DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No.82/2021
Veena Kalra
W/o Mr. A.K. Kalra
R/o H.No. 101 Jorbagh
New Delhi-110003.
Vikram Kalra
S/o Mr. A.K. Kalra
R/o H.No. 101 Jorbagh
New Delhi-110003. .…Complainants
VERSUS
Ramprastha Developers Private Limited
Through its Directors
Having its registered office at:
Plot No. 114, Sector-44
Gurgaon-122002. ….Opposite Party
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Present: Adv. Siddharth Karnawat proxy counsel for Adv. Parolia for complainant with authority.
Present: Adv. Mohd. Imran Ahmed and Adv. Ravina Panikar with Authority from Sh. Ankur Sethia, AR for OP.
ORDER
Date of Institution:05.04.2021
Date of Order :11.11.2024
President: Ms. Monika A Srivastava
Complainants have filed the present complaint seeking direction to deliver the possession complete in all respects; interest @12% per annum on the amount deposited by the complainants from the promised date of possession till actual possession; Rs.5,00,000/- as compensation and Rs.1,00,000/- as litigation cost.
- Complainants state that they have booked a plot in the project “Ramprastha City” for their residential requirement. It is stated by the complainants that OP represented to them that they are in process of developing plotted housing colony in Sector – 92, 93 & 95 Gurgaon of the project with world class facilities where possession was to be offered within 36 months from the date of booking. It is stated that based on the representation and made by the OP and considering the location complainants paid an advance amount of Rs.5,00,000/- on 29.06.2006.
- It is stated that the total consideration was Rs.42,50,000/- out of which without the issue of allotment letter, OP has collected substantial amount of Rs.40,00,000/- from the complainants till June 2008.
- It is further stated that complainants on various occasions requested the OP to issue an allotment letter and execute the BBA- (Builder Buyer Agreement) however, the OP turned a deaf ear.
- It is stated that on 05.06.2009 OP sent a letter of the complainants informing that they have received letter of intent for Plotted Housing Colony and pursuant to that, construction has started OP also raised a demand of Rs.2,50,000/-. Copy of the said letter sent by OP dated 05.06.2009 is annexure C-2 (colly).
- It is further stated that complainants regularly visited the OP but no information was provided by the OP and neither did the OP issued receipts with respect to the payments made by the complainant.
- On 15.12.2010 OP issued a preliminary allotment letter for a plot 500 Sq. Yards and raised a demand of Rs.2,50,000/-. It was also stated in the letter that the specific plot number will be allotted after approval of zoning plan however, the same was not communicated.
- Complainants visited the project site several times only to realise that no construction has started and they communicated their dissatisfaction to the OP. OP however only assured that the construction would start soon and possession will be handed over to the complainant. Copy of the letter dated 15.12.2010 is annexure C-3.
- On 08.07.2017, OP sent a provisional letter of allotment at Sector 37 D of the project without specifying the plot number wherein the OP unilaterally, increased the cost of the plot to Rs.63,59,000/- and also changed the location of the plot. Complainants were shocked to see such letter from OP wherein their plot was changed in an arbitrary manner and cost was substantially increased. Copy of the letter dated 08.07.2017 is annexure C-4. OP, alongwith the said letter annexed a payment receipt dated 12.05.2016 acknowledging the receipt of Rs.40,00,000/- from the complainants. Copy of the payment receipt dated 12.05.2016 is annexure C-5.
- Complainant has stated that “unfair trade practice” of the OP is evident from its conduct in after collecting Rs.40,00,000/-, OP has, in an absolute unlawful manner changed the allotment of the plot and increased the price.
- Complainants met a representative of the OP and proceeded against such transfer and increase. Thereafter OP assured the complainants to reallot the plot originally allotted to the complainants however, the same was not done.
- Complainants stated that this act of the OP in not delivering the possession even after 14 years from the date of booking and collecting Rs.40,00,000/- out of total consideration of Rs.42,50,000/- amount to deficiency in services along with the fact that plot number was not allotted to the complainant neither was an agreement to sell executed.
- Complainant has relied on the judgment passed by the Hon’ble Supreme Court in Fortune Infrastructure Vs. Trevor D’Lima (2018) 5 SCC 442 and M/s Supertech Ltd. Vs. Rajni Goyal CA No.6649-50 of 2018, Pioneer Urban Land and Infrastructure Vs. Geetu Gidwani Verma CA No.1677/2009, judgment by Hon’ble NCDRC in Vishal Malik Vs. Pioneer Urban Land and Infrastructure.
