DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi- 110016

Case No. 256/2020

1. Sonia Chachra

W/o Jaskaran Singh Dhiman

R/o 33C, DDA Flats,

Masjid Moth Phase-I,

New Delhi-110048

2. Jaskaran Singh Dhiman

S/o Avtar Singh

R/o 33C, DDA Flats,

Masjid Moth Phase-I,

New Delhi-110048

….Complainant

Versus

Vatika Limited

Through its Directors

At: 4^th Floor,

Vatika Triangle,

Sushant Lok Block A, Phase-1,

MG Road, Gurugram-122002

Haryana, India  

        ….Opposite Party

 Date of Institution    :  17.11.2020     

 Date of Order            : 28.02.2023       

Coram:

Ms. Monika A Srivastava, President

Ms. Kiran Kaushal, Member

Sh. U.K. Tyagi, Member

ORDER

President: Ms. Monika A Srivastava

The complainants have filed the present complaint seeking directions to the OP for refund of the total amount paid by the complainants along with penal interest @ 18% per annum from the date of receipt of payment of Rs.5,00,000/- as compensation for mental agony, harassment and Rs.1,00,000/- as cost of litigation.

1. It is stated by the complainant that they booked a unit in the project “Tranquil Heights” situated at Sector-82A Gurgaon of the OP.  It is stated by them that the unit was booked to meet the residential requirements of the complainants and their families. 

2. It is stated by the complainants that they booked the unit in the said project in 2015 by filling a Letter of Expression of interest and by paying a booking amount of Rs.5,00,000/-, the OP issued allotment letter dated 20.01.2015 wherein the complainants were allotted unit 1904 in Tower-A admeasuring super area of 1635 Sq. Ft. Copy of the allotment letter dated 20.01.2015 is attached as Annexure C-2.

3. It is further stated by the complainants that after unjustified delay of nearly 11 months, the OP executed a Builder Buyer Agreement dated 30.12.2015 wherein as per Clause 13, the possession of the unit was to be offered to the complainants within 48 months from the date of execution of the agreement which meant December 2019.  The copy of the Builder Buyer Agreement dated 30.12.2015 is annexed as Annexure C-3.

4. It is stated by the complainants that the OP collected a substantial sum of Rs.25,24,806/- even before executing builder buyer agreement in favour of the complainant thereby leaving the complainants without any power to protest against the one sided arbitrary, unilateral clauses  given in the agreement.

5. It is further stated by the complainants that they had opted for a construction  linked payment plan and made timely payment as and when demanded by the OP by 18.07.2019, the complainants had paid a substantial sum of Rs.68,68,224/- to the OP .  Copy of the account statement of the complainants issued by the OP is annexed as Annexure -C4.

6. It is further stated by the complainants that in order to comply with the payments of the OP the complainants had taken a home loan from State Bank of India for a sum of Rs.60,00,000/- so that the promised date of possession of the unit is not disturbed because of lack of timely payments.  Copy of the loan sanctioned letter dated 17.09.2016 is annexed as Annexure-C5.

7. It is stated by the complainants that the OP has been malicious, deceitful and fraudulent in their conduct from the very beginning and the complainants have been suffering on account of their gross deficiency in service and unfair trade practice.  It is stated that the OP despite their various assurances have availed the complete construction of the project within stipulated time period and failed to offer possession of the unit to the complainants even after an year from the stipulated time.

8. It is stated that the OP has failed to provide any reasonable justification for the delay in the construction of the project and after several follow ups by the complainants, an e-mail dated 04.03.2020 was sent by the OP informing the complainants that the possession of the unit is tentatively scheduled in the third quarter of 2022. 

9. The complainants are absolutely frustrated with the conduct of the OP who has been arbitrarily extending the date of possession without providing reasons for the same.  The complainants then sent an email dated 25.03.2020 to the OP seeking refund of their money however, the OP replied to it.  The said email is annexed as Annexure-C7.

10. It is stated by the complainants that the conduct of the OP displays gross deficiency and unsatisfactory service on their part, malafide, fraudulent, wrongful intention to evade accountability and responsibility of counts.

