National Consumer Disputes Redressal
Sanjiv Kumar Jain & Anr. vs Lodha Crown Buildmart Private Limited on 24 February, 2023
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 2107 OF 2016 1. SANJIV KUMAR JAIN & ANR. SCO 44, SECTGOR-7C, MADHYA MARG, CHANDIGARH-160019 ...........Complainant(s) Versus 1. LODHA CROWN BUILDMART PRIVATE LIMITED (THROUGH ITS DIRECTORS),
LODHA EXCELUS, LEVEL2, APOLLO MILLS COMPOUND, NM JOSHI MARG, MAHALAXMI, MUMBAI-400011 ...........Opp.Party(s) CONSUMER CASE NO. 2108 OF 2016 1. AMITA JAIN & ANR. SCO 44, SECTGOR-7C, MADHYA MARG, CHANDIGARH-160019 ...........Complainant(s) Versus 1. LODHA CROWN BUILDMART PRIVATE LIMITED (THROUGH ITS DIRECTORS),
LODHA EXCELUS, LEVEL2, APOLLO MILLS COMPOUND, NM JOSHI MARG, MAHALAXMI, MUMBAI-400011 ...........Opp.Party(s) CONSUMER CASE NO. 2109 OF 2016 1. SANJIV KUMAR JAIN & ANR. SCO 44, SECTGOR-7C, MADHYA MARG, CHANDIGARH-160019 2. AMIT JAIN SCO 44, SECTGOR-7C, MADHYA MARG, CHANDIGARH-160019 3. AMIT JAIN SCO 44, SECTGOR-7C, MADHYA MARG, CHANDIGARH-160019 ...........Complainant(s) Versus 1. LODHA CROWN BUILDMART PRIVATE LIMITED (THROUGH ITS DIRECTORS),
LODHA EXCELUS, LEVEL2, APOLLO MILLS COMPOUND, NM JOSHI MARG, MAHALAXMI, MUMBAI-400011 ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE RAM SURAT RAM MAURYA,PRESIDING MEMBER HON'BLE DR. INDER JIT SINGH,MEMBER
For the Complainant : Ms. Anubha Aggarwal, Advocate For the Opp.Party : Mr. Rahul Kriplani, Advocate
: Ms. Suhasini Sen, Ms. Rea Bhalla and
Ms. Supraya V. Advocates
Dated : 24 Feb 2023 ORDER
1. Heard Ms. Anubha Aggarwal, Advocate, for the complainants and Mr. Rahul Kriplani, Advocate, for the opposite party.
2. Above complaints have been filed for directing Lodha Crown Buildmart Pvt. Ltd. (the opposite party) to (i) handover possession of the apartments, within stipulated period and in no case, later than 30.06.2017; (ii) pay interest @18% per annum, compounded quarterly on the amount deposited by the complainants from the date of deposit till offer of possession; (iii) refund excess amount deposited by the complainants with interest @18% per annum, compounded quarterly from the date of deposit till the date of refund; (iv) consider advance deposit of the complainants under "My Gain" scheme and pay interest on it; (v) withdraw demand letters wherein interest is being charged from the complainants; (vi) pay Rs.2000000/- as punitive damages; (vii) pay Rs.2000000/-, as compensation for mental agony and harassment; (viii) pay costs of litigation; and (ix) any other relief which is deemed fit and proper in the facts and circumstance of the case. As the complaints are for similar reliefs against same opposite party as such these complaints are consolidated and decided by a common order.
3. The complainants filed IA/8/2021 in CC/2107/2016, IA/9/2021 in CC/2108/2016 and IA/10/2021 in CC/2109/2016, for amending prayer clause of the complaints and by praying for refund of entire amount deposited by the complainants with interest @24% per annum from the date of respective deposit till the date of refund on the grounds that (i) the opposite party has delayed delivery of possession for 8 years although entire sale consideration was deposited by them in the year 2012; (ii) the construction as raised by the opposite party is of poor quality; (iii) the carpet area has been substantially reduced from the promised area; and (iv) They are in dire need of money to meet out unexpected health emergency. The complainants stated that for paying sale consideration, they had taken loan and paid huge amount towards interest on it. Amita Jain (the complainant) has been diagnosed with stage three cancer, which required long term costly treatment. She was undergoing treatment.