- It is stated by the complainant that OP is guilty of unfair trade practice and deficiency in service as there is inordinate delay in handing over the possession, arbitrarily changing the plot, failure to complete construction even after receiving substantial consideration of the plot.
- In their reply, OP has stated that the complaint is sheer abuse of the process of law and that the complainant had requested the OP seeking investment in undeveloped agricultural land in 2006 in the hope of making speculative gains on the approval of the zoning plan but since the zoning plans were not approved, complainants sought to file this vexatious complaint. It is stated by the OP that it did not agree to provide services of any kind to the complainants unless the plans were approved as it was merely transaction for sale of plot and in reality speculative investment of the complainants which failed to give any return and complainants have now chosen to file the complaint.
- It is further stated by the OP that complainants were fully aware of the fact that the said land is a mere futuristic approach and decided to make an investment for speculative gains and that is why complainants paid a sum of Rs.5,00,000/- in 2006.
- It is further stated that complainant has never raised any issue whatsoever from the date of booking till the date of filing of the present complaint and has now approached the Commission with concocted and fabricated story to cover up their own faults and raised false and frivolous issues. OP has reiterated that the complainant has a merely speculative interest having invested with a view to earn quick profit and due to unprecedented slow down in real estate market, is intending to make profit out of miserable condition of the OP.
- It is further stated that complainants have paid a sum of Rs.40,00,000/- which is a portion of the amount payable towards the plot and which is not full and final payment as only basic amount is sought to be paid at the booking stage and further payments towards Govt. dues on account of EDC/IDC are payable at the time of allotment of plot and execution of PBA (Plot Buyer Agreement). It is further stated by OP that no date of possession was ever mutually agreed upon between the parties and complainants have claimed interest from an undefined date which signifies that there is no date of cause of action as claimed by the complainants.
- It is further stated by the OP that complainants have attempted to create a right in their favour by resorting to terminate transactions which are hopelessly barred by time and that the complainants were never interested in fulfilling the necessary formalities towards booking of the said plot. It is stated that the booking did not fructify and proceed to the stage to offer of possession due to complainants own failure to pay the full consideration towards purchase price of the said plot and complete the formalities.
- It is stated by the OP that complainants are not consumers within the meaning of CPA 2019 since their only objective was to make investment in a futuristic project of the OP to reap profits at a later stage. It is reiterated that the complainants had full knowledge of the uncertainties involved and yet though decided to invest in the futuristic project of the OP. It is stated that complainants did not have the intention to use the said plot for their personal residence or the residence of any of their family members.
- It is further stated that complainants are elite and educated individuals who have knowingly taken the risk of investing in a project the delivery and final price of which were dependent upon future developments and not clear at the time of booking.
- OP has also taken the objection pertaining to the jurisdiction of this Commission lacking in view of Section 79 of the RERA. OP has not denied the issuing of tentative registration to the complainant in their future potential project in ‘Ramprastha City’ in the year 2006.
- It is further stated by the OP that the complainants are in default due to non-payment of developmental charges, Govt. charges (EDC/IDC), PLC and interest free maintenance security (IFMS). It is further stated that OP had to bear with the losses and extra costs owing to the delay in payment of these charges.
- It is stated by the OP that there is no averment in the complaint which can establish that the delay in possession is attributable to the OP as finalisation of approval of the layout plans were held up for various reasons beyond the control of the OP including passing of HT line over layout, road deviation, depiction of villages etc. It is further stated by the OP that at the time when the complainant approached the OP it was unequivocally made clear to them that specific plot cannot be earmarked out of such tracts of undeveloped and agricultural land. OP has further stated that attempt was made to sell the project through the advertisement through the real estate market so that the possession may be handed over by them at the earliest possible and that they are continuing with the construction of the project and will be soon able to complete it. OP has further stated that delay in delivering the possession of the plot is for reasons beyond the control of the OP and that OP has applied for mandatory registration with the RERA but it is pending approval.