11. The complainant has placed reliance on the judgment of the Hon’ble NCDRC passed in Yashpal Sabharwal and Others Vs. Vatika Ltd.  CC No.1874/2018 and decided on 22.01.2020, Amit Gupta and Anr Vs. Vatika Ltd. CC No.425/2018 decided on 30.10.2019 wherein the OP has been directed to refund the entire amount paid by the complainants on 9% per annum and Pioneer Urban Land and Infrastructure Ltd. Vs. Govindan Raghvan, CA No.12238/2018 passed by the Hon’ble Supreme Court another judgment of the Hon’ble Supreme Court has been related to complainant Marvel Omega Builders Pvt. Ltd. and another vs. Srihari Gokhale and another 2019 SCC online SC 1991 and that of Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra II (2019 CPJ 29). 

12. It is stated by the complainants that they have suffered grave financial losses, have wasted their valuable time in visiting the office of the OP and in response have only received false promises from the OP and therefore are seeking redressal on their grievances.

13. In their reply, the OP has stated that the complaint is frivolous and baseless.  It is stated that the complainants are not consumers within the meaning of Section 2 (7) (ii) of the CPA 2019 as the complainants had booked the unit with the OP for commercial purposes and earning profits from resale/rental. It is stated by them that both the complainants are residents of Germany and have booked the unit only for the purpose of earning speculative gains/investment.

14. It is also stated by the OP that the complainants have booked the allotted unit with the OP by executing the agreement and therefore are legally stopped from enforcing this complaint.  It is also stated by the OP that one of the reasons for delay is non payment of consideration as per the schedule of payment and which is evident from the account statement of the complainants wherein interest is levied on delayed payment.

15. It is stated by the OP that the handing over the possession is reciprocal to the timely payment and the complainant’s account claim timely as they have not made a timely payments as per the payment plant opted by them and also delayed the executing of the builder buyer agreement in spite of being given several reminders.

16. The OP has not denied the factual averments relating to payment, letter of allotment and have stated that builder buyer agreement has not been signed by the complainants.

17. It is stated by the OP that despite sending multiple letters dated 16.07.2015, 19.08.2015, 13.10.2015 and 10.12.2015 annexed as Ex.OP-3), complainant did not execute the builder buyer agreement. It is stated that the delay of more than 6 months in executing the builder buyer agreement was on the part of the complainants and not the OP. It is further stated by the OP that the total consideration of the booked unit was Rs.1,17,52,384.90 out of which the complainants have paid only Rs.68,68,224.99 and the balance amount remains to be paid.

18. It is further stated by the OP that due to Covid-19 the construction work got disturbed badly.  It is stated that the possession of the said unit could not be given within 48 months on account of factors which are beyond the control of the OP.  (Ex.OP-6) such as laying down of Chainsa-Gurgaon-Jhajjar-Hissar Gas Pipeline by GAIL, delayed by HUDA in acquisition of land or laying down of 75 and 60 metres sector road getting the project, in question, shortage of labour, delay in supply of stone and sand, cement and steel on account of order passed by the Hon’ble Supreme Court and High Court of Punjab and Haryana against mining, disruption caused by heavy rains, Declaration Gurgaon as notified area for the purpose of ground water reconstruction, delay in re-routing 66KVA High tension Electricity Line, total and impartial ban on construction issued by NGT various times etc.

19. It is stated by the complainant that in response to the complainant’s e-mail dated 25.03.2020, the OP had apprised them that casting of 12^th Floor Slab in Tower-A was in process and construction was on hold due to shortage of labour on account of Covid. It is stated by the OP that vide e-mail dated 12.08.2020 (Ex. OP-7) the complainants were offered an alternative unit in the project “Sovereign Next”.

20. In their rejoinder, the complainants have mostly denied the averments made by the OP in their reply.  It is stated by the complainants that the OP by their own admission has admitted vide email dated 04.03.2020 that the possession cannot be offered before third quarter of 2020.

21. The complainants have also stated that the OP is trying to cover its tracts in failing to deliver timely possession by raising frivolous and arbitrary contentions and that the complainants have paid as per the payment plan and availed a home loan of Rs.60,00,000/- from SBI.  The complainant has placed reliance on the Hon’ble NCDRC passed in Yashpal Marwah Vs. Pushpa Builders II (2006) (CPJ 259) (NC) that failure to rectify deficiency or delivery leads to continuing cause of action.

22. The complainants have stated that they are complainants within the meaning of Act as the unit was solely purchased for the residential purposes and have placed reliance on the judgment passed by the Hon’ble NCDRC in Sanjay Rastogi Vs. BPTP Ltd. CC No.3580 of 2017 decided on 18.06.2020 and which was also upheld by the Supreme Court in Civil Appeal 1001 of 2021 “the objection of the OP is rejected for two reasons, One, the complainant has clarified in the first appeal para of his plaint that he is not buying the unit for any commercial purpose.  It is for the OP to prove otherwise. Two, commercial purpose require that the complainant be shown to be in the business of buying and selling flats.  No attempt has been made to prove this….”