The opposite party filed its replies in the above applications and contested them. The opposite party stated that the complaint had been filed for possession and other consequential reliefs. Allegations of poor quality of construction and reduction in the carpet area are incorrect and an afterthought. At the verge of final hearing, the complainants are changing the nature of the complaints, which is not permissible under the law, as held by Supreme Court in Revajeetu Builder and Developers Vs. Narayanaswamy, (2009) 10 SCC 84.
Supreme Court in L.I.C. Vs. Sanjeev Builders (P) Ltd., 2022 SCC OnLine SC 1128, after review of entire law on the amendment of pleadings and prayer, laid down the principles for dealing with the amendment applications; which inter-alia held that where amendment sought is only in respect of relief in the plaint and is predicated on the facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed.
In these cases inordinate delay in offer of possession and medical emergency of the complainants are facts, arose after filing of the complaints. The facts of inferior quality of construction and substantial reduction in the carpet area came to the notice of the complainants, when they were permitted to visit the flats. It is well within jurisdiction of the court to take its notice of subsequent facts and mould the relief, accordingly. It is well settled that inordinate delay in offer of possession, amounts to 'deficiency in service' and a home buyer can ask for refund, on this ground alone. In view of the principles laid down by Supreme Court L.I.C.'s case (supra) and Pioneer Urban Land Infrastructure Vs. Govindan Raghawan, (2019) 5 SCC 725, IA/8/2021 in CC/2107/2016, IA/9/2021 in CC/2108/2016 and IA/10/2021 in CC/2109/2016 are allowed.
4. Sanjiv Kumar Jain and Mrs. Amita Jain filed CC/2107/2016, stating that Lodha Crown Buildmart Pvt. Ltd. (the opposite party) was a company, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing projects. The opposite party launched a group housing project, in the name of "Lodha Dioro", at New Cuffe Parade, Mumbai, in the year 2011 and made wide publicity of its facilities and amenities. Believing upon the representations of the opposite party, the complainants booked a Duplex, i.e. Unit No.103, Floor 1, Wing A, for consideration of Rs.64283976/- on 12.05.2012 and deposited booking amount of Rs.1800000/-. The opposite party provided payment plan as "construction linked payment plan" in the application form. The opposite party vide letter dated 01.06.2012, demanded total Rs.4233930/- in different heads for execution of the agreement. The complainants deposited Rs.6363248/-, which included next instalment and expenses for execution and registration of agreement. The opposite party issued allotment letter on 29.06.2012, allotting Unit No.G-103, carpet area 2185 sq.ft. plus 2 car parking spaces and executed Agreement to Sell in their favour on 30.06.2012. The complainants deposited further instalments and inquired for prepayment of the remaining instalments. The opposite party, through email dated 09.08.2012 informed that the complainants had deposited Rs.27084904/- + Service Tax of Rs.395289/- and balance consideration of Rs.36963286/- + Service Tax of Rs.1591086/- was payable, on which, he gave discount of Rs.4007661/-. The complainants deposited balance amount of consideration and service tax till 10.09.2012, which was acknowledged by the opposite party. Clause 11.1 and Annexure-2 of the agreement provides 31.12.2015 for offer of fit-out possession and clause 11.2 provides grace period of one year. The opposite party raised a demand of Rs.8290/- toward Maharashtra VAT. The opposite party vide email dated 14.09.2015, informed that possession would be offered within grace period. The opposite party floated a scheme of "May Gain", under which, they were providing interest @11% per annum on advance deposit, which was later on revised to @10.5% per annum w.e.f. 01.01.2017. As the complainants had paid entire consideration, they wrote a letter dated 22.09.2015, requesting to treat their payment as "May Gain" in your account, till offer of possession but did not receive any response. The opposite party, vide letter dated 22.09.2016, informed that they would offer possession till June, 2017. The complainants through email dated 23.09.2016, expressed their disappointments, due to unilaterally changing due date and filed this complaint was filed on 15.12.2016, alleging deficiency in service.