- In their rejoinder, complainants have relied on the judgment passed by the Hon’ble Supreme Court in Meerut Development Authority Vs. Mukesh Kumar Gupta IV (2012) CPJ 12 wherein it is stated that failure to deliver possession of the flat constitutes a recurrent continuing cause of action. Complainants have also relied on the judgment of the Hon’ble Supreme Court passed in Lucknow Development Authority Vs. M.K. Gupta 1994 SCC (1) 243 wherein it was stated 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 under the Act. Complainants have next relied on the judgment passed by NCDRC in Sanjay Rastogi Vs. BPTP Ltd. CC No. 3580/2017 decided on 18.06.2020 and
- Complainants have also relied on the judgment of the Hon’ble Supreme Court in Imperia Structures Ltd. Vs. Anil Patni CA 3581-3590/2020 decided on 02.11.2020 wherein it was held that nothing under RERA bars initiation of proceedings under the CPA. As also on the judgment passed by the Hon’ble NCDRC in Ajay Nagpal Vs. Today Homes and Infrastructure Pvt. Ltd. CC No.1764/2017.
- Complainants have reiterated that deferring of issuance of allotment letter even after receiving the payment amounts to ‘unfair trade practice’ on the part of the OP. It is stated that there is a delay of four years after which the OP issued the preliminary allotment letter for a plot measuring 500 sq. yds. in the said project at Sector 92, 93 & 95. Complainants have further reiterated that OP has arbitrarily and unfairly escalated the price of the plot to Rs.63,59,000/- instead of Rs.42,50,000/- and have also changed the location of the plot of the complainants without their consent and has failed to provide specifications about it. Further, OP has failed to execute PBA despite persistent inquiries by the complainants.
- Complainants have further stated that the allegations of the OP that the complainants are investors is baseless and devoid of merits. In this regard complainants have relied on the judgment passed by the Hon’ble NCDRC in Sanjay Rastogi and in Anila Jain Vs. Emaar MGF Land Ltd. CC No.2208/2017 decided on 11.11.2019 wherein it was held “the onus was upon the OP to prove that the flat in question was booked by the complainant for commercial purpose. The opposite party has miserably failed to discharge the reliance placed by it.”
- Complainants have also relied on the judgment passed by the Hon’ble Supreme Court in Fortune Infrastructure Vs. Trevor D’Lima (2018) 5 SCC 442 wherein it was held “ Although we are aware of the fact that there was no delivery period stipulated in the agreement, a reasonable time has to be taken into consideration. In the facts and circumstances of this case, a time period of three years would have been reasonable for completion of the contract.
- It is further stated that OP has itself admitted that it has failed to get the RERA approval of the project till date. It is further stated that the reasons cited by OP for not delivering the possession timely were foreseeable and under the control of OP and could have been easily remedied if the OP had taken timely steps to do the same. It is stated that OP is trying to mislead the Commission by stating irrelevant factors under the guise of force majeure factors.
- Complainants have relied on the judgment passed by Hon’ble Supreme Court in Wg. Cdr. Arifur Rehman Khan Vs. DLF Southern Home Pvt. Ltd. 2020 SCC OnLine SC 667 decided on 24.08.2020 where in it was held “a failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within a contractually stipulated period amounts to a deficiency. There is a fault, shortcoming or inadequacy in the nature and manner of performance which has been undertaken to be performed in pursuance of the contract in relation to the service.” Citing this judgment complainants state that the delay in handing over possession amounts to deficiency in service is causing immense financial loss and mental agony to the complainants.
- Both the parties have filed their respective evidence affidavits as well as written arguments. OP has relied on Hon’ble Supreme Court in Mayawanti Vs.Kaushalya (1990) 3 SCC 1 wherein it is stated “in a case of specific performance, it is settled law, and indeed it cannot be doubted, that the jurisdiction to order specific performance of a contract is based on the existence of a valid and enforceable contract…..”. As also in Vijay Kumar Dabas Vs. Chahat Ram CS (OS) No.506 of 2010 decided on 30.08.2012 by the Hon’ble Delhi High Court in Brahm Singh Vs. Sumitra CS (OS) No.1208 of 2011 and Agarwal Hotel Pvt. Ltd. Vs. Focus Properties Pvt. Ltd. 63 (1996) DLT 52.
This Commission has gone through the entire material on record and have heard the oral arguments. Complainants have placed on record receipt issued by OP showing a payment of Rs.40,00,000/- made by the complainants against the total amount receivable of Rs.42,50,000/-. Complainant have also placed letter issued by OP dated 15.12.2010 regarding preliminary allotment of plot of 500 sq. yds. in ‘Ramprastha City’, Gurgaon in Sector 92, 93 & 95 Gurgaon and wherein it was mentioned that the specific plot No. would be allotted after approval of zoning plans which is expected shortly.
The complainants have also placed on record letter dated 05.06.2009 issued by OP wherein the OP has accepted that a payment of Rs. 40,00,000/- received by the OP and the balance amount of Rs.2,50,000/- was to be paid by the complainants which clearly shows that the amount of the plot was fixed as Rs.42,50,000/- and that the complainants paid Rs.40,00,000/- before 2009. It is also seen that the OP has not denied the payments made by the complainants or the time when it was paid.
Complainants have also placed on record letter dated 08.07.2017 wherein this allotment was later changed to sector 37D Gurgaon and is undisputed by the OP. In the said letter, the total amount of the plot was mentioned as Rs.63,59,000/- for the first time.
It is undisputed and clear from the documents on record that the complainants did booked a plot with the OP measuring 500 sq. yds. in their project ‘Ramprastha City’, Gurgaon which was later changed after seven years to a different sector and the price of the plot was also changed without any prior information or consultation with the complainants, arbitrarily. It is undisputed that OP floated the said project or took payment of Rs.40,00,000/- from the complainants from 2006 to 2008 even though requisite permissions were not available with the OP to float the said project. OP has not filed any document to prove their case.
On one hand it is stated that the complainants approached them for investing in a futuristic project, however, name of the project i.e. ‘Ramprastha City’ was clear at the time when the substantial sum of money of Rs.40,00,000/- was taken from the complainants which implies that the project was designed and developed and was ready to be sold to the consumers. Though the OP has stated that there is no delay as there was no project yet has provided vague explanations in their reply regarding the inordinate delay in offering possession.
The contention of the OP that complainants are not consumers is merely an averment which is not supported by any piece of evidence by the OP in their reply and as per the judgment of of the Hon’ble NCDRC in Kavita Ahuja Vs. Shipra Estates Ltd. CC No.137/2010 decided on 12.02.2015 wherein it was held that it is for the OP to prove that the buying of the unit by the complainant was for a commercial purpose. The OP has failed to prove this averment.
OP has raised an objection relating to the limitation that the complaint is barred by time without mentioning any dates. Relying on the judgment of the Hon’ble Supreme Court in Meerut Development Authority Vs. Mukesh Kumar Gupta IV (2012) CPJ 12 wherein it was held that failure to deliver possession of the flat constitutes a recurrent continuing cause of action and therefore this Commission is of the view that the complaint is not barred by time as undisputedly the possession has not been handed over in this case.
Further, the contention of the OP that complainants are investors also remains an averment on paper as the OP has not been able to discharge the said onus as Hon’ble NCDRC in Anila Jain Vs. Emaar MGF Land Ltd. CC No.2208/2017 has held “the onus was upon the OP to prove that the flat in question was booked by the complainant for commercial purpose.
OP has also raised the objection relating to jurisdiction of this Commission being barred in light of the RERA, the Hon’ble Supreme Court in Imperia Structures Ltd. Vs. Anil Patni CA 3581-3590/2020 and relied on in Ireo Grace Realtech Pvt. Ltd. vs Abhishek Khanna AIR 2021 SC 437 held that nothing under RERA bars initiation of proceedings under the CPA.
The Hon’ble Supreme Court in Hyundai Motor India Ltd. Vs. Shailendra Bhatnagar [Civil Appeal No. 3001 of 2022 arising out of Petition for Special Leave to Appeal (Civil) No. 4881 of 2021] has held
15. If the reliefs granted in a consumer complaint fits any of the statutory provision contained in sub clause (1) of Section 14 of the Act, it would be well within the power and jurisdiction of the Forum to pass directions irrespective of the fact as to whether specifically certain reliefs have been claimed or not, provided that facts make out foundations for granting such reliefs. In any event, it is within the jurisdiction of the said forum to mould the reliefs claimed to do effective justice, provided the relief comes within the stipulation of Section 14(1) of the Act.
Therefore, this Commission relying on the judgment passed by the Hon’ble Supreme Court in Wg. Cdr. Arifur Rehman Khan Vs. DLF Southern Home Pvt. Ltd. 2020 and the above judgment directs the OP to refund Rs.40,00,000/- with interest @9% per annum from dates of deposit till realisation within three months from the date of pronouncement of the order failing which the interest to be payable would be 12% per annum. Since the OP have not denied that there was delay in issuing receipts/provisional allotment, OP is further directed to pay a sum of Rs.1,00,000/- as compensation to the complainants. This entire amount is payable to the complainants within three months from the date of pronouncement of the order.
Copy of the order be given to the parties as per rules. File be consigned to the record room. order be uploaded on the website.
