STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

Date of Institution: 11.07.2018

                                                         Date of final hearing: 03.11.2023

Date of pronouncement: 14.12.2023

CONSUMER COMPLAINT No. 394 of 2018

IN THE MATTER OF: -

Ranjana Choudhary W/o Dr. Sunit Choudhary, R/o House No. B-991, Ansal Sushant City, Panipat, Haryana.                             …..Complainant

Versus

1. Splendor Landbase Ltd. through its Managing Director, Splendor Forum, 5^th Floor, Plot No. 3, Jasola, New Delhi.
2. Splendor Grande, through its Project Manager/authorized person Sector-19, Panipat, Haryana.             …..Opposite Parties

CORAM:             Naresh Katyal, Judicial Member

Argued by:-       Sh. Vivek Mohan, counsel for complainant.

Sh. Shobhit Phutela, counsel for opposite parties.

                                                ORDER

NARESH KATYAL, JUDICIAL MEMBER:

          Facts in complaint are: OPs launched Group Housing Project of the name & style “Splendor Grande”. Complainant agreed to purchase apartment in said project at base price Rs.44,96,250/-.  She paid Rs.10.00 lacs to OPs through two cheques viz. a) Cheque No. 012069 dated 19.01.2013, for Rs.5.00 lacs and b) Cheque No. 001152 dated 25.02.2013, for Rs.5.00 lacs.  At the time of booking residential apartment; she also submitted application in January-2013, for allotment, wherein she requested for provisional allotment of residential apartment No. 505, Tower A-4, having area of 1650 sq. ft. at 5^th floor, Splendor Grande.  OPs issued provisional allotment of residential apartment No. 505, Tower A-4 on 28.10.2013.  OPs raised demand of Rs.8,40,941/- vide demand letter dated 15.11.2013, complainant made payment of Rs.8,40,941/- to OPs vide cheque dated 15.12.2014.