In CC/2107/2016, the complainants filed Rejoinder Reply, Affidavit of Evidence of Sanjiv Kumar Jain. The opposite party Affidavit of Evidence of Surendran Nair.
5. Amita Jain and Sanjiv Kumar Jain filed CC/2108/2016 stating that Ms. Tanya Jain, their daughter booked a flat in "Lodha Elisium" Tower at New Cuffe Parade, Mumbai, of the opposite party and deposited the booking amount on 12.05.2012. The opposite party vide letter dated 12.05.2012 allotted Unit No.3502, Wing-B, Type-3, Optima with private garden plus 2 car parking space for consideration of Rs.33859440/-. Allotment letter provides "construction linked payment plan". Later on, Ms. Tanya Jain assigned her right in the above flat in favour of the complainants with the consent of the opposite party. As per demand, the complainants deposited the requisite amounts and the opposite party executed Agreement to Sell dated 30.06.2012. Clause 11.1 and Annexure-2 of the agreement provides 31.12.2015 for offer of fit-out possession and clause 11.2 provides grace period of one year. The complainants inquired for prepayment of the remaining instalments. As informed by the opposite party, the complainants deposited balance amount and the opposite party acknowledged by letter dated 10.09.2012 that total Rs.33859440/- has been deposited towards consideration and total Rs.1637339/- has been deposited towards taxes. When the opposite party unilaterally changed due date for possession, the complainants requested from the opposite party for depositing balance installments under "My Gain" Scheme of the opposite party. Remaining allegations are similar to CC/2107/2016.
6. Sanjiv Kumar Jain and Mrs. Amita Jain filed CC/2109/2016, alleging that Ms. Sonam Jain, their daughter booked a flat in the project "Lodha Elisium" Tower, New Cuffe Parade, Mumbai, of the opposite party on 12.05.2012 and the opposite party allotted Unit No.4002, Wing-B, Type-3 BHK, Optima with private garden plus 2 car parking space for total consideration of Rs.34689690/-. Later on she assigned her right in the said flat in favour of the complainants with the consent of the opposite party. The complainants deposited the installments and requisite amount, as per demand and the opposite party executed Agreement to Sell dated 30.06.2012 in favour of the complainants. The complainants sought for deposit of all the installments at a time. The opposite party informed that the amount and the complainants deposited entire amount, which was acknowledged by the opposite party in receipt dated 10.09.2012 that total consideration of Rs.34689690/- and total service tax of Rs.1739960/- have been paid. Clause 11.1 and Annexure-2 of the agreement provides 31.12.2015 for offer of fit-out possession and clause 11.2 provides grace period of one year. When the opposite party unilaterally changed due date for possession, the complainants requested from the opposite party for depositing balance installments under "My Gain" Scheme of the opposite party. Remaining allegations are similar to CC/2107/2016.
7. The opposite party filed its separate written replies in above complaints, in which, booking of the flats by the complainants/their daughters, allotment of the flats, execution of Agreements to Sell in their favour and payments made by them (except that payments included Service Tax and MVAT), have not been disputed. The opposite party stated that Mumbai Metropolitan Region Development Authority (MMRDA) executed lease of the project land on 01.08.2011, in favour of the opposite party for its development, which was named as "New Cuffe Parade". The opposite party submitted Layout plan for development of 5 towers, including the towers "Lodha Dioro" and "Lodha Elisium" up to the height of 225 meters ASML. MMRDA approved layout plan, permitting construction up to the height of 210.05 meters ASML and issued "commencement certificate" dated 09.12.2011. The opposite party took loan from financial institutions and started construction. However, construction was delayed due to force majeure reason inasmuch as Aviation Authority delayed issuance of "No Objection Certificate", which was applied by MMRDA, in spite of rigorously follow up by the opposite party. Aviation Authority issued NOC dated 30.10.2013, granting permission for construction up to the height of 139.90 meters AMSL. The opposite party made a representation to Chairman, Appellate Committee, Ministry of Civil Aviation, to increase the height of the building on 28.07.2015 but did not receive any response. The opposite party then filed Writ Petition No.240 of 2016, against the decision of Aviation Authority reducing the height, which is pending. Due to reduction of height of the building, the opposite party had to reduce number of storeys from 63 to 45. The opposite party intimated the complainants vide letter dated 14.09.2015, about it. The opposite party informed the complainants vide letter dated 22.09.2016 that the construction would be delayed and possession would be handed over till June, 2017. Under Clause-11.5 of the Agreement to Sell, the opposite party was entitled for extension of period. The opposite party was proceeding with construction with full swing and will be in position to handover possession within a short period. Clause 11.3 of the agreement gives liberty to the complainants to terminate the agreement and seek for refund. "My Gain" scheme was introduced in the year 2014, for the allottees of that year only. The complainants are not covered under this scheme. The complainants have claimed interest and compensation exorbitantly. Preliminary issues that (i) Amita Jain was not a co-applicant in the application form as such there is defect of joinder of unnecessary party. (ii) The reliefs sought in the complaints are of the nature of specific performance of the contract, which can be granted by civil court only. (iii) The complainants booked Flat Nos. A-0103, B-3502 and B-4002, in the project of the opposite party for speculative gain and not for personal use as such the complainants are not consumer and complaint is not maintainable. (iv) Clause 23 of the agreement contained an arbitration clause and the complainants be relegated to go for Arbitration, have also been raised. There was no deficiency in service or unfair trade practice. The opposite party filed Affidavits of Evidence of Surendran Nair. Both the parties have filed their short synopsis of argument.
8. The opposite party, vide email dated 22.08.2018, informed the complainants that the flats allotted to them were going on under quality check. The opposite party, vide email dated 14.09.2018, informed the complainants to clear balance dues and take possession. The complainants wrote an email dated 28.11.2018, to fix time for them so that they could verify the quality of the construction and its amenities and facilities before taking possession. Thereafter, the complainants gave reminder emails on 23.03.2019,19.04.2019, 28.06.2019. The opposite party, vide email dated 117.08.2019, informed the complainants to complete formalities of taking possession within 15 days. The complainants vide email dated 21.08.2019, sought permission of the opposite party to permit them to get area of the flats measured by an Architect, before taking possession. The opposite party vide email dated 22.08.2019, informed that once you take possession and then measure the area. The complainants vide email dated 26.08.2019, informed that they along with an Architect were coming to Mumbai on 02.09.2019, for measurement of the area and checking the quality. The opposite party, vide email dated 27.08.2019, informed that site was not operational on 02.09.2019, due to Ganesh Jayanti. The opposite party, vide email dated 27.08.2019, asked the complainants to make payments of other charges. The complainants vide email dated 28.08.2019, requested for permission of measurement of the area and checking the quality on 03.09.2019. The complainants along with an Architect went on the project on 03.09.2019, but was not permitted to enter the flats by one Darshan Mehta, representative of the opposite party. The complainants then filed IA/15029/2019, IA/15031/2019 and IA/15033/2019, in above complainants for directing the opposite party to handover possession. The complainants filed IA/19163/2019, IA/19164/2019 and IA/19163/2019, for filing Architect Report dated 26.11.2019, showing that carpet area has been reduced from 1627 sq.ft. to 1472.99 sq.ft.
9. The opposite party filed its replies in these applications on 13.12.2019, stating that in offer of possession letter dated 14.09.2018 and statement of account attached with it, the opposite party did not demand any amount towards consideration rather other charges, payable at the time of taking possession according to the agreement. The opposite party is willing to handover possession, reserving its right relating to other charges to be decided in the complaints. In replies to IA/19163/2019, IA/19164/2019 and IA/19163/2019, the opposite party filed its own Architect Report dated 29.11.2016.
