National Consumer Disputes Redressal
Vaibhav Saha & Anr. vs Godrej Premium Builders Ovt. Ltd. on 5 September, 2024
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 1250 OF 2018 1. VAIBHAV SAHA & ANR. S/O SHASHI SAHA
R/O J-201, ROHAN VASANTHA APPARTMENTS,
MARATHALLI BRIDGE,
VARTHUR MAIN ROAD, BANGALORE-560037 KARNATAKA 2. DEEPSHIKHA KOHLI W/O VAIBHAV SAHA
R/O J-201, ROHAN VASANTHA APPARTMENTS,
MARATHALLI BRIDGE,
VARTHUR MAIN ROAD, BANGALORE-560037 KARNATAKA ...........Complainant(s) Versus 1. GODREJ PREMIUM BUILDERS OVT. LTD. 3RD FLOOR, UM HOUSE TOWER A,
PLOT NO. 35, SECTOR-44, GURGAON-122002 HARYANA ...........Opp.Party(s)
BEFORE: HON'BLE MR. BINOY KUMAR,PRESIDING MEMBER
FOR THE COMPLAINANT : MR. KARAN KAPOOR, ADVOCATE
MS. SRISHTI SINGLA, ADVOCATE FOR THE OPP. PARTY : APPEARANCE NOT MARKED
Dated : 05 September 2024 ORDER
The present Consumer Complaint, i.e., CC/1250/2018, is filed under Section 21 of the Consumer Protection Act, 1986 (for short, the Act), by Mr. Vaibhav Saha and Mrs. Deepshikha Kohli (hereinafter referred to as the Complainants/Buyers) against M/s Godrej Premium Builders Pvt. Ltd. (hereinafter referred to as the Opposite Party/Builder), seeking refund of amount paid along with compensation and other reliefs.
The facts leading up to the present Complaint are that the Complainant booked an apartment (hereinafter referred to as the Unit) measuring 1295 sq. ft. vide Application for a total consideration of Rs. 1,49,26,860/- in the project of the Opposite Party called "Godrej Summit" located at Sector - 104, Gurgaon, Haryana and agreed for construction linked payment plan . The relevant details of the Unit of the Complainant and other related details is in the table as under:
Sr No
Particulars
1
Complainant
Mr. Vaibhav Saha and Mrs. Deepshikha Kohli
2
Allotment Letter and Apartment Buyer Agreement
23.07.2014
4
Unit No. C00004, Ground Floor 5 Committed date of possession as per Agreement 23.07.2018 6 Basic Sale Consideration Rs. 1,49,26,860/- (inclusive of EDC & IDC Charges, Car Parking Charges and Other Charges.
7Amount Paid Rs. 38,34,785/-
8. Offer of Possession 28.06.2017
9. Termination Letter 09.12.2017
10. Cancellation Letter 21.02.2018 The basic sale price of the unit was Rs.1,49,26,860/- (inclusive of EDC & IDC Charges, Car Parking Charges and Other Charges). Thereafter, vide Provisional Allotment letter dated 23.07.2014, the Opposite party allotted Unit No. C00004, Ground Floor to the Complainants.
The Complainants paid an amount of Rs.38,34,785/- to the Opposite Party towards the consideration of the Unit before issuance of the Allotment letter and Apartment Buyer's Agreement. However, the same has not been executed by either party till date.
The Complainants received a letter dated 28.06.2017, whereby Complainants were informed that their Unit was fully ready for possession and requesting the payment of an outstanding amount of Rs.1,19,03,000/-. Thereafter, the Complainants visited the site and were shocked to find that none of the promised facilities, such as lifts, generators, approach road, water supply, security, and independent primary or nursery schools were provided as detailed in Schedule VIII of the Agreement. When they inquired about these facilities, the Opposite Party responded that these were not part of the standard Agreement and would be provided at the company's discretion.
Aggrieved by the response, the Complainants requested a refund of their deposit with interest, as they no longer wished to take possession of the premises. However, the Opposite Party issued a Termination Letter via email on 09.12.2017 stating that the earnest money paid by the complainants had been forfeited. Thereafter, the Complainants received a Cancellation Letter via email on 21.02.2018, stating that their Unit allotment was cancelled. As a result, Rs.37,12,906/- was forfeited towards earnest money, interest on delayed payments, and other charges. The remaining amount of Rs.1,97,992/- via cheque was refunded without interest.
The Complainants stated that as per Clause 4.2 of the Agreement, the Opposite Party had promised to hand over possession within 48 months from the start of construction. The Complainant further stated that the construction of the project remains incomplete, making it impossible for them to move into the building with their family. Initially, officials from the Opposite Party had assured the Complainants that development work would be finished soon and possession would be handed over. However, despite repeated follow-ups, no progress has been made. Additionally, the road directly below the Complainants apartment has become a thoroughfare for vehicles, disrupting the peaceful living environment that was not part of the original master plan. The Opposite Party failed to fulfil his promise of handing over the possession of the apartment within the terms and conditions as per the Agreement despite receiving the payments from time to time.
In the Possession Intimation Letter dated 28.06.2017, the Opposite Party issued invoices for the "On Notice of Possession" milestone and maintenance charges. According to Clause 5.2 of the Agreement, the apartment was supposed to be fully completed with all specifications listed in Schedule IV at the time of the Possession Notice. However, the same had not been done in the present case.
It is the case of the Complainants that they never received hard copies of the Possession Intimation Letter and invoices despite repeated attempts. The Opposite Party consistently avoided to provide a clear reply and delayed addressing the matter with various excuses.
Aggrieved by the above acts of the Opposite Party, the Complainants filed a Complaint in this Commission with prayer as under:
"i) Direct the Opposite Party to the refund of total amount received with respect to apartment as per the payment plan of the Buyer's Agreement i.e. Rs. 39,10,898/-
ii) direct Opposite Party to pay interest @18% per annum as compensation for the above mentioned amount.
iii) direct the Opