs.8075/- per sq. ft. As per the understanding the complainants were to make initial payment of Rs.36,91,908/- and for remaining sale consideration the loan from HDFC Ltd. (OP No.3) was to be arranged by OP No.1 in the name of complainants. OP No.1 arranged the bank loan of Rs.1,00,00,000/- from OP No.3 and tripartite agreement dated 24.03.2015 also came into existence amongst complainants, OP No.1 and OP No.3.

2.                It was alleged that as per the agreement, possession of flat was to be given within a period of 36/48 months, but Ops utterly failed to do so. It was further alleged that as per the MOU executed between complainants and OP No.1, in case the possession of flat has not been handed over within the stipulated period, they will refund the entire amount received from the complainants alongwith compensation of Rs.1400/- per sq. ft. after the expiry of 36 months from the date of booking. It was further alleged that loan amount of Rs.1,00,00,000/- to Rs.1,04,03,604/- was received from OP No.3 and the same was transferred to OP No.1 in view of the construction linked plan and till 16.05.2019, OP No.1 received total amount of Rs.1,42,63,320/- from the complainants. Confirmation of payment by complainants to OP No.1 was also confirmed by OP No.3 vide letter dated 03.05.2019. Further, as per the MOU dated 09.04.2015, OP No.1 had been paying pre EMI directly to OP No.3 till May, 2018 and stopped making payment and since then complainants paying the pre EMI to OP No.1 on the assurance of OP No.1 that it will reimburse the amount on presenting the confirmation of payment. Complainants had paid Rs.26,65,446/- out of which till August, 2019 OP No.1 had reimbursed pre EMI amount of Rs.13,93,818/- only and thus, Rs.12,71,628/- is outstanding towards OP No.1 and has to reimburse the pre EMI paid by the complainants to OP No.3. As per the complainants, they visited the project site in the month of January, 2018 but to his surprise OP had not commenced the construction work, what to talk about handing over possession of the flat in question. Thereafter, they also sent legal notice dated 05.02.2018 to OP No.1, but all in vain. They also visited the office of OPs many times with a request to refund the deposited amount with interest of 18% p.a. but the OP did not consider their genuine requests. Thus, there was deficiency in service on the part of the Ops and complainants prayed for refund of deposited amount i.e. Rs.36,91,908/- alongwith interest at the rate of 18% p.a from the 60 days after the expiry of 36 months from the date of booking alongwith other reliefs, as prayed for.

3.                Notice of the complaint was issued against the Ops, upon which they appeared and filed their separate written statements.  OPs No.1 & 2 in their written statement denied the allegations of the complainants by submitting that OP No.1 is a company engaged in the business of real estate development and construction of buildings and OP No.2 is the Chairman-cum-Managing Director of OP No.1.  It was also submitted that OP No.1 never approached the complainants regarding project of Ops rather they themselves intended to purchase the unit in question and are not covered under the definition of consumers as they are real estate investors, who booked the unit in question for profit purposes. Likewise it was submitted that total cost of the unit in question was Rs.1,44,91,238/-, which excludes taxes, statutory charges and other charges. OP No.1 never arranged any loan for complainants, however, OP No.1 permitted them to avail the loan on the requests of the complainants as they wanted to get the home loan sanction from OP No.3 for their own benefits and meet their own financial requirements. It was further submitted that as per clause 4.2 of the agreement to sell, time period for offer of possession was to be calculated after providing necessary infrastructure excluding the period of force majeure conditions and complainants cancelled the unit in question much before due date of possession. Further it was submitted that no MOU was executed for security/surety from the OP No.1 to strengthen the agreement and as per the MOU, OP No.1 was to pay pre EMI to OP No.3 for the period of 36 months from the date of agreement or till the payment of entire amount.  As per clause No.5 of said MOU, OP No.1 was liable to pay only foreclosure charges and as per clause No.6 of MOU, OP No.1 was liable to pay interest on behalf of complainants for a period of 36 months from the date of booking and not till the payment of the entire amount. It is further submitted that complainants served legal notice only on the basis of documentary evidence, neither had they turned for settlement nor they agreed to retain the unit in question. Other allegations made in the complaint were denied. Thus there being no deficiency in service on the part of the OPs No.1 & 2 so complaint must fail. 

4.                On the other hand, OP No.3 in its written statement submitted that OP No.3 is only a financial institution and provided loan facility of Rs.1,04,03,604/- to the complainants as they were inclined to purchase a unit in the project of Ops No.1 & 2. Tripartite agreement dated 07.04.2015 was also executed amongst the parties. Further it was submitted that OP No.3 had no control over the acts and conducts of OPs No.1 & 2/builders, which is a separate entity. As per the clause-3 of Tripartite agreement, the builder and borrower have made an arrangement regarding liability of payment, whereof, the builder has assumed the liability of borrower initially for a period of 36 months from the date of first disbursement plus fractional period of month of disbursement and further, it was the responsibility of complainants to repay the home loan amount. It is further submitted that complainants themselves are defaulters in making payment of loan amount availed by them for purchase of aforesaid unit in question. Thus, there was no deficiency in service on the part of OP No.3.

5.                When the complaint was posted for recording evidence of the parties, learned counsel for the complainants tendered into evidence affidavit of Col. Manjit Singh Chowhan as Ex.CA vide which he has reiterated all the averments taken in the complaint alongwith other documents Ex.C-1 to Ex.C-26 and closed the evidence.

6.                Learned counsel for Ops No.1 & 2 also tendered into evidence affidavit of Mr. Wakeel Ahmed as Ex.OP-A alongwith documents Ex.OP-1 to Ex.OP-14 and closed the evidence on behalf of Ops No.1 & 2.

7.                On the other hand, learned counsel for OP No.3 suffered a statement that there was no need to lead any evidence on behalf of OP No.3 and the same was closed.

8.                The arguments have been advanced by Mr. S.S. Sidhu, learned counsel for the complainants, Shri Kamaljeet Dahiya, Alongwith Mr. Aditya Kapoor, learned counsel for Ops No.1 & 2 and Ms. Rupali Shekhar Verma, learned counsel for OP No.3. With their kind assistance entire record including documentary evidence as well as whatever the evidence led during the proceedings by the parties has also been perused and examined.

9.                As per the basic averment taken in the complaint and the reply filed thereto including the contentions raised by the learned counsel for the complainants, the foremost question which fell for adjudication by this Commission is as to whether the present complainants are entitled to get refund of the amount  alongwith other prayer which they had already deposited, alongwith the interest or not? 

10.              While unfolding the arguments, it has been argued by Mr. S.S Sidhu, learned counsel for the complainants that as far as the factum of executing the Flat Buyer’s Agreement is concerned, same is not in dispute. It is also not in dispute that complainants have paid Rs.36,91,908/- to the OP No.1. It is also not in dispute that basic sale price of the unit in question was  agreed to be of Rs.8075/- per sq. ft. and total cost was Rs.1,42,29,098/-/-. As per the Flat Buyer’s Agreement and the terms and conditions incorporated therein date of delivery of the possession of the flat, the possession complete in all respect was to be delivered to the complainants by the OP  within 36 months with the extended period of 6 months subject to some reservations. The period within which, the possession of the apartment was to be delivered had already expired despite depositing the amount of Rs.36,91,908/- and also having received loan amount of Rs.1,04,03,604/- directly from OP NO.3 on behalf of complainants. In these circumstances the complainants had no other option, but, to seek the refund of the amount alongwith interest, which they had already paid.   He placed reliance upon his authority of Hon’ble National Commission in CC NO.756 of 2020 titled as Chanda Manghani & Anr. Vs. M/s Raheja Developers Limited  decided on 21.01.2022.

11.              On the other hand, it has been argued by Mr. Kamaljeet Dahiya, Advocate alongwith Mr. Aditya Kapoor, Advocate, counsel for the Ops No.1 & 2 that complainants have not paid the installments strictly as per the repayment schedule. The total cost of the flat was Rs.1,44,91,238/-, excluding taxes, statutory charges and other charges. It has been further argued that the Ops No.1 & 2 will offer the possession of flat to the complainants after completion of development, but complainants cancelled the unit in question much before due date of possession. OP No.1 was to pay pre EMI to OP No.3 for the period of 36 months from the date of agreement or till the payment of entire amount.  It was further argued that as per clause No.5 of said MOU, OP No.1 is liable to pay only foreclosure charges and as per clause No.6 of MOU, OP No.1 was liable to pay interest on behalf of complainants for a period of 36 months from the date of booking and not till the payment of the entire amount. However, on one pretext or the other the possession was not delivered and now by taking the shelter of this Commission, the complainants seek refund of the amount and infact this amount has already been invested for carrying out developmental activities.  The answering Ops No.1 & 2 have not committed any breach of agreement. The complainants have no right to demand the refund as builder has not refused to complete the developmental work of the project and offer possession of flat to the complainants. The answering Ops No.1 & 2 will offer the possession of the flat to the complainants after completion thereof. Thus, the complainants are not entitled for the refund as prayed for.

12.              Ms. Rupali Shekhar Verma, learned counsel for OP No.3 also argued that answering OP is a financial institution, which provided loan facility of Rs.1,04,03,604/- to the complainants as they intended to purchase the abovesaid unit in the project of OP No.1. She further argued that the tripartite agreement dated 07.04.2015 was also executed among the parties. The builder and borrower has made an arrangement regarding liability of payment, whereof, the builder has assumed the liability of borrower for a period of 36 months from the date of first disbursement plus fractional period of month of disbursement and further, it was the responsibility of complainants to repay the home loan amount. Continuing further it was submitted that complainants themselves are defaulters in making payment of loan amount availed by them for purchase of aforesaid unit in question. Moreover, in case the builder will fail to deliver the possession of unit in question to the borrower, it will be the borrower who shall be liable to pay the IHFL regularly each month the EMI as laid down in the loan agreement. Thus, there was no deficiency in service on the part of OP No.3 and prayed for dismissal of the complaint qua OP No.3.

13.              Before deciding the case on merits, it is pertinent to refer to clause 8 of MOU Ex.C-4 dated 11.03.2015 attested by notary on 09.04.2015, which is as under:-

“ It is hereby agreed by the parties that the purchaser/investor within a time frame of 33 months to 36 months from the date of booking, shall be entitled  to call upon the Developer in writing, to cancel the aforesaid booking at a guaranteed premium compensation of Rs.1400/- per square feet and in such a case the Developer/its nominee shall cancel the said booking within 60 days of expiry of 36 months from the date of booking. It is hereby clarified that the Developer shall over and above the guaranteed premium compensation amount shall also be liable for refund of the entire amount paid by the Purchaser along with service tax so recovered from the Purchaser till date by the Developer. The Purchaser will execute the necessary documents to surrender/cancel the allotted units upon receipt of payment. The Purchaser shall execute such necessary deeds, documents in favour of Developer for the surrender of the said Apartment by the Purchaser to Developer and the payment of guaranteed premium compensation shall be subject to applicable tax laws. In case of delay in making the payment by the Developer to the Purchaser beyond 60 days, the Developer shall be liable to pay interest @ 18% per annum for the period of delay on the total price payable to the Purchaser. It is hereby clarified that till the time the price is fully paid by the Developer to the purchaser, the Developer shall also be liable to pay to the Bank all installments/pre possession EMIs, interest to the bank directly and keep the Purchaser fully indemnified in this regard.”

14.               Since the tripartite agreement is executed between the parties, the complainants are entitled according to the clause 8 of the MOU Ex.C-4. The complainants have deposited Rs.1,42,24,524/-, so they be entitled for the full amount alongwith interest as per clause 8 of the MOU Ex.C-4.  The complainants are also entitled for service tax amount i.e. Rs.1,29,188/-. The OP No.1 has paid pre EMIs to the complainants for an amount of Rs.13,93,818/- as per Ex.C-10 upto August 2019. The OP No.1 has not paid pre EMIs to the complainant w.e.f. September 2019 to  December 2022.  The OP No.1 has also confirmed in email Ex.C-15 that rate of interest will be 18%. The case law relied upon by the complainants is relevant because the facts and circumstances and the project of the case is similar to the present case.

