STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA
Date of Institution: 13.06.2017
Date of final hearing: 21.11.2023
Date of pronouncement: 16.01.2024
CONSUMER COMPLAINT NO. 384 of 2017
IN THE MATTER OF: -
Dinesh Saroha S/o Sh. Rajbir Singh Saroha, R/o H. No. 1021, Sector-15, Sonepat, Haryana. …..Complainant
Versus
- M/s Shree Vardhman Developers Pvt. Ltd. having its registered office at 301-311, 3rd Floor, Indraprakash Building, 21-Barkhamba Road, New Delhi-110001 through its Director/Authorised Signatory.
- Shree Vardhman Gardenia, Sector-10, Sonepat (Opp. BM Engineering College) through its Manager.
…..Opposite Parties
CORAM: Sh. Naresh Katyal, Judicial Member
Argued by:- Sh. Vishal Nehra, counsel for complainant.
Sh. Vikas Singh, proxy counsel for Ms. Meenakshi Jyoti, counsel for opposite parties.
ORDER
NARESH KATYAL, JUDICIAL MEMBER:
Facts are: in year 2010-2011, OPs launched project namely: Shree Vardhman Gardenia in Sonepat (Haryana). In year 2012, executive of OPs approached complainant and explained the project. They informed complainant that they have already got building plan sanctioned and got all approval from concerned Govt. Authority. They showed construction activities in Tower-A3 going in full swing and assured complainant that construction on site going in full swing in many other towers and possession will be given within stipulated period of 18 months from date of booking as mentioned Clause10 (a) of Flat Buyers Agreement. Complainant, lured by assurances of executive of OPs, booked residential flat of 4 bedrooms (Flat No. 801 on 8th Floor) in Tower-A3 having approx. 2060 sq. ft. area, equivalent to 191.44 sq. mtr., by paying Rs.4,09,941/- as booking amount in complex named Shree Vardhman Gardenia Sector-10, Sonepat. Flat Buyer Agreement-Annexure C-1 was executed on 27.06.2012. As per terms and conditions of agreement, basic price of flat in question was Rs.40,99,400/-. It was made specific that 15% of basic price shall constitute earnest money. Rs.2.00 lacs additionally were to be paid towards reserve covered car parking space and Rs.75,000/- was to be additionally paid for recreation club. Complainant opted for construction linked payment plan.
2. As per clause 10(a) of agreement dated 27.06.2012; it has been stipulated that construction of flats is likely to be completed within period of 18 months from date of booking with grace period of 6 months. Possession of flat was to be given within 18 months i.e. till December, 2013, but it has not been offered yet. There is delay on the part of OPs and interest was claimed by complainant vide letter Annexure C-4. Complainant, time and again visited the site and saw that no, or, negligible work going on. He kept on requesting site executives of OPs to finish project and hand over possession of flat complete in all respects, but in vain. On 29.07.2016, letter Annexure C-5 was received by OPs stating that possession would be handed over to complainant very soon. On 15.08.2016, complainant again visited site and surprised to see that there was hardly any progress at site during last three years. He sent notice dated 15.08.2016 Annexure C-6 to OPs. He stated that there is undue delay in handing over the possession of flat, despite the fact, more than 92% of basic price and 100% of car parking, recreation club and other charges etc. have been paid. Condition of flat was nowhere, near to giving possession. Even after three years delay from target date, building is not ready. OPs sent letter dated 29.12.2016 Annexure C-7 stating that project could not be completed within time as many allottees’ had not paid installments in time, and they (OPs) are trying to complete it. Even, complainant paid installment belatedly. Vide letter dated 26.04.2017 Annexure C-8 (along with appendix A to D); OPs offered possession of flat in question to complainant after delay of more than 3 years and 5 months and that too with many illegalities and many pending/incomplete works which shall take at least 6 months or more to complete and he was directed to clear all outstanding dues.
3. It is pleaded that OPs increased super area from 2060 sq. ft. to 2145 sq. ft. unanimously without consent or informing complainant. It is alleged, primarily on various counts that conduct of OPs proves no planning of project; intention of OPs at initial stage appears to extract money from as many buyers by making false promises. This amounts to deficiency in service and attract provisions of IPC for committing fraud. Complainant made entire payment against total consideration as demanded, except last installment as enshrined in agreement and OPs failed to give possession to him complete in all respect. Inter alia on these pleas, by asserting cause of action; this complaint has been filed to direct OPs; (i) to hand over physical possession of unit A-3/801 at the earliest, complete in all respect in consonance with Flat Buyer Agreement dated 27.06.2012 Annexure C-1 after withdrawing all unfair demands raised by OPs in possession offer letter Annexure C-8 and defects and then to re-issue fresh possession offer letter, after completing flat with all amenities, (ii) to pay interest @24% p.a. (i.e. same rate charged/applicable to complainant in case of delay in payment of installment by complainant even for a single day), (iii) Award Rs.10,00,000/- as compensation for causing financial risk, hardship, mental agony etc. and to pay Rs.5,00,000/- on account of deficiency in service and (iv) to pay Rs.75,000/- as litigation expenses. Entire text is supported by affidavit of complainant.
