Chandigarh

StateCommission

CC/120/2023

JOGINDER SINGH GOGIA - Complainant(s)

Versus

WTC NOIDA DEVELOPMENT COMPANY PVT. LTD. - Opp.Party(s)

ISHTNEET BHATIA

28 May 2024

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Consumer Complaint No.	:	120 of 2023
Date of Institution	:	28.11.2023
Date of Decision	:	28.05.2024

 

Sh. Joginder Singh Gogia S/o Sh. Khushal Singh Gogia resident of House No.3013, Sector 35-D, Chandigarh.

…..Complainant.

VERSUS

1. WTC Noida Development Company Pvt. Ltd. through its Managing Directors/Authorized Persons having its registered office at GF-09, Plaza-M6, District Centre Jasola, South Delhi, New Delhi-110025.
2. WTC Noida Development Company Pvt. Ltd. through its Managing Directors/Authorized Persons having its site office at Plot No.2, Block D, Mohali Airport Chowek, GMADA Aerocity, SAS Nagar Punjab 140306.
3. Ashish Bhalla, Managing Director, WTC Noida Development Company Pvt. Ltd. office at GF-09, Plaza-M6, District Centre Jasola, South Delhi, New Delhi-110025.
4. Ashish Bhalla, S/o Anil Bhalla, R/o House No.7, Southern Avenue, Maharani Bagh, New Delhi-110065.
5. Sachin Kumar Hui, Director, WTC Noida Development Company Pvt. Ltd. office at GF-09, Plaza-M6, District Centre Jasola, South Delhi, New Delhi-110025.
6. Sherif Muin Khan, Director, WTC Noida Development Company Pvt. Ltd. office at GF-09, Plaza-M6, District Centre Jasola, South Delhi, New Delhi-110025.
7. Kamlesh Kumar, Director, WTC Noida Development Company Pvt. Ltd. office at GF-09, Plaza-M6, District Centre Jasola, South Delhi, New Delhi-110025.

…..Opposite Parties.

 

BEFORE:    JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                   MR. RAJESH K. ARYA, MEMBER.

 

ARGUED BY:

Sh. Ishtneet Bhatia, Advocate for the complainant.

Opposite Parties are ex-parte vide order dated 10.04.2024.

 

PER  RAJESH  K. ARYA, MEMBER

ORDER

By filing this complaint, the complainant is seeking refund of Rs.93,01,798/- alongwith interest @14% p.a. from the respective dates of deposit; assured return of Rs.55/- per sq. ft. form 31.12.2022 as per contractual agreement; compensation of Rs.5.00 lacs and Rs.2.00 lacs as litigation expenses on the ground that initially, the Opposite Parties allured into purchase Unit No.C-525, 5^th floor having super area of 500 sq. ft in the year 2016 in the project CTC, Chandigarh, Aerocity, Mohali, the total sale consideration of the said unit was Rs.32,49,500/- against which he paid Rs.24,06,497/- as per demand. Again the complainant was allured to purchase bigger flat bearing No.319 in Tower-B measuring 1020 sq. ft. for Rs.91,74,061/- with the assurance to complete it and handover possession to it by 31.12.2022 amount of Rs.24,06,497/- paid towards earlier flat was adjusted towards the subsequent flat. Agreement dated 19.11.2019 for second unit was also executed. The complainant in all paid an out of Rs.93,01,798/- against Rs.91,74,061/-. In December, 2022, Opposite Parties expressed their inability to handover possession and pay the promise assured return. In April, 2023, the complainant was shocked to know through a public notice of GMADA that due to non-payment of installments by the Opposite Parties, the site wherein the complainant had booked a unit, was cancelled by GMADA. Even registration of the project was also cancelled. Despite payment of 100% sale consideration by the complainant, construction on the project site has not been completed. It is alleged that Opposite Parties even did not inform the complainant at the time of booking that project was neither approved nor any approval/sanction was received. Complainant is waiting since 2016 for possession, but all his hopes has been dashed.