10. The opposite party filed IA/164/2021, for dismissing the complaints on the ground that the complainants not consumer. The opposite party stated that apart from 3 flats, which are subject matter of these complaints, the complainants had booked one 2BHK flat in the project "Park Lodha Allura", one office space in "Lodha Codename Only the Best Only the Best" and 9 office spaces in "NCP Supermus" as such they are investors in real estates for speculative gain.
11. We have considered the arguments of the counsel for the parties and examined the record. The opposite party raised preliminary issue that the complainants are not consumer and filed IA/164/2021, for dismissing the complaints as not maintainable. The opposite party stated that apart from 3 flats, which are subject matter of these complaints, the complainants had booked one 2BHK flat in the project "Park Lodha Allura", one office space in "Lodha Codename Only the Best Only the Best" before booking these flats and 9 office spaces in "NCP Supermus" after booking of these flats as such they are investors in real estate for speculative gain and not consumers. The complainants stated that so far as these three flats are concerned, it were booked by the complainants and their daughters Ms. Tanya Jain and Ms. Sonam Jain, for their personal use and not for selling it. Other properties were also booked for their personal use and not for sale.
12. The word "consumer" has been defined under Section 2 (1) (d) and word "service" has been defined under Section 2 (1) (o) of the Consumer Protection Act, 1986, (hereinafter referred to as the Act) which are quoted below:-
Section-2 (1) (d).- "consumer" mean any person who,-
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid and partly promised, or under any system of deferred payment, when such use is made with approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) hires or avails of any services for consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person, but does not include a person who avails such services for any commercial purpose;
Explanation.- For the purpose of this clause, "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning livelihood by means of self employment.
Section 2(1) (o):- "service" means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;"
13. The term "housing construction" has been added by Act No.50 of 1993, under Section-2(1) (o) of the Act. Earlier the Explanation was added by Act No. 50 of 1993 w.e.f. 18.06.1993 under Sction-2(1) (d) (i) of the Act. By Act No. 62 of 2002, w.e.f. 15.03.2003, Section-2(1) (d) (ii) was also amended and the term "but does not include a person who avails such services for any commercial purpose" has been added in it and the Explanation was placed in last. Scope of the Explanation as well as expressions "commercial purpose" and "the purposes of earning livelihood by means of self-employment" came up for consideration before Supreme Court in relation to purchase of goods in Laxmi Engineering Works Vs. P.S.G. Industrial Institute, (1995) 3 SCC 583. In which, it has been held that the Explanation was an exception to an exception. Expression "commercial purpose" has not been defined, as such, its dictionary meaning has to be taken into consideration. "Commerce" means financial transaction, especially buying and selling of merchandise on large scale. As in the Explanation, the purposes of earning livelihood by means of self-employment, has been excluded from the purview of commercial purpose as such purchase of commercial goods for earning livelihood by means of self-employment, will not exclude such buyer from the purview of the "consumer" so long as it is used by the buyer or his family members or with the help of one or two other persons. It is question of fact and has to be decided in each case independently. Supreme Court in Civil Appeal No. 19611 of 2013 Sanjay Bansal Vs. M/s. Vipul Limited (decided on 12.04.2019) and Lilavati Kitrilal Mehta Medical Trust Vs. Unique Shanti Developer, (2020) 2 SCC 265, held that number of flats booked by the buyer is not a decisive factor of 'consumer' rather the purpose for which the flats were booked/purchased has to be examined. In Sunil Kohli Vs. Purearth Infrastructure Ltd., (2020) 12 SCC 235, held that if a person purchases commercial property for his personal use by way of self-employment, then he is not ousted from the definition of consumer.
14. The opposite party has not adduced any evidence to prove that the complainants are engaged in purchasing and selling the properties. The complainants have stated that they had booked the flats for their use and for use of their daughters and not for any commercial purpose. There is no reason to disbelieve the statement of the complainants. IA/164/2021 is rejected. Other preliminary objection that clause 23 of the agreement contained an arbitration clause and the complainants be relegated to go for Arbitration, also has no force inasmuch as Arbitration and Conciliation Act, 1996 does not exclude jurisdiction of consumer forum as held by Supreme Court in Emaar MGF Land Limited Vs. Aftab Singh, (2019) I CPJ 5 (SC).
15. Relief of refund in these complaints have been sought on the grounds:- (i) the opposite party has delayed delivery of possession for 8 years although entire sale consideration was deposited by them in the year 2012; (ii) the construction as raised by the opposite party is of poor quality; (iii) the carpet area has been substantially reduced from the promised area; and (iv) They are in dire need of money to meet out unexpected health emergency. So far as last ground is concerned, health condition of Amita Jain has been proved by filing medical papers filed along with IA/8/2021, which are not disputed. If unreasonable delay in offer of possession is proved then it is sufficient to grant relief of refund and other grounds are not liable to be examined. The opposite party also in parargraph-7 (V) of the written reply has stated that the complainants have liberty to terminate agreement and ask for refund under Clause-11.3 of the agreement, under which, interest @9% per annum was agreed, in case of refund.
16. Although payment plan was "construction link payment plan" but the complainants made full payment up to 10.09.2012, which is not disputed. Clause 11.1 and Annexure-2 of the agreement provide 31.12.2015 for offer of fit-out possession and clause 11.2 provides grace period of one year. As such due date of possession was 31.12.2016. The opposite party stated that Layout plan of 5 towers, including the towers "Lodha Dioro" and "Lodha Elisium" up to the height of 225 meters ASML was approved and "commencement certificate" was issued on 09.12.2011. However, construction was delayed as Aviation Authority delayed issuance of "No Objection Certificate", which was issued on 30.10.2013, granting permission for construction up to the height of 139.90 meters AMSL. Thereafter, the opposite party approached Appellate Authority and High Court for raising height but could not succeed. The opposite party is entitled for extension of period from 30.06.2012 to 30.10.2013 under clause-11.5 of the agreement. The opposite party offered possession through letter dated 14.09.2018 and there was no unreasonable delay.
17. Email dated 14.09.2018, i.e. the offer of possession, did not mention about issue of "occupation certificate". The opposite party has filed part occupancy certificate along with IA/3744/2019 in CC/2108/2016. This occupancy certificate is in respect of Building B, Wing 3 & 4 and Building C Wing 5 & 6. There is nothing on record to prove that this part occupancy certificate relates to the Unit No.A 0103, B 3502 and B 4002, which are subject matter in these complaints. Before deposit of full amount, in September, 2012, the opposite party raised demand of 3rd and 4th instalments, which were paid by the complainants as such the opposite party cannot be permitted to raise plea that due to delay in granting NOC by Aviation Authority, they could not start construction. The complainants stated that even on 14.09.2018, the construction was not complete inasmuch as in spite of repeated requests, the opposite party did not permit the complainants to visit the flats and examine it, details of which have been mentioned in pargraph-8 (supra). From the conduct of the opposite party, only inference can be drawn that through email dated 14.09.2018, the opposite party sought for realization of further amount in the name of offering possession. Even if the period, for which NOC of Aviation Authority was delayed, is added, due date of possession expired in April, 2018 but the opposite party did not permit visit of the complainants till September, 2019 although full payment was made by them in September, 2012. As admitted by the opposite party, the complainants are entitled to invoke clause-11.3 of the agreement, after 31.12.2016 and can demand for refund. As there was unreasonable delay in offer of possession, the complainants are entitled for refund of full amount under clause-11.3 of the agreement. Supreme Court in Banglore Development Authority Vs. Syndicate Bank, (2007) 6 SCC 442, Fortune Infrastructure Vs. Trevor D'Lima, (2018) 5 SCC 442 and Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, 2019 SCC OnLine SC 438, held that a home buyer cannot be made to wait for possession of the flat for indefinite period.
ORDER
In the result, the complaints are partly allowed with cost of Rs.one lac in each complaint. The opposite party is directed to refund entire amount deposited by the complainants with interest @9% per annum from the date of respective deposit till the date of payment, within a period of two months from the date of this judgment.
......................J RAM SURAT RAM MAURYA PRESIDING MEMBER ...................... DR. INDER JIT SINGH MEMBER