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. 385 of 2017
IN THE MATTER OF: -
- Pradeep Kumar Hooda S/o Sh. Tara Chand Hooda,
- Rekha Rani Hooda, W/o Sh. Pradeep Kumar Hooda,
Both residents of Gali No.-3, Jeevan Vihar, Devru Road, Sonepat, Haryana. …..Complainants
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 complainants.
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 2011, executive of OPs approached complainants; explained project and informed them that they (OPs) have already got building plan sanctioned and got all approval from concerned Govt. Authority. They showed construction activities in Tower-A3 and in many other towers, going in full swing and assured complainants that possession will be given within stipulated period of 18 months from date of booking as mentioned Clause10 (a) of Flat Buyers Agreement. Complainants, lured by assurances of executive of OPs, booked residential flat of 3 bedrooms (Flat No. 203 on 2nd Floor) in Tower-A3 having approx. 1630 sq. ft. area, equivalent to 151.49 sq. mtr., by paying Rs.3,21,018/- on 31.10.2011 as booking amount in complex named Shree Vardhman Gardenia Sector-10, Sonepat. Flat Buyer Agreement-Annexure C-2 was executed on 23.11.2011. As per terms and conditions of agreement, basic price of flat in question was Rs.31,29,600/-. 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. Complainants opted for construction linked payment plan.
2. As per clause 10(a) of agreement dated 23.11.2011; it has been stipulated that construction of flats is likely to be completed within period of 36 months from date of booking with grace period of 6 months. Complainants deposited Rs.8,77,105/- with OPs on 23.05.2012. Receipt in this regard is Annexure C-5. OPs sent letter dated 20.08.2012 demanding Rs.9,73,769/- which include interest of Rs.66,147/- to which complainants protested and OPs rejected their claim. In year 2014, complainants visited at site and plan was, nowhere near completion. Even after expiry of two years when there was no sight of getting possession of flat; complainants issued notice dated 22.09.2016 and stated that there is undue delay in handing over flat despite that more than 92% of basic and 100% car parking, recreation club and other charges have been paid and almost after 22 months of target date, building is not ready. To their surprise; an email dated 27.04.2017 was received by them in which it was categorically stated that they (OPs) have received ‘occupancy certificate’ and are attaching offer of possession dated 26.04.2017. Complainants were directed to remit their dues so that physical possession could be offered to them. List of outstanding dues were appended with letter dated 27.04.2017 as Appendix A to D under various heads of payments. Complainants were directed to discharge their obligation by 27.05.2017.
3. OPs increased super area from 1630 sq. ft. to 1695 sq. ft. unanimously, without their consent or informing them. Possession was offered to them after delay of almost 31 months, and that too, with many illegalities and many pending/incomplete works. Construction was nowhere even close to completion. Complainants demanded ‘occupancy certificate’ but same was not supplied to them. OPs, due to its dominant position first got agreement executed; thereafter without giving physical possession of flat complete in all respects, offer of possession given to complainants show their (OPs) illegal, arbitrary and mala fide intention, amounting to deficiency in their service and unfair trade practice. They exploited complainants by not providing possession of flat even after delay of nearly 3 years. 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-3/203 at the earliest, complete in all respect in consonance with Flat Buyer Agreement dated 23.11.2011 Annexure C-2 after withdrawing all unfair demands raised by OPs in possession offer letter Annexure C-10 and defects and then 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 complainants in case of delay in payment of installment by complainants 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-Pradeep Kumar Hooda.
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 complainants is situated, has already been completed and ‘occupancy certificate’ in respect thereof has been granted by office of Town and Country Planning, Haryana vide its memo dated 02.03.2017. Flats have been handed over to respective allottees’. Conveyance deed has been registered in their favour. Vide Flat Buyer Agreement executed between complainants and OPs, complainants agreed to purchase Flat No. 203 on 2nd Floor in Tower A3. Tentative super area of flat was 1630 sq. ft. which was subject to change. Complainants, in addition to basic sale price were 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. Complainants breached obligation by not making timely payment of installment as per agreed payment schedule. OPs, vide letter dated 26.04.2017, offered possession of flat to complainants and raised final demand of money payable by complainants giving a clear and unambiguous break up on amount demanded. OPs, through said letter (26.04.2017) called upon complainants to submit necessary documents, as well as, to pay requisite stamp duty to enable it to execute conveyance deed in their favour. Since, final super area of flat came to be 1695 sq. ft. against tentative super area of 1630 sq. ft.; demand of BSP and other charges in letter dated 26.04.2017 was raised according to final super area i.e. 1695 sq. ft. Allegation raised by complainants in relation to increase of super area unanimously, without their consent or informing them, 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. Complainants only have breached contractual obligations by not paying timely installments as per agreed payment schedule. Time period indicated in the agreement was tentative and subject to various factors including timely payment of installments by allottees’. Complainants did not make payment despite being contractually liable to pay the same. Complainants are bound by terms and conditions contained in agreement dated 23.11.2011 and executed the same after reading and understanding the terms thereof. OPs were, not at all, in a dominant position. OPs demanded Rs.14,45,624/- on 30.04.2012, however complainants paid Rs.8,77,105/-. Complainants, may still approach OPs and take possession of flat after settlement/payment of outstanding dues. It is denied that there was delay of 31 months or 29 months in offering possession as alleged. 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 complainants through his statement dated 23.11.2021 has filed affidavits Ex. CW-1/A and Ex. CW2/A of Pradeep Kumar Hooda-complainant and Umesh Gupta Architect and submitted documents Ex.C-1 to C-27 as evidence of complainants 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-10 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 complainants precisely is that they have paid Rs.38,69,822/- which includes: 100% payment for covered car parking amounting to Rs.2.00 lacs, 100% payment for EDC & IDC amounting to Rs.3,66,750/- and 100% payment for club membership amounting to Rs.50,000/-. Flat Buyer Agreement dated 23.11.2011 was executed, as per which, 36 months period reckoning from date of booking with 6 months grace period was prescribed for possession, which was to be offered before 31.10.2014. Offer of possession was given through OPs’ letter dated 27.04.2017. Flat area has been increased to 1695 sq. ft. from 1630 sq. ft. without providing any proof. Through offer of possession dated 27.04.2017, OPs demanded interest on late payment of Rs.96,053/- @24% p.a. Complainants have 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 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.