2.           By contesting the complaint, the Opposite Parties have pleaded that they have applied to RERA Authority for extension of the date which is still under consideration. It is further stated that Opposite Parties were to offer possession by the RERA committed date of completion of project, but due to outbreak of COVID-19 and lockdown, construction activity was severely hit. It has further been stated that construction was in full swing and the Opposite Parties would be able to offer possession soon. Further, the date of offer possession is connected to the date of completion of project. Pleading no deficiency in service and unfair trade practice on their part, the Opposite Parties had prayed for dismissal of the complaint.
3.         The parties led evidence in support of their case.
4.        Since none put in appearance on behalf of the opposite parties on the date of arguments i.e. on 10.04.2024, as a result whereof, they were proceeded against exparte, as such, we have heard Counsel for the complainant and have also gone through the entire record of this case, very carefully.
5.           In the instant case, there is no dispute with regard to booking of subsequent plot measuring 1020 Sq. ft and receipt of 100% payment by the Opposite Parties towards the total sale consideration of the said unit in question. Per record i.e. Annexure-A1, it is established that initially, Developer Buyer Agreement was executed between the complainant and Opposite Parties on 04.05.2016 in respect of unit No.525 having super area measuring
   500 sq. ft, Floor 5 in Tower-C in WTC Towers. As per clause 4.5 of the said agreement, the Opposite Parties were to offer possession within a period of 48 months from the date of execution of the said agreement plus additional grace period of six months totaling 54 months. Subsequently, another agreement Annexure A-2 was executed between the parties on 19.11.2019 in respect of second unit bearing No.B-319, 3^rd  floor having super area of measuring of 1020 sq. ft. for total sale price of Rs.91,74,061/-. The initial payment of Rs.24,06,497/- paid by the complainant for the previous unit was adjusted by the Opposite Parties against the sale consideration of the subsequent/second unit and the complainant in all paid an amount of Rs.93,01,798/- to the Opposite Parties. It may be stated here that as per clause 7.1 of the subsequent agreement dated 19.11.2019, the Opposite Parties assured the complainant, based on the approved plans and specifications, to handover the possession of the unit by the date mentioned at Sr. No.20 in Schedule A. Perusal of Schedule A transpires that the date of completion of project as per RERA registration as well as date of offer of possession of unit by promoter is mentioned as 31.12.2022. Admittedly the possession of the unit in question has not yet be offered or delivered by the Opposite Parties to the complainant. To wriggle out of the situation, the opposite parties have taken shelter under the force majeure circumstances that due to COVID-19 lockdown was announced on 15.03.2020 in the country; and that the Government of India issued various advisories, giving relief to the builders by extending the dates for completion of the ongoing projects;
6.         Under above circumstances, now the question which falls for consideration is, as to whether, the opposite parties can claim any immunity for delay in offering possession of the unit in question, on the grounds mentioned above. It is very significant to mention here that admittedly lockdown in the country was announced in March 2020 which was lifted in April 2020. Be that as it may, the opposite parties are claiming immunity of 6 months on the ground that additional period of 6 months were granted by the Government qua extension of completion dates of the projects in India. It may be stated here that this Commission is also aware of the fact that the Government of India, Ministry of Housing and Urban Affairs, Housing Section, vide one office memorandum dated 13.05.2020 had extended the registration and completion date or revised complete date or extended completion dates by 6 months due to outbreak of COVID-19. Thus, in our considered opinion, the opposite parties were entitled to get immunity of these 6 months only from the actual date of offering possession of the unit. However, it is coming out from the record that in the instant cases possession of the unit in question was to be offered/delivered by the opposite parties up-to 31.12.2022. Therefore, the opposite parties could not take any help out of the aforesaid immunity period on account of COVID-19. It may be stated here that there has been huge delay in the matter, which is continuing, as even the date when arguments were heard in this case, it was not offered and still the opposite parties are saying that construction work is in progress at the project site. However, the opposite parties have failed to convince this Commission, as to why, even after availing the benefit of period of 6 months granted by the Government, due to COVID 19, possession of the unit in question was not delivered thereafter. Even in the written reply filed by the opposite parties, no confirmed date to deliver possession of the unit in question has been given. Even this much has not been proved, as to at what stage, construction and development activities have reached at the project site. It is admitted position on record that there is no development at the site and the Opposite Parties are not in a position to offer or deliver the possession of the unit in question on account of the fact that previous extension given to the Opposite Parties for extension of completion of project was approved on 30.06.2022 which had already expired and as per pleading in their written statement, the Opposite Parties have applied for further extension upto 30.06.2024 which is still under consideration, meaning thereby that as on date, they are not having any completion or occupation certificate.  