23. The complainants have denied that they have not made timely payments and have stated that, in fact, it is the OP that has grossly failed in fulfilling its obligation and is trying shift the blame on the complainant and have place reliance on the judgment of the Hon’ble Supreme Court passed in Wg. Cdr. Arifur Rahman Khan Vs. DLF (Southern Homes) 2020 SCC online SC 667 decided on 24.08.2020 wherein it was stated “failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within a contractually stipulated period amount to deficiency …..”.

Both the complainant and the OP have filed their respective evidence affidavits as well as written submissions. This Commission has gone through the entire material on record.

The first preliminary objection of the OP pertains to the complainant not being a consumer as it is said that the unit was booked for the purpose of earning profits from resale/rental. This Commission is not convinced with this argument advanced by the OP as the OP has not placed on record any document to show that the complainants had booked this unit for resale or rental. No doubt, the passports of both the complainants show that it has been issued in Germany that does not conclude that one cannot have their own house in India. We place reliance on the judgment passed by the Hon’ble NCDRC in Sanjay Rastogi Vs. BPTP Ltd. CC No.3580 of 2017 decided on 18.06.2020 and which was also upheld by the Supreme Court in Civil Appeal 1001 of 2021 “the objection of the OP is rejected for two reasons, One, the complainant has clarified in the first appeal para of his plaint that he is not buying the unit for any commercial purpose.  It is for the OP to prove otherwise. Two, commercial purpose require that the complainant be shown to be in the business of buying and selling flats.  No attempt has been made to prove this….”

The contention of the complainant pertains to delay in executing the builder buyer agreement, this argument does not find much force as the OP has placed on record letters issued to the complainant dated 16.07.2015, 19.08.2015, 13.10.2015 and 10.12.2015 which shows that there was no delay on the part of the OP in executing the builder buyer agreement therefore, this argument of the complainant is without any merit.

The next contention of the complainant relates to possession being not handed over timely. It is stated by the OP that out of total consideration of the booked unit of Rs.1,17,52,384.90 the complainants have paid only Rs.68,68,224.99 and the balance amount remains to be paid and that the possession of the said unit could not be given within 48 months on account of factors which are beyond the control of the OP.

The OP has taken COVID-19 as one of the reasons why it could not complete the project in time since the project had started in 2015 and was to be completed in 48 months time which would ended in 2019 therefore, we do not see that factor of COVID-19 should be taken as one of the reasons for non-completion of the project in time. In this regard, we place reliance on the judgment of the Hon’ble NCDRC passed in Yashpal Sabharwal and Others Vs. Vatika Ltd.  CC No.1874/2018 and decided on 22.01.2020, Amit Gupta and Anr Vs. Vatika Ltd. CC No.425/2018 decided on 30.10.2019 wherein the OP has been directed to refund the entire amount paid by the complainants on 9% per annum.

The Hon’ble NCDRC has placed reliance of on the judgment passed by the Hon’ble Supreme Court in Kolkata West International City Pvt. Ltd vs Devashish Rudra II(2019) CPJ 29 SC wherein it has been held “it would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession…”

It is seen that a considerable sum of money is paid by the complainant to the OP therefore, this Commission directs the OP to refund the entire sum of Rs.68,68,224.99 to the complainant with interest @ 9% p.a from the date of deposit till realization within three months from the date of receipt of the order failing which the OP would be liable to pay this sum with interest @12 %p.a.

Though no objection has been raised by the OP regarding the pecuniary jurisdiction of this Commission however, it needs to be clarified. This matter pertains to a paid consideration of Rs. 68,68,224.99 lakhs. When this matter was admitted in this Commission, the jurisdiction of this Commission was Rs.1 Crore and therefore the matter was admitted. However, by a subsequent notification, the pecuniary jurisdiction of District Commission was reduced from 1 Crore to Rs. 50 lakhs. No notification was passed regarding transfer of cases which were admitted during the time when the jurisdiction was Rs.1 cr. therefore, placing reliance on the judgment of the Hon’ble Supreme Court in Neena Aneja vs Jai Prakash Associates in 2021, which has dealt with the issue of change in pecuniary jurisdiction, this Commission has decided the case on merits.

Parties to be provided copy of order as per rules. File be consigned to the record room. Order be uploaded on the website.