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 complainants and OPs was executed on 23.11.2011, 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 reckoning from 23.11.2011 expired on 23.05.2014. Subject flat of complainants is in tower-A3 bearing No. 203 which was in phase-2 in respect of which ‘occupancy certificate’ was granted on 02.03.2017. It guarantees that building safe for occupancy and permits occupancy. Grant of ‘occupancy certificate’ certifies that building is constructed in accordance with prescribed rules. Offer of possession of subject flat was given to complainants on 26.04.2017. Project in which subject flat of complainants is located has more than 90% occupancy. Even, prior to grant of occupancy certificate; complainants have been residing in subject project by living on rent in Flat/Unit No. D-3/402 in same project for about 3-4 years; thereafter since year 2020, they are living in B-2/1001. Stay of complainants in same project is evident of fact that project was habitable and complete. Complainants 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. Complainants have still not paid it. 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. 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 complainants as per clause 2(e), 2(f), 2(g), 2(h) and 2(i) respectively of Flat Buyer Agreement. Complainants have 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 23.11.2011 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.38,69,822/- from complainants in furtherance to unit allotted to complainants in Tower-A3 bearing No.203. This payment, so received by OPs, is admitted from perusal of document viz. Appendix A and Appendix B attached with document Ex.C-18 which is offer of possession given by OPs to complainants. As per terms and conditions of Flat Buyer Agreement dated 23.11.2011, possession of flat was to be delivered within 42 months (36 months actually agreed plus 6 months grace period), which admittedly expired on 23.05.2014. It is thus established that during the agreed span of period; possession of allotted flat was not offered to complainants. ‘Occupancy certificate’ in relation to Tower-A3 was obtained by OPs on 02.03.2017 and thereafter offer of possession was given to complainants on 26.04.2017/27.04.2017.
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 11 months of the agreed deadline; OPs actually offered possession of flat to complainants on 26/27.04.2017. 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 complainants on 26/27.04.2017 would become bereft of credence and it would stood traumatized. Having held as such the offer of possession given to complainants by OPs on 26/27.04.2017, would be termed as farce. In any case, this intervening period of nearly 2 years and 11 months, and further time till date, must have created enough sordid conditions, accentuated by agony of intense magnitude and gravity for complainants to bear. This is obvious for the reason that complainants had already parted with huge chunk of money (Rs.38,69,822/-); before offer of possession of flat was given to them on 26/27.04.2017. OPs must have enriched itself/themselves with complainants’ money, in manifold terms. Nothing can be vulnerable for complainants, than above state of facts which would have definitely added, to tale of woes of complainants’ 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 complainants cannot be expected to have any concern with same. OPs cannot be allowed to breach agreed terms and conditions of Flat Buyer Agreement dated 23.11.2011 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 complainants certainly amounts to deficiency in service of OPs towards complainants 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 11 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 26/27.04.2017, 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. Complainants are well within their legal rights to claim reliefs, having been deprived of, not being put in possession of allotted flat. It is in these constrained circumstances, they 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 complainants, (ii) OPs to re-issue offer of possession of apartment/flat No. 203, Tower-A3 to complainants, 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 1630 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 complainants, over and above, the price already paid by them (Rs.38,69,822/-) with 9% interest p.a. from date of re-issue of offer of possession to complainants, (iii) OPs would pay simple interest @9% p.a. to complainants on total amount deposited by them i.e. Rs.38,69,822/- 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 complainants in possession of allotted flat. Since, grant of simple interest @ 9% p.a. to complainants, can be legally viewed as compensation, therefore, it is held that grant of simple interest @ 9% p.a. to complainants on deposited amount as referred above, would suffice their claim regarding compensation on account of deficiency in service on the part of OPs towards them, harassment and mental agony suffered by them and also regarding their 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