It may be stated here that it is settled law that onus to prove the stage and status of construction and development work at the project site and that all the permissions/approvals have been obtained in respect thereof, is on the builder/developer. It was so said by the Hon’ble National Commission, in Emaar MGF Land Limited and another Vs. Krishan Chander Chandna, First Appeal No.873 of 2013 decided on 29.09.2014. As stated above, it is very strange that in the present case, not even an iota of evidence has been placed on record by the opposite parties to prove that the apartment in question is complete and even the development works and basic amenities have been completed at the project site. In case, the construction of the apartment in question, development/construction activities were undertaken and completed at the project site by the stipulated date or till the date of filing complaint by the complainant or even thereafter, then it was for the opposite parties, which could be said to be in possession of the best evidence, to produce cogent and convincing documentary evidence, in the shape of the reports and affidavits of the Engineers/Architects, as they could be said to be the best persons, to testify, as to whether, the construction of the unit in question, all these development/construction activities, are completed at the site or not but it failed to do so. Thus, in our considered opinion, by not offering and delivering possession of the unit in question by the promised date, even within the grace period of 6 months or even within the extended period of 6 months, which has been claimed by them due to COVID-19, referred to above, the opposite parties are deficient in providing service, negligent and guilty of adoption of unfair trade practice.
7.        It is also coming out from the contents of Company Petition No.156 of 2022, Annexure A-8 having been filed by the Union of India, through Serious Fraud Investigation Officer (SFIO) before the National Company Law Tribunal, New Delhi Bench, New Delhi that no work had commenced as on 07.12.2022 in WTC, Chandigarh, Signature and WTC, Chandigarh, Suites. There is another document, Annexure-A i.e. Inspection of Project of WTC Noida Development Company Pvt. Limited on 22.11.2022 as per the directions of NCLT, Delhi by the team of Anand Kumar, Assistant Director, Lalit Mohan Rana, Sr.Asst. Director, Sukhdev Singh, Steno Gr.1 and Satish Kumar Meena, Steno Gr. 1 who opined that the project was still not complete as on 22.11.2022 and the completion date was 30.06.2023. However, this date has also lapsed but possession of the unit in question was not delivered even till the date when arguments were heard in this case, for want of construction and development activities and even in the written reply, as stated above, the opposite parties are still saying that the work is in progress at the project site, yet, no confirmed date of its completion or delivery of possession has been given by them.
8.         Under these circumstances, the opposite parties have attracted an adverse inference in the matter to say that they are not serious in completing the project and on the other hand are utilizing the amount paid by the complainant and other similar located allottees, without providing them anything, for their own use. Hard earned money to the tune of Rs.93,01,798/- was paid by the complainant with a hope to have his unit. However, his hopes have been dashed to the ground. From the peculiar circumstances of this case, it has been proved that the opposite parties made false representations, which were materially incorrect and were made in such a way that the complainant, to whom it was made, was entitled to rely upon it and he may act in reliance on it. The complainant is thereby involved in disadvantageous contract with the opposite parties and suffered financial loss, mental agony and physical harassment. Representations/statements made at that time were believed to be true, which act also amounts to grave deficiency in providing service, negligence and adoption of unfair trade practice on the part of the opposite parties, which has definitely caused a lot of mental agony, harassment and financial loss to the complainant.
9.           In view of the facts and circumstances of this case, we are of the considered view that we cannot make the complainant to wait for an indefinite period, in the matter. It is well settled law that non-delivery of actual physical possession of units in a developed project accompanied by occupation and completion certificates by the promised date, is a material violation on the part of a builder and in those circumstances, the allottee is well within his/her right to seek refund of the amount paid. It was also so said by the Hon’ble National Commission in Sujay Bharatiya & Anr. Vs. Unitech Reliable Projects Pvt. Ltd., Consumer Case No.1814 of 2017 decided on 05.07.2018. The above view taken is further supported by the principle of law laid down by the Hon’ble Supreme Court of India in the case titled as Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, Civil Appeal No.12238 of 2018, decided on 02.04.2019 and also in Fortune Infrastructure Versus Trevor D’ Lima & Ors. (2018) 5 SCC 442.
10.         In the present case also, there has been an inordinate delay in the matter. However, from the act and conduct of the opposite parties, referred to above, it has been proved that they never intended to complete the construction work at the project and deliver possession of the unit to the complainant, but, on the other hand, wanted to siphon off and usurp the huge amount of Rs.93,01,798/- received from the complainant, for their personal use or some other purposes.
11.          Not only as above, it is settled law that before offering possession of the residential unit/plot, the builder/developer is legally bound to obtain completion certificate from the competent authorities. An allottee is not obliged to take possession of a residential plot/flat, unless it is complete in every respect, including the completion certificate. It was so said by the Hon’ble National Commission, in Inderjit Singh Bakshi Versus S.M.V. Agencies Private Limited, FA No. 729 of 2013, decided on 30.11.2015. Relevant part of the said order reads as under:-