2. Complainant and OPs entered into Apartment Buyers Agreement dated 05.03.2014, regarding purchase of residential apartment No. 505, Tower A-4.  Construction of Tower A-4, in which this unit No. 505 is located was to be completed, within period of 42 months from date of execution of agreement, along with six months grace period, thereafter.  In clause 11.11 of Apartment Buyers Agreement, it is mentioned that failure on the part of OPs to do so, would accrue the right in favour of complainant to seek refund along with interest @9% p.a.  Even though, absolutely no work had been under taken on the site; OPs continue to raise demand letters on the basis of “Construction Linked Plan”.
3. In January-2018, complainant received letter dated 17.01.2018, requesting her to change her allotment from Apartment No. 505, Tower A-4 to smaller sized apartment in Tower No. A-3/B1, which were nearing completion.  In said letter, it was stated specifically that: in absence of any response to said letter, OPs shall, unilaterally shift allotment from Tower A-4 to any available inventory in Tower A-3 or B1. Complainant responded to said letter through her letter dated 01.02.2018, thereby specifically refusing OPs request and stating that she did not intend to shift her booked Apartment to any other tower.  It is pleaded that: construction of Tower A-4 has not commenced till date and OPs are endlessly compelling her to shift her booked apartment, to escape their liability. Complainant filed Consumer Complaint No. 115 of 2018 and withdrew the same with liberty to avail efficacious remedy available under the law as per order of District Consumer Forum-Panipat dated 23.05.2018. 
4. It is pleaded that OPs are deficient in fulfilling all and any of their agreed obligations and duty as a service provider.  Complainant has put her hard earned money in project of OPs, which has been delayed without any due reason. She has been deprived of home by OPs, thereby causing her huge financial losses.  On these facts, by pleading cause of action she has filed this complaint for issuance of direction against OPs: to refund her the amount paid towards booking of residential Apartment No. 505, Tower A-4 along with interest @18% p.a. from date of deposit till actual realization; to pay her Rs.1,00,000/- due to inordinate delay on part of OPs in failing to handover possession of allotted unit to her; pay her Rs.20,000/- towards litigation charges.  Text of complaint is supported by affidavit dated 02.07.2018, of complainant.
5. Upon notice, OPs raised contest. In their written version, it is pleaded that complaint in not maintainable.  Complainant has suppressed true and material facts.  Commission has no jurisdiction to try and decided the complaint, in view of clause 34 of agreement dated 05.03.2014, vide which: all or any disputes arising out or touching upon or in relation terms of agreement, rights and obligations of parties, shall be amicably settled by mutual discussion through arbitration, to be appointed by Chairman-cum-Managing Director of Developer Company.  Complainant is not a consumer. She has filed complaint with ulterior motive and this Commission has no territorial and pecuniary jurisdiction.  It is admitted that opposite parties are Real Estate Developers and Group Housing Project- Splendor Grande was launched by it at Panipat.  It is pleaded that complainant approached site office of OPs at Sector-19-Panipat; showed her interest to book a flat in the high rise buildings, to be constructed by OPs. Terms and conditions were explained to her and she applied for apartment.  She signed terms and conditions of application form in token of its acceptance and correctness. She had knowledge that company has sole right and discretion to decide on location of building on project land.  It is mentioned that: dimensions, size and location of allotment, if any, may change and she shall have no objection to same. It is also mentioned that construction of apartment is yet to commence and company shall make the allotment of apartment, in due course of time subject to availability.
6. It is pleaded that total cost of apartment is Rs.57,48,000/- and payment made by complainant is a matter of record.  It is admitted that provisional allotment letter of residential apartment, was issued in accordance with terms of complainant’s application for same at the time of booking. It is also admitted that Apartment Buyers Agreement was entered between parties regarding Residential Apartment No. 505, Tower A-4 on 05.03.2014. It is pleaded that complainant understood and agreed that she has been made aware that company is still in process of developing said Group Housing Colony.  It was understood and agreed by her that: location, size, dimensions of said flat including its Super Area are tentative and subject to change.  It is pleaded as wrong that OPs had to complete construction within 42 months from execution of agreement dated 05.03.2014. As per clause 11.02 of agreement, it was clearly agreed that: company shall, under normal condition complete the construction of Tower in which the said unit is located within 42 months from the start of construction, or execution of agreement whichever is later, beyond which company shall be further entitled to grace period of another 6 months. Under clause 11.10 of agreement, it was confirmed by complainant that she has seen and accepted plans, designs, specifications etc. of said flat/said Group Housing Colony and fully aware that same was tentative and further authorizes developers (OPs) to effect suitable and necessary alterations/modifications in layout plan/building plan, designs/specifications as directed by Regulatory Authorities or otherwise necessitated by developer for any reason whatsoever.
7. It is denied that there was malafide intention of OPs.  Demands were sent to complainant as per schedule of payment agreed between parties. It is pleaded that construction of Tower A-4 was unduly stalled and could not be continued due to various reasons including non-payment of construction linked dues by various other allottees/applicants of flat in said tower as communicated to complainant from time to time.  OPs, in order to maintain good relation with complainant, offered her to take apartment of same size at same prize on same terms and condition in another adjacent Tower B1 or Tower A-3 which are/were nearing completion and located at better location, than Tower A-4.  It is denied that OPs are deficient in fulfilling their agreed obligations and breached their legal obligations. It is pleaded that there is no negligent, unwarranted and unresponsive behavior of OPs. By denying other allegations in complaint; its dismissal has been prayed.