15.              In view of the above submission and after careful perusal of the entire record, it is not in dispute that upon floating a project by the builders, apartment was booked by the complainants for a cost of Rs.1,42,29,098/- against which an amount of Rs.36,91,908/- had been paid.  It is also not disputed that the OP No.1 has received loan amount of Rs.1,04,03,604/- directly from the opposite party No.3 on behalf of complainants.  In total, complainants paid Rs.1,42,63,320/- (Ex.C-6) to the OP No.1. Flat Buyer’s Agreement is also not disputed.  As per the said agreement, the possession of the apartment was to be delivered within period of 36 months with an extended grace period of 6 months complete in all respects subject to some reservation. To the utter surprise of this Commission and is very pity that inspite of the fact that a long period of more than 7 years had expired, the possession of the flat has not been delivered by OP.  As such, there is a clear breach of terms and conditions of the Flat Buyer’s Agreement on behalf of the OP. It is the normal trend of the developer/OP that developer would collect their hard earned money  from  the individuals and would invest the funds in other projects as a result thereof the project  for which the investors have invested their hard earned money is not completed.  Resultantly, the delivery of possession or completion of the project is delayed as in the present case.  When the project is not complete as such, this Commission is of the considered opinion that there is deficiency in service of opposite parties and thus, complainants are well within their legal rights to get the refund of the amount of Rs.1,42,63,320/- as per the ledger of OP No.1 Ex.C-6 (Rs.One crore Forty two lacs Sixty Three thousand three hundred and twenty rupees only) which they had already deposited with the OP No.1.  Even otherwise also, there is a strong element of the physical and mental agony caused to the complainants for investing a huge amount and still deprived of not being put into possession of the same and under these constrained circumstances, they had to knock the door of this Commission even for seeking refund of the amount.  In such like cases, the Commission had to deal with the developer/OP with severe hands who are misusing the funds of the individuals. As far as the question of deficiency in service on the part of OP No.3 is concern, it is pertinent to mention here that OP No.3 is only a financial institution who provided loan facility to the complainants against security. As such, the question is answered in the affirmative.  

16.              In the light of the above observation and discussion, there are sufficient grounds to accept the complaint and while accepting the complaint, the Ops No.1 & 2 are directed to refund of the amount of 1,42,63,320/- as per the ledger of OP No.1 Ex.C-6 (Rs.One crore Forty two lacs Sixty Three thousand three hundred and twenty rupees only) which they had already deposited with the OP No.1 alongwith interest @ 9%  from  09.06.2018 till realization.  In addition, the complainants are also entitled for pre EMIs amount of Rs.30,53,360/-, which have not been indemnified by OP No.1 alongwith interest @ 9% from the respective dates of deposits till realization. In addition, the complainants are also entitled to Rs.22,69,946/- @ Rs.1400/- per sq. ft. of 1621 sq ft alongwith interest @ 9% per annum  from 09.06.2018 till realization.   The complainants are also entitled for service tax amount i.e. Rs.1,29,188/-. In case, there is a breach in making payment within the stipulated period of 45 days, in that eventuality, the complainants would further be entitled to get the interest @ 12% per annum, for the defaulting period. The complainants are also entitled of Rs.50,000/- (Fifty Thousand Only) for compensation of mental and physical agony.  In addition, the complainants are also entitled of Rs.21,000/-  (Twenty Five Thousand Only) as litigation charges.  It is also made clear that for non-compliance, the provisions enshrined under section 72 of the C.P. Act  would also be attractable.

17.              A copy of this order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 2019. This order be uploaded forthwith on the website of the Commission for the perusal of the parties.

18.              Application(s), pending, if any, stands disposed off in terms of the aforesaid order.

19.              File be consigned to record room.

Pronounced on 24.01.2023

                                                                                                            S.P.Sood

                                                                                                            Judicial Member                                                                                                                 Addl. Bench            

S.C Kaushik,

Member        

Addl. Bench

S.k (Pvt. Secy)