‘….An allottee is not obliged to take possession of a flat unless it is complete in every respect, including the completion certificate….’

12.         The Hon'ble National Commission in its order dated 13.06.2018 passed in First Appeal No.855 of 2018 (Vision India Realtors Pvt. Ltd. & Anr. v. Sanjeev Malhotra) also, categorically held that legal possession cannot be delivered in the absence of completion certificate issued by the competent authority. It was held in Para No.5 as follows:

“5. During the course of hearing, it was submitted by the learned counsel for the appellant that the completion certificate in respect of the project was obtained by the appellant on 15.03.2016. A copy of the communication dated 15.03.2016 from Municipal Council, Kharar has been placed on record. It is therefore, evident that the completion certificate having been received only on 15.03.2016, the appellant could not have offered legal possession of the apartment to the complainant at any time before that date. As noted earlier, the amount of Rs.1,81,375/- was demanded on 20.04.2015 and the amount of Rs.2,12,489/- was demanded on 06.02.2016. The complainant was requested to pay the aforesaid amount so that the appellant could offer the possession of the flat. The said offer of possession was meaningless being unlawful as the requisite completion certificate had not been obtained by that date......."

 

13.           Furthermore, Section 14 of Punjab Apartment and Property Regulation Act, 1995 (in short, "PAPRA") deals with responsibility of the builder/promoter to obtain completion and occupation certificate from the competent authority, which reads as under:-

“14. It is the responsibility of the promoter-

(i) in the case of apartments, to obtain from the authority required to do so under any law completion and occupation certificates for the building and if a promoter, within a reasonable time, after the construction of the building, does not apply for an occupation certificate from the aforesaid authority, the allottee of an apartment may apply for an occupation certificate from the said authority; and

(ii) in the case of a colony, to obtain completion certificate from the competent authority to the effect that the development works have been completed in all aspects as per terms and conditions of the licence granted to him under section 5. (2) The authority referred to in sub-section (1) shall, after satisfying itself about the agreement of sale between the promoter and the allottee, and the compliance of the building regulations and all other formalities, issue an occupation certificate."

14.           However, in the present case, no completion certificate and occupation certificate, if any, issued by the competent authority has been produced by the opposite parties on the record, which itself is violation of above reproduced Section 14 of PAPRA. Even till the date of arguments in this complaint, no completion certificate has been produced before this Commission. Even, no documents have been placed on record by the opposite parties, to show that they have communicated the status of the completion of the project/project report, along with proof of development to the complainant at any point of time. The complainant has already paid the entire sale price and other charges. Opposite parties have further failed to prove, by placing any document on record, that the development of the project was completed within the stipulated timeframe. However, there was no whisper of offer of possession from the side of opposite parties. Thus, in view of the law laid down by the Hon'ble National Commission in the above noted authorities and the position stated above, without issuance of such a certificate by the competent authority, opposite parties cannot be said to be in a legal position to hand over possession of the unit, in question, to the complainant. However, in the instant case, the possession has still not been offered to the complainant. It may be stated here that the Counsel for the complainant placed on record copy of order dated 26.02.2024 passed by Hon’ble Punjab & Haryana High Court in CWP-21141-2023 (O&M) titled as WTC Noida Development Company Limited Vs. State of Punjab & Others to contend that the opposite parties even did not comply with the order dated 14.08.2023 vide which the payment to be made by the opposite parties was rescheduled on following conditions as stated in order dated 26.02.2024:-

“(i) The appellant will deposit this balance amount of Rs.124.50 Crore in 7 installments of Rs.17.79 Crore each. Accordingly, Rs.17.79 Crore will be deposited by the appellant on 10th of every month with 1st installment starting from 10.09.2023, till all outstanding dues of this site are deposited.

(ii) Re-scheduling of outstanding amount due as on date in installments would not be treated as waiver of any interest or penal interest, which the allottee/appellant is liable to be pay under the terms and conditions of allotment.