8. Parties led evidence. Complainant tendered her duly sworn affidavit Ex.CW1/A towards her affirmative statement on oath and relied upon documents Ex.C-1 to Ex.C-10.  Her counsel closed her evidence, through his statement dated 05.11.2019.  OPs have tendered duly sworn affidavit Ex.OPW1/A of Manish Prakash-their authorized representative and also relied upon documents viz: Ex.OP-1 to Ex.OP-3.  Counsel for OPs closed OPs’ evidence through statement dated 05.05.2022.  Written arguments have been placed on record by complainant through her counsel. 
9. Learned counsel appearing for both parties, have been heard at length.  With their able assistance, entire record of this complaint too has been perused. On behalf of complainant, it is urged that deficiency in service of OPs towards complainant has been proved, unerringly through oral and documentary evidence brought on record.   It is urged that complainant has parted huge amount Rs.18,40,941/- which is proved from receipts Ex.C3 and Ex.C5.  Total basic price of Unit (Apartment No. 505, Tower A-4, measuring 1650 sq.ft.) was Rs.44,96,250/- as it is apparent from document Ex.C3 which is provisional allotment letter of this residential apartment, allotted to complainant.  It is further urged that OPs have failed to honor its legal obligation, as per terms and conditions of Apartment Buyers Agreement dated 05.03.2014 to complete construction of Tower A-4, within stipulated time agreed between parties in said agreement and to handover possession of provisionally allotted unit to her. Complainant, as per contention, is entitled to claim refund of amount deposited by her with OPs to the tune of Rs.18,40,941/- with interest.
10. Per contra, learned counsel for OPs has urged that there is no deficiency in service of OPs towards complainant.  Even if, OPs could not complete construction of Tower A-4 in its housing project, ‘Splendor Granade’ in which unit of complainant was located, yet OPs, as goodwill gesture offered residential apartment to complainant of same size and dimension, and at same price and on same terms and conditions, in its other projects Viz. Tower A-3/Tower B1 which were nearing completion. It is urged that cost of apartment provisionally allotted to complainant in Tower A-4 is Rs.57,48,000/- and construction of this Tower could not be completed, because of various reasons beyond control of OPs, as explained in duly sworn affidavit Ex. OPW1/A of OPs’ representative.  On these submissions, it is urged that complainant is not entitled to any relief of refund of deposited amount with interest thereon. 
11. Admittedly, Group Housing Project named “Splendor Grande” was floated by OPs.  Admittedly, complainant applied for residential unit in said project.  Admittedly, Apartment No. 505, Tower A-4 was provisionally allotted to complainant, vide document Ex.C2. Admittedly, Apartment Buyers Agreement-Ex.C6 dated 05.03.2014, was entered into between parties to this lis, with regard to Apartment No. 505, Tower A-4.  Admittedly, complainant has paid Rs.18,40,941/- towards cost of the unit/apartment No. 505, Tower A-4, provisionally allotted to her. Ex.C3 and Ex.C5 are the proofs regarding payment of this amount.
12. Clause 11.2 of the Apartment Buyers Agreements dated 05.03.2014, is explicit and unambiguous in nature.  As per this clause; OPs in normal conditions, shall complete construction of Tower within 42 months from start of construction or execution of agreement whichever is later beyond which developer shall further be entitled to grace period of another six months. In case in hand, admittedly construction of Tower A-4 was not completed either within stipulated period of 42 months or after expiry of grace period six months or even after expiry of reasonable proximate time thereafter. If, total period as per clause 11.02 of Apartment Buyers Agreement is counted strictly (4 years reckoning from 05.03.2014, i.e. 42 months-originally agreed plus 6 months grace period), then OPs were to complete construction of Tower A-4 and handover the possession of provisionally allotted unit (No. 505) to complainant by March-2018.  However, it was not done.
13. It is specific stand of complainant in her complaint (Para No. 13 thereof) that: construction of Tower A-4 has not commenced till date (date of filing of complaint which is 11.07.2018).  In her duly sworn affidavit Ex.CW1/A dated 04.11.2019, she has testified in Para 9 thereof that: absolutely no work had been undertaken on the site and likewise in para 12 thereof she has testified that construction of Tower A-4 has not been completed till date i.e. till 04.11.2019.  OPs, in its written version in Para 11 thereof have categorically admitted that construction of Tower A-4 was unduly stalled due to various reasons.  Some reasons in this context have been mentioned by OPs in the duly sworn affidavit dated 07.04.2022 of its representative, (Sh. Manish Prakash) which was filed in this Commission on 05.05.2022 by counsel for OPs.  Complainant has absolutely no concern with these quoted reasons. In any case, it is proved that there is breach of contractual obligation on the part of OPs and violation on its part of clause 11.2 of Apartment Buyers Agreement dated 05.03.20014. Complainant cannot be allowed to wait for indefinite period to claim possession of unit/apartment provisionally allotted to her. OPs cannot unilaterally force the complainant, to take alternative residential apartment of same size, at same price/cost and on same terms and conditions in Towers A-3/Tower B1 by putting offer to her, to that effect.
14. In wake of above, subjective discussion, this Commission is of firm opinion that OPs have created sordid conditions for complainant to face. Nothing can be more vulnerable to complainant than this situation, in which she has been made to land, on account of inept attitude of OPs.  She has parted with considerable amount of Rs.18,40,941/- in favour of OPs.  She has not derived any benefit despite paying this amount. To the contrary, OPs have used her money for securing wrongful gains for themselves and thus enriched themselves at the cost of complainant. This being the factual scenario; complainant is entitled to relief and to claim refund of amount of Rs.18,40,941/- deposited by her to OPs, with interest.
15. Issue regarding refund of amount and grant of interest thereon is no more res-integra.  Hon’ble Apex Court in case of Ms. Fortune Infrastructure (Now Known as Ms/ Hicon Infrastructure) & Anr. Vs. Trevour D’lima & Ors. Civil Appeal No(s).3533-3534 of 2017, decided on 12.03.2018 wherein it has been held in para 15 that:

“15. Moreover, a person cannot be made to wait indefinitely for the possession of the flats allotted to them and they are entitled to seek the refund of the amount paid by them, along with compensation.  Although we are aware of the fact that when 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 3 years would have been reasonable for completion of the contract, i.e. the possession was required to be given by last quarter of 2014.  Further there is no dispute as to the fact that until now there is no redevelopment of the property.  Hence, in view of the above discussion, which draw us to an irresistible conclusion that there is deficiency of service on the part of the appellants and accordingly the issue in answered.  When once this Court comes to the conclusion that, there is deficiency of services, then the question is what compensation the respondents/complainants is entitled to?”

16.    Likewise, Hon’ble Apex Court in case titled as Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor, in Civil Appeal No. 6044 of 2019 decided on 07.04.2022 with respect to the scope for grant of compensation and held that:

“We are of the opinion that for the interest payable on the amount deposited to be restitutionary and also compensatory interest has to be paid from the date of the deposit of the amounts.  The Commission in the Order impugned has granted interest from the date of last deposit.  We find that this does not amount to restitution.  Following the decision in DLF Homes Panchkula Pvt. Ltd Vs. DS Dhanda and in modification of the direction issued by the Commission, we direct that the interest on the refund shall be payable from the dates of deposit.  Therefore, the Appeal filed by purchaser deserves to be partly allowed.  The interest shall be payable from the dates of such deposits.

At the same time, we are of the opinion that the interest of 9% granted by the Commission is fair and just”.

17.    By following ratio laid down in above cited judgment; the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, in case titled as Haryana State Agricultural Marketing Board and Another Versus Nand Kishore, First Appeal No. 829 of 2019, decided on 18.09.2023 has passed order to refund the amount of Rs.61,63,268/- to complainant/respondent along with simple interest @9% p.a. from the respective date of deposit onwards, within period of one month, from the date of order.  In the event of default, the amount payable shall carry interest @12 % p.a. from the date of expiry of one month till realization of the entire amount.  Cost of litigation has been quantified as Rs.21,000/-.

18.    Above being the settled legal position; the issue of refund of Rs.18,40,941/- to complainant and rate of interest thereon, so posed in this complaint, is answered in favour of complainant and against OPs. Accordingly, this complaint is allowed.  Direction is issued to OPs to refund the amount of Rs.18,40,941/- to complainant along with simple interest @9% p.a. from respective date of deposit onwards, within period of one month, from the date of this order.   In the event of default, to comply with this direction; then rate of interest would escalate from 9% p.a. to 12% p.a. from the date of expiry of one month till realization of the entire amount. Complainant has suffered harassment and mental agony for no fault on her part, for long period. Thus, she deserves some reasonable amount of compensation as well.  Ends of justice would meet, if sum of Rs.21,000/- is awarded to complainant, towards compensation for harassment and mental agony, to be paid by OPs with simple interest @ 9% p.a. from the date of filing of complaint till realization. Complainant is also entitled to the cost of litigation which is quantified at Rs.21,000/- to be paid by OPs. It is made clear that amount awarded towards cost to complainant will not carry any interest.

19.    Application(s) pending, if any stand disposed of in terms of the aforesaid judgment.

20.    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.

21.    File be consigned to record room.

Date of pronouncement: 14^th December, 2023

                                                                                  Naresh Katyal       

                                                                                  Judicial Member

                                                                                 Addl. Bench-II