.….Opposite Party
CORAM: Hon’ble Mr. Justice T.P.S Mann, President.
Mr.Ram Singh Chaudhary, Judicial Member.
Present:- Ms.Simarpreet Kaur, Advocate for the complainants.
Mr.Manjinder Kumar , Advocate counsel for opposite party.
O R D E R
RAM SINGH CHAUDHARY, JUDICIAL MEMBER:
The brief facts given rise for the disposal of the present complaint are that complainants booked a plot bearing No. K-416 in Block-K having an area of 250 square yards through agent of the opposite party-TDI. Initially, the plot in question was booked by Smt. Neerja Bansal. On 05.10.2007, the plot was transferred. On 25.09.2007, buyer agreement was executed between the parties. The basic sale price of the plot was Rs.19,37,500/- per square yard and EDC amount of Rs.1,97,500/-. In total, the complainants had paid amount of Rs.24,86,013/- to O.P. in different phases. As per the agreement, the purchaser(s) shall be bound to start construction of the house with due sanction of the competent Authority within a period of 3 years from the date of intimation to take possession failing which it shall be in the sole discretion of the seller to extend the period of commencement of construction. They visited the site to see the development, but there was no proper development in the inner areas. O.P issued offer of possession vide letter dated 21.12.2011 in which O.P. demanded balance payments from them. The O.P. also demanded excessive amount of EDC, IDC, EEDC, misc. expenses and maintenance charges vide letters dated 20.10.2011 and 03.03.2017 from them. They demanded completion certificate from Haryana Town & Country Department and HUDA. As per letter sent by HUDA to Directorate of Town & Country Planning Haryana, decided about the EDC to be charged in Urban Estate Sonepat for the calendar year 2010 for development of a township. The O.P. demanded maintenance charges from 21.12.2011 till date alongwith interest after 01.04.2017. The opposite party illegally saddling the plot buyers with an interest on the late payment through various letters and as per the information released by Town and Country Planning Department of Haryana Government on 30.04.2017, the OP company has defaulted to the extent of Rs.27708.28 lakhs by not depositing EDC and EEDC amounts collected from their property buyers. On 18.11.2013, the OP company got a part completion certificate. The environment impact assessment report was submitted by the OP-company to the competent authority in January 2017. Thus, there was deficiency in service on the part of the O.P
2. Notice of the complaint was issued against the O.P. and the reply was filed, wherein preliminary objections were raised, in which, the complainants were not entitled for refund as per terms and conditions of the agreement. The OP company has offered the possession of the plot in question in accordance with law. The demand letter dated 21.12.2011 was issued in accordance with law. The basic price of the plot was Rs.19,37,500/-. The buyer agreement was executed between Smt. Neerja Bansal and OP company on 25.09.2007 qua residential plot No. K-416. The complainants were agreed to pay EDC, IDC and misc. charges as per the agreement. The complainants have failed to make timely payments and also failed to discharge their obligations under the agreement. The remaining averments made in the complaint were further denied and refuted. Others preliminary objections regarding concealment of material facts, Complainants are not consumer, territorial jurisdiction, etc were also raised and prayed for dismissal of the complaint.
3. When the complaint was posted for recording evidence of the parties, one of the complainant-Aditya Kalia -CW-1in his evidence has tendered the affidavit Ex.CW1/A vide which he has reiterated all the averments taken in the complaint and further tendered the documents Ex.C-1 to Ex.C-17 and closed his evidence.
4. On the other hand in order to rebut the evidence led on behalf of the complainants, the O.P. had also tendered the affidavit Ex.OPW1/A that of Mr.O.P.Gupta, Authorized representative and also tendered documents Ex.OP-1 to O.P.-9 and closed its evidence.
5. The arguments have been advanced by Ms.Simarpreet Kaur, the learned counsel for the complainants as well as Mr. Manjinder Kumar, the learned counsel for the opposite parties. With their kind assistance the entire record including documentary evidence as well as whatever the evidence had been led during the proceedings of the complaint had also been properly perused and examined.
6. As per the basic averment taken in the complaint and the reply filed thereto including the contentions raised by the learned counsel for the parties, the basic and foremost question which requires adjudication by this Commission is as to whether the present complainants are entitled to get refund of the amount, which they have already deposited?
7. While unfolding the arguments it has been argued by Ms. Simarpreet Kaur, the learned counsel for the complainants that as far as the executing the buyers agreement (Ex.C-1) is concerned, it is not in dispute. It is also not in dispute that the basic price of the plot was Rs.19,37,500/-. It is also not in dispute that total sum of Rs.24,86,013/- had been paid by the complainants to the O.P. As per the buyers agreement (EX.C-1) and the terms and conditions incorporated therein including, the possession complete in all respect was to be delivered to the complainants within stipulated period. However inspite of the fact that the complainants had paid the excess amount of total price of plot. The period within which, the possession of the plot was to be delivered had already been expired and under these circumstances the complainants had no other option, but, to seek the refund of the amount alongwith interest.
10. On the other hand, it has been argued by Mr.Manjinder Kumar, the learned counsel for the O.P. that the amount which the complainants had paid, was not paid as per the repayment schedule. There was a delay in making the payment of the amount. It is true that the documents were executed between the parties, which includes the buyers agreement, which contains all the terms and conditions for allotment of the plot, for payment of the installments, charging the interest for delayed payment and delivering of possession. On 21.12.2011, the OP has offered the possession of the plot and asked the complainants to pay the outstanding amount. However on one pretext or the other, the possession was not taken and now by taking the shelter of this Commission, the complainants seeks refund of the amount and infact this amount has already been invested in making all developmental activities. Thus, the complainants were not entitled for the refund of the amount as prayed for.
11. In view of the above submission and after careful perusal of the entire record, it is not in dispute that upon floating a project by the builder, plot was booked by the complainants through agent of O.P. for which total amount of Rs.24,86,013/- (Twenty Four lacs Eighty Six thousand and thirteen rupees only) had been paid as is evident Ex.C-2. It is also true that all the relevant documents were executed between the complainants with that of developer or O.P. including the buyers agreement (Exhibit C-1). As per delivery clause, the possession of the plot was to be delivered within the stipulated period. To the utter surprise of this Commission and is very pity that inspite of the fact that period of more than 12 years had expired, the possession of the plot has not been delivered by O.P. As such, there is a clear breach of terms and conditions of the buyers agreement on behalf of the O.P. It is the normal trend of the developers/O.P. that they would collect their hard earned money from the individuals and would invest the funds in other projects as a result thereof the project for which the investors have invested their hard earned money is not completed.
12. Since the opposite party cannot demand of EDC/IDC charges from the buyers of the plot in the year 2011 as the builder-O.P. has not deposited the EDC/IDC charges with the competent authority as mentioned in Ex.C-11 dated 30.04.2017. The Opposite party-company intentionally not deposited EDC and EEDC charges with the competent authority. In view of the above, the opposite party cannot demand the maintenance charges from them.
13. As a result thereof the delivery of possession or completion of the project is delayed in the present case for more than 12 years. When the project is not complete as such, this Commission is of the considered opinion that the complainants are well within their legal rights to get the refund of the amount of Rs.24,86,013/- (Twenty Four lacs Eighty Six thousand and thirteen rupees only) which they had already deposited with the O.P. Even otherwise also there is a strong element of the physical and mental agony caused to the complainants for investing a huge amount and the possession has not been delivered within the stipulated period and under the constraint circumstances, the complainants had to knock the door of this Commission even for seeking refund of the amount. In such like cases the Commission had to deal with the developers/O.P. with severe hands who are misusing the funds of the individuals. As such, there is deficiency in service on the part of the opposite parties. The question is answered in the affirmative.
14. Hence with the above observation and discussion there are sufficient grounds to accept the complaint and while accepting the complaint, the O.P. is directed to refund of the amount of Rs.24,86,013/- (Twenty Four lacs Eighty Six thousand and thirteen rupees only) alongwith interest @ 12% per annum from the date of respective deposits and till realization. In case, there is a breach in making payment within the stipulated period of three months, in that eventuality, the complainants would further be entitled to get the interest @ 15% per annum, for the defaulting period. The complainants are also entitled of Rs.50,000/- (Fifty Thousand Only) for compensation of mental and physical agony. In addition, the complainants are also entitled of Rs.21,000/- (Twenty Thousand Only) as litigation charges. It is also made clear that for non-compliance, the provisions enshrined under section 25 and 27 of the C.P.Act would also be attractable.
December 17th, 2019 Ram Singh Chaudhary, T.P.S.Mann, Judicial Member President
S.K.(Pvt.Secy)