4. Upon notice, OPs in their defence have asserted in preliminary objection that: residential group housing project. Shree Vardhman Gardenia Sector-10, Sonepat has been developed by it on piece of land measuring 14.03 acres situated in revenue estate of Vill. Raipur, Sector-10, Tehsil & Distt. Sonepat, under licence No. 269 of 2007 dated 04.12.2007 granted by Town and Country Planning, Haryana. Phase of project, in which flat of complainant is situated, has already been completed and ‘occupancy certificate’ in respect thereof has been granted by office of Town and Country Planning, Haryana. Flats have been handed over to respective allottees’. Conveyance deed has been registered in their favour. Vide Flat Buyer Agreement dated 27.06.2012 executed between complainant and OPs, complainant agreed to purchase Flat No. 801 on 8th Floor in Tower A3. Tentative super area of flat was 2060 sq. ft. which was subject to change. Complainant, in addition to basic sale price was liable to pay additional charges towards: club membership fee, car parking charges, EDC & IDC, EEC & FFC, power backup charge, electricity meter charges, maintenance charges etc. and to deposit interest free maintenance security and sinking fund as per agreement. Complainant breached his obligation to pay demands of installments within agreed time and several installments were paid belatedly. OPs vide letter dated 26.04.2017, offered possession of flat to complainant (prior to filing of this complaint) and raised final demand of money payable by him giving a clear and unambiguous break up on the amount demanded. However, complainant has not so far taken possession after payment of outstanding dues. He may still approach OPs and take possession of flat in question after settlement/payment of all outstanding dues. OPs through said letter (26.04.2017) called upon complainant to submit necessary documents as well as to pay requisite stamp duty to enable it to execute conveyance deed in his favour. Since, final super area of flat came to be 2145 sq. ft. against tentative super area of 2060 sq. ft.; demand of BSP and other charges in letter dated 26.04.2017 was raised according to final super area i.e. 2145 sq. ft. Allegation raised by complainant in relation to increase of super area unanimously, without his consent or without informing him is absurd and untenable. Allegations of fraud, misappropriation, mismanagement etc. are absurd and without any substance. OPs have already acted within their rights under contractual terms agreed between parties and not committed any deficiency in service and not indulged in any unfair trade practice. It is complainant only, who breached his contractual obligations by not paying timely installments as per agreed payment schedule. Complainant is bound by terms and conditions contained in agreement dated 27.06.2012. He executed contract, out of his free will and accord, and without any undue influence. OPs were, not at all, in a dominant position. At the time of booking; Rs.4,22,608/- was paid to OPs and not Rs.4,09,941/- as alleged. Thereafter, complainant paid Rs.5,30,970.13 on 17.05.2013. OPs raised subsequent demand by its demand letters, including demand letter dated 15.10.2013 & 18.12.2013, and said demands were paid by complainant. It is denied that there was delay on part of OPs and complainant claimed interest on account of said delay. Time period indicated in the agreement dated 27.06.2012 was tentative and subject to various factors including timely payment of installments by allottees’. Complainant has miserably failed to make timely payment and defaulted in his contractual obligations. OPs received notice dated 15.08.2016 sent by complainant, allegations made therein against OPs were not true and refuted vide letter dated 29.12.2016. It is denied that there was delay in offering possession. Inter alia on these basic pleas and by expressly denying other allegations; dismissal of complaint has been prayed. Text of written version of OPs is supported by affidavit of Bijender Jain S/o Sh. B.S. Jain-authorized representative of OPs.
5. Parties to this lis; led their respective evidence. Learned counsel appearing for complainant through his statement dated 23.11.2021 has filed affidavits Ex. CW-1/A and Ex. CW2/A of Dinesh-complainant and Umesh Gupta Architect and submitted documents Ex.C-1 to C-24 as evidence of complainant and closed the same. On behalf of OPs; his duly sworn affidavit- Ex.OPW1/A of Sachin Jain-authorized representative of OPs has been placed on record on 22.12.2022 by learned counsel through his statement dated 22.12.2022. OPs also placed on record: documents Ex.OP-1 to Ex.OP-9 on 22.12.2022 and closed evidence through statement dated 22.12.2022 of its counsel.
6. Complainant filed brief synopsis on 07.11.2023. OPs filed written arguments on 21.11.2023.
7. Case of complainant precisely is that complainant has paid Rs.46,66,029/- till 09.01.2014 which includes: 92% of flat payment; 100% payment for covered car parking amounting to Rs.2.00 lacs, 100% payment for EDC & IDC amounting to Rs.4,63,500/- and 100% payment for club membership amounting to Rs.75,000/-. Flat Buyer Agreement dated 27.06.2012 was executed, as per which, 18 months period reckoning from date of booking with 6 months grace period was prescribed for possession, which was to be offered before 26.06.2014. Offer of possession was given vide letter dated 26.04.2017 to which complainant submitted reply dated 10.05.2017 showing details of incomplete and pending works, demand of illegal documents for confirmation of flat area, size of lift and other services and to illegal/excessive unlawful demand on various heads of payment. Flat area has been increased to 2145 sq. ft. without providing any proof. Complainant has also raised grievance upon additional amount charged in name of EDC & IDC and upon EEC/FFC charges. No solar water heating systems have been installed in any of the building and there is no fire control room in the complex. Lift provided by builder is small in size as compared to size given in sanctioned drawing. There is no fire door in lift lobby in any of the block. Modular kitchen work is pending. Basic amenities like covered car parking, recreation club are still incomplete.
8. In written submissions filed by OPs it is stated that: project “Shree Vardhman Gardenia” Sector-10, Sonepat was developed by OPs in two phases. Phase-I comprised of 8 towers and “occupancy certificate” in respect of same was obtained on 13.08.2013. Phase-2 comprises 11 towers and ‘occupancy certificate’ for same was obtained on 02.03.2017. On 02.03.2017, tower A-3 was complete in all respects. Flat Buyer Agreement between complainant and OPs was executed on 27.06.2012 as per which possession was to be delivered within 24 months (18 months-actual + 6 months-grace period) from the date of booking. 24 months period reckoning from 27.06.2012 expired on 27.06.2014. Subject flat of complainant is in tower-A3 bearing No. 801 which was in phase-2 in respect of which ‘occupancy certificate’ was granted on 02.03.2017. Offer of possession of subject flat was given to complainant on 26.04.2017. Project in which subject flat of complainant is located has more than 90% occupancy. Even prior to grant of occupancy certificate; complainant has been residing in subject project (in B-2, 801) for more than about 1½ years which is in his wife’s name. Stay of complainant since year 2015 in same project is evident of fact that project was habitable and complete. Complainant never opposed and disputed terms of Flat Buyer Agreement. Payment at the time of offer of possession was to be made, after offer was given on 26.04.2017. Complainant has still not paid. Grant of occupancy certificate certifies that building is constructed in accordance with prescribed rules. Whether ‘completion certificate’ in respect of project in question, has been obtained or not is not relevant. Completion certificate certifies that all construction in project is complete. OPs under Flat Buyer Agreement dated 27.06.2012 did not guarantee possession of flat after completion of all construction of subject project and that cannot be the case of complainant. Taxes and other charges like service tax etc. demanded in offer of possession, alleged to be illegal, was agreed to be paid as per clause 3(a)(xi). As per this clause; basic cost of flat does not include any levies taxes like service tax, turn over tax/VAT and other levies/taxes imposed by Central/State Govt./any authority. Cost towards increased super area of flat alleged to be illegal, was agreed, to be paid at the time of offer of possession as per clause 2(a) of Flat Buyer Agreement. Car parking charges, EDC/IDC, EEC/EFC charges, power back up charges, alleged to be illegal, were agreed to be paid by complainant as per clause 2(e), 2(f), 2(g), 2(h) and 2(i) respectively of Flat Buyer Agreement. Complainant has only provided onetime payment of Rs.75,000/- towards club facility and not reckoning annual club charges and other functioning fee which is not been taken, since club is not functional.
9. On subjectively and critically analyzing written synopsis submitted by both parties, it is admitted that Flat Buyer Agreement dated 27.06.2012 was entered into between parties to this lis. Terms and conditions of Flat Buyer Agreement would legally constitute a binding contract between both parties. Undisputedly, OPs have received Rs.46,66,029/- till 09.01.2014 from complainant in furtherance to unit allotted to complainant in Tower-A3 bearing No.801. This payment, so received by OPs, is admitted from perusal of document appended along with the written version by OPs. Even, document Ex.C-15 which is customer ledger statement of OPs and concerning complainant, too reflects that as on 16.08.2016; OPs have received Rs.46,66,029/- from complainant. Hence, there remains no dispute, so far as, payment received by OPs in relation to Flat No. A-3/801 is concerned. As per terms and conditions of Flat Buyer Agreement dated 27.06.2012, possession of flat was to be delivered within 24 months (18 months actually agreed plus 6 months grace period), which admittedly expired on 27.06.2014. It is thus established that during the agreed span of period; possession of allotted flat was not offered to complainant. ‘Occupancy Certificate’ in relation to Tower-A3 was obtained by OPs on 02.03.2017 and thereafter offer of possession was given to complainant on 26.04.2017.
10. Admittedly, there is no evidence that: ‘completion certificate’ of project in question, too has been obtained by OPs. There is hall mark of difference between ‘occupation certificate’ and ‘completion certificate’. ‘Completion certificate’ signifies that construction is project is complete in all respects, whereas ‘occupation certificate’ does not signify as such. In legal parlance, completion certificate always prevail over occupancy certificate. How can, without obtaining completion certificate; offer of possession can be given to any buyer. There can be no exception so far as this case is concerned on that front. Meaning thereby, nearly after 2 years and 10 months of the agreed deadline; OPs actually offered possession of flat to complainant on 26.04.2017. Since, by 02.03.2017; there was no completion certificate regarding project in question therefore stance of OPs that it offered possession of allotted flat to complainant on 26.04.2017 would become bereft of credence and it would stood traumatized. Having held as such, the offer of possession given to complainant by OPs on 26.04.2017, would be termed as farce. In any case, this intervening period of nearly 2 years and 10 months, and further time till date, must have created enough sordid conditions, accentuated by agony of intense magnitude and gravity for complainant to bear. This is obvious for the reason that complainant had already parted with huge chunk of money (Rs.46,66,029/-) by the time; offer of possession of flat was given to him on 26.04.2017. OPs must have enriched itself/themselves with complainant’s money, in manifold terms. Nothing can be vulnerable for complainant, than above state of facts which would have definitely added, to the tale of woes of complainant’s physical and mental agony; the element of which is ex-facie deciphered from material available on record. Hence, it is established that offer for delivery of possession of flat was unduly delayed by OPs, beside, this offer being legally unsustainable as well.
11. There may be thousands of reasons in that context confronting OPs, but complainant cannot be expected to have any concern with same. OPs cannot be allowed to breach agreed terms and conditions of Flat Buyer Agreement dated 27.06.2012 regarding period of completion of project with such impunity as it has been so done in this case by it. When project is not complete within time, as agreed upon, then belated offer of possession of flat given to complainant certainly amounts to deficiency in service of OPs towards complainant particularly, when there is no completion certificate obtained by OPs in relation to project in question. How come, with enormous delay of nearly 2 years and 10 months and there being no explanation forthcoming from OPs regarding circumstances which palpably caused delay in completion of project and compelled it to serve offer of possession belatedly on 26.04.2017, would be termed to be its justified act. It is quite mysterious and mystifying circumstance and OPs have miserably failed to unveil this mystery in order to justify its admitted delay in offering of possession of flat to complainant. To the contrary, it proves that OPs have indulged in ‘unfair trade practice’ being in a dominating position. Complainant is well within his legal rights to claim reliefs, having been deprived of, not being put in possession of allotted flat. It is in these constrained circumstances, he had to knock the doors of this Commission.
12. Hence, as a sequel to critical analysis of relevant facets of this case, the inescapable conclusion is that: present complaint deserves to succeed against OPs. Accordingly, complaint stands allowed with directions that: (i) OPs to waive off illegal charges as well as charges of interest @24% p.a. on delayed payments and all other charges levied on complainant, (ii) OPs to re-issue offer of possession of apartment/flat No. 801, Tower-A3 to complainant, after ensuring for itself that it is complete in all respect and completion certificate of project has been duly obtained. Since, super area of allotted flat has been increased from 2060 sq. ft. to 2145 sq. ft. so, OPs are at liberty to safely demand due increase in price, on account increase in super area, from complainant, over and above, the price already paid by him (Rs.46,66,029/-) with 9% interest p.a. from date of re-issue of offer of possession to complainant, (iii) OPs would pay simple interest @9% p.a. to complainant on total amount deposited by him i.e. Rs.46,66,029/- from the date of last deposit, till realization, within period of one month from date of this order, on account of proved delay, till date, in putting complainant in possession of allotted flat. Since, grant of simple interest @ 9% p.a. to complainant, can be legally viewed as compensation, therefore, it is held that grant of simple interest @ 9% p.a. to complainant on deposited amount as referred above, would suffice his claim regarding compensation on account of deficiency in service on the part of OPs towards him, harassment and mental agony suffered by him and also regarding his claim for litigations expenses. In case, OPs commit default in complying with directions contained in this order, then rate of simple interest would escalate from 9% p.a. to 12% p.a. from the date of expiry of one month reckoning from date of this order, till realization of entire amount. It is also made clear that for non-compliance of directions; provision of Section 72 of Consumer Protection Act would be attracted.
13. Application(s) pending, if any stand disposed of in terms of the aforesaid judgment.
14. Copy of this judgment be provided to parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The judgment be uploaded forthwith on the website of the Commission for the perusal of the parties.
15. File be consigned to record room.
Date of pronouncement: 16th January, 2024.
Naresh Katyal
Judicial Member
Addl. Bench-II