(iii) In case there is default in payment of any monthly installment re scheduled as above in Para no.(i), then the order of resumption passed by the Estate Officer (Plots), GMADA shall become operational and he shall be free to pass eviction orders against the appellant and take over possession of site.

(iv) Apart from above, the allottee/appellant shall continue to comply with payment schedule of future installments without any default.”.

15.            The Hon’ble High Court dismissed the Writ Petition by observing as under:-

“A perusal of the schedule shows that the outstanding amount of Rs.124.50 Crores was to be paid in seven installments starting from 10.09.2023. As against this, only a sum of Rs.18 Crores was paid in compliance of the orders passed by this Court. Eventually, after efforts of amicable settlement had been made but the same had failed, four more installments had become due by 15.01.2024 i.e. the installments due as on 10.10.2023, 10.11.2023, 10.12.2023 and 10.01.2024. Admittedly, the petitioner company has to pay more than Rs.100 Crores to the respondents and, as mentioned, by 15.01.2024, more than Rs.70 Crores had become due. It is, therefore, clear that the petitioner-company neither honoured the order dated 14.08.2023 as per which, resumption of the site would become operative in case of failure to deposit nor did it make the payments after this Court had taken cognizance of the matter and even the State of Punjab had made all out efforts to arrive at an amicable settlement. Under the circumstances, there is serious doubt with regard to the bona fides of the petitioner company and the matter is not required to be taken any further.

              In view of the aforesaid, this Court does not find any reason to proceed further with the writ petition. Finding the same to be devoid of merits, the same is accordingly dismissed.”

 

16.         Thus, in view of aforesaid discussion and in our considered opinion, opposite parties, jointly and severally, are held liable to refund the entire amount of Rs.93,01,798/- alongwith interest @9% p.a. from the respective dates of deposits in view of principle of law laid down by the Hon’ble Supreme Court of India in Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor, Civil Appeal No.6044 of 2019, decided on 7.4.2022, wherein it was held as under:-

“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 the purchaser deserves to be partly allowed. The interests 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 and we find no reason to interfere in the appeal filed by the Consumer for enhancement of interest.”

 

17.            Further, Hon’ble National Consumer Disputes Redressal Commission, New Delhi in M/S. MANOHAR INFRASTRUCTURE AND CONSTRUCTIONS PVT. LTD. & ANR. Vs. ANKIT JAIN, First Appeal No.185 of 2020 decided on 17.05.2022, reduced the interest rate awarded by this Commission on the deposited amount(s) from 12% to 9% and the penal interest from 15% to 12%. Following the case of Ankit Jain (supra), similar view was taken by Hon’ble National Commission in MANOHAR INFRASTRUCTURE & CONSTRUCTIONS PVT. LTD. Vs. KAPIL DUA, First Appeal No.1516 of 2018 decided on 19.12.2022. Not only this, in a recent case M/S. MANOHAR INFRASTRUCTURE & ORS. VS. JORAWER SINGH MANN, First Appeal No.1800 of 2017 decided on 20.03.2023, the Hon’ble National Commission while reducing the rate of interest from 13% to 9%, ordered refund of the amount alongwith interest @9% p.a.  from the respective dates of deposit till the date of payment.
18.         For the reasons recorded above, this complaint is partly accepted and the opposite parties, jointly and severally, are directed as under:-

1. To refund the amount of Rs.93,01,798/- to the complainant, alongwith interest @9% p.a. from the respective dates of deposit onwards, without deducting any TDS, within a period of 30 days from the date of receipt of a certified copy of this order, failing which, thereafter, the said amount shall carry 3% penal interest i.e. 12% p.a. (9% p.a. plus (+) 3% p.a.), from the date of passing of this order, till realization.
2. To pay compensation for causing mental agony and harassment and also cost of litigation, in lumpsum, to the tune of Rs.50,000/-, to the complainant, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, the said amount of Rs.50,000/-, shall carry interest @9% p.a. from the date of passing of this order, till realization.
3. However, it is further made clear that in case, the complainant has availed loan facility from any Bank/Financial Institution, for making payment towards price of the unit in question, it will have the first charge on the amount payable, to the extent, the same is due to be paid by the complainant.

19.         Pending applications, if any, stands disposed of accordingly.
20.         Certified copies of this order be sent to the parties free of charge forthwith.
21.         File be consigned to Record Room after completion.

Pronounced

28.05.2024

 [RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

 

(RAJESH K. ARYA)

 MEMBER

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