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. 386 of 2017
IN THE MATTER OF: -
Mahender Singh Saroha S/o Sh. Chotte Lal Saroha, R/o C-11, Pacham Nagar, 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; explained project and informed him that they (OPs) have already got building plan sanctioned and got all approval from concerned Govt. Authority. They showed construction activities in Tower-B3 going in full swing at 7th/8th floor and assured complainant that construction on site going in full swing in many other towers and possession will be given within stipulated period of 36 months from date of booking as mentioned Clause 10 (a) of Flat Buyers Agreement. Possession of flat was to be handed over to complainant by December-2015. Complainant, lured by assurances of executive of OPs, booked residential flat of 3 bedrooms (Flat No. 801 on 8th Floor) in Tower-B3 having approx. 1615 sq. ft. area, equivalent to 150.09 sq. mtr., by paying Rs.3,09,270/- as booking amount in complex named: Shree Vardhman Gardenia Sector-10, Sonepat, which include Rs.3.00 lacs as basic amount and Rs.9,270/- as service tax on it. Receipt dated 03.12.2012 is Annexure C-1. Flat Buyer Agreement-Annexure C-2 was executed on 11.12.2012. As per terms and conditions of agreement, basic price of flat in question was Rs.33,91,500/-. 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. Complainant opted for possession linked payment plan, wherein 50% of total amount has to be paid in advance and balance amount is to be given at the time of taking possession.
2. As per clause 10(a) of agreement dated 11.12.2012; it has been stipulated that construction of flats is likely to be completed within period of 36 months from the date of booking with grace period of 6 months. Complainant further paid Rs.19,47,479/- to OPs vide receipt Annexure C-3 which include basic price Rs.13,95,750/-, covered car parking Rs.1,00,000/-, club membership Rs.37,500/-, EDC & IDC Rs.3,63,375/-, Service Tax on Basic Rs.43,129/-, Service Tax on other charges Rs.4,635/- and Service tax on car parking Rs.3,090/-. Complainant was informed that building plan has been got sanctioned and all approval from govt. authorities/concerned department have already been taken. After completion of stipulated time period; complainant approached office of OPs and saw details regarding completion of project. Letter dated 29.07.2016 was issued by OPs to complainant informing that construction was going in full swing and possession of flat will be given shortly. Complainant went at site, on his own, to check construction work. To his shock; major construction work was still pending. Work of covered car parking had not even started. Complainant informed OPs that real picture is contrary to claims made in letter dated 29.07.2016.
3. Letter dated 11.04.2017 was issued by OPs vide which, for the first time, possession of flat was offered to complainant i.e. after delay of more than 17 months and that too with many illegalities and many pending/incomplete works. Construction was, nowhere even close to completion. Complainant was directed to clear outstanding dues in compliance with terms and conditions enshrined by Flat Buyers Agreement. List of outstanding dues/charges were appended (Appendix A to D) with letter dated 11.04.2017 for payment under various heads. Details with regard to stamp duty legal/administration charges for execution and registration of conveyance deed were informed to him vide Appendix C and he was directed to discharge his obligations by 11.05.2017. Complainant submitted reply dated 16.04.2017 to possession offer letter. OPs increased super area from 1615 sq. ft. to 1695 sq. ft. unanimously, without consent of complainant and informing or giving him any proof. It is pleaded that OPs have not obtained required completion and occupation certificate or obtained these, callously with corrupt govt. officials.
4. OPs have mentioned in clause 10 c of agreement that: it shall be liable to pay token compensation, in case of delay in possession @53.80 per sq. mtr. of super area of flat, per month, for period of delay. OPs exploited complainant by not providing possession of flat even after more than period of 01 year and 5 months. 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 B-3/801, complete in all respect in consonance with Flat Buyer Agreement dated 11.12.2012 Annexure C-2 after withdrawing all unfair demands raised by OPs’ possession offer letter Annexure C-7 and defects and then to re-issue fresh possession offer letter, after completing flat with all amenities in all respects, (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.
5. 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 deeds have been registered in their favour. Vide Flat Buyer Agreement dated 11.12.2012 executed between complainant and OPs, complainant agreed to purchase Flat No. 801 on 8th Floor in Tower B3. Complainant executed same out of his own will and accord without any undue influence or coercion. Time period indicated in the agreement was tentative, subject to various factors including timely payment of installment by allottees’. Various allottees’ have miserably failed in making timely payment. Tentative super area of flat was 1615 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, by not releasing outstanding dues of OPs has failed to fulfill his part of obligation and breached the vital essence of Flat Buyer Agreement. OPs, after completing construction, applied to Department of Town and Country Planning for grant of occupation certificate and department granted ‘occupancy certificate’ vide its memo dated 02.03.2017. OPs vide letter dated 11.04.2017, offered possession of flat to complainant and raised final demand of money payable by him giving clear and unambiguous break up on amount demanded. Refusal on the part of complainant to pay balance dues and to take possession on alleged grounds is clear breach of his contractual obligation. Complainant did not, so far, take possession, after paying outstanding dues. He may still approach OPs; take possession of flat after settlement/payment of all outstanding dues. OPs through said letter (11.04.2017) 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 1695 sq. ft. against tentative super area of 1615 sq. ft.; demand of BSP and other charges in letter dated 11.04.2017 was raised according to final super area i.e. 1695 sq. ft. OPs did not give any false or misleading claim in any advertisement published for project in question. 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 the parties and not committed any deficiency in service and not indulged in any unfair trade practice. Complainant is bound by terms and conditions contained in agreement dated 11.12.2012. OPs were, not at all, in a dominant position. Specific stance of complainant pleaded in para No. 10 of complaint regarding payment of Rs.19,47,479/- by him, as per details mentioned in that para, has not been specifically denied by OPs, while submitting its reply either in para 10 of its defence, or anywhere else in its defence. It is denied that there was delay of 17 months in offering possession as alleged by complainant. 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.
6. 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 Mahender Singh-complainant and Umesh Gupta Architect and submitted documents Ex.C-1 to C-17 as evidence of complainant and closed the same. On behalf of OPs; 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-8 on 22.12.2022 and closed evidence through statement dated 22.12.2022 of its counsel.
7. Complainant filed brief synopsis on 07.11.2023. OPs filed written arguments on 21.11.2023.
8. Case of complainant precisely is that: he paid Rs.41,64,999/- as evident from receipt Ex.C-1 dated 03.12.2012 amounting Rs.3,09,270/-; receipt Ex.C-3 dated 16.01.2013 for Rs.19,47,479/- and receipt Ex.C-15 dated 28.06.2017 for Rs.19,08,250/-. These payments, include 100% payment for covered car parking amounting to Rs.2.00 lacs made on 16.01.2013 and 28.06.2017; 100% payment for EDC & IDC amounting to Rs.3,63,375/- made on 16.01.2013 and 100% payment for club membership amounting to Rs.75,000/- on 16.01.2013 and 28.06.2017. Flat Buyer Agreement dated 11.12.2012 was executed, as per which; 36 months period reckoning from date of booking with 6 months grace period was prescribed for completion and possession. Offer of possession of flat in question was given vide letter dated 11.04.2017 wherein OPs demanded interest @24% p.a. Flat area has been increased from 1615 sq. ft. to 1695 sq. ft. without providing any proof. Complainant has also raised grievance upon additional amount in name of EDC & IDC and upon EEC/FFC charges. There is no fire control room in the complex. Lift provided is small in size as compared to size given in sanctioned drawing. There is no door in lift lobby.
9. 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 B-3 was complete in all respects. Flat Buyer Agreement between complainant and OP was executed on 11.12.2012 as per which possession was to be delivered within 42 months (36 months-actual + 6 months-grace period) from date of booking. 36 months period from 11.12.2012 expired on 11.06.2016. Subject flat of complainant is in tower-B3 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 11.04.2017. Project in which subject flat of complainant is located has more than 90% occupancy. 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 11.04.2017. Complainant has still not paid it. Grant of ‘occupation certificate’ certifies that building is constructed in accordance with prescribed rules and is safe for occupancy and thus permits occupancy. 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 11.12.2012 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 provided one time 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.
10. On subjectively and critically analyzing the written synopsis submitted by both parties, it is admitted that Flat Buyer Agreement dated 11.12.2012 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.41,64,999/- from complainant in furtherance to unit allotted to complainant in Tower-B3 bearing No.801. This payment, (Rs.41,64,999/-) so received by OPs, is proved from perusal of receipt Ex.C-1 dated 03.12.2012, receipt Ex.C-3 dated 16.01.2013 and receipt Ex.C-15 dated 28.06.2017. As per terms and conditions of Flat Buyer Agreement dated 11.12.2012, possession of flat was to be delivered within 42 months (36 months actually agreed plus 6 months grace period), which admittedly expired on 11.06.2016. 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-B3 was obtained by OPs on 02.03.2017 and thereafter offer of possession was given to complainant on 11.04.2017. It is established that offer of possession has been given after expiry of 10 months of agreed deadline date i.e. 11.06.2016.
11. 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 of 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 10 months of agreed deadline; OPs actually offered possession of flat to complainant on 11.04.2017. Since by 02.03.2017; there was no completion certificate regarding project in question therefore the stance of OPs that it offered possession of allotted flat to complainant on 11.04.2017 would become bereft of credence and it would stood traumatized. Having held as such the offer of possession given to complainant by OPs on 11.04.2017 and would be termed farce. In any case, this intervening period of 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. Significantly, amount through two receipts Ex.C-1, Ex.C-3 were paid to OPs before date of offer of possession, while amount through another receipt Ex.C-15 was paid after date of offer of possession. 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 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.
12. 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 11.12.2012 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 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 11.04.2017, 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.
13. 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-B3 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 1615 sq. ft. to 1695 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.41,64,999/-) 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.41,64,999/- 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.
14. Application(s) pending, if any stand disposed of in terms of the aforesaid judgment.
15. 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.
16. File be consigned to record room.
Date of pronouncement: 16th January, 2024.
Naresh Katyal
Judicial Member
Addl. Bench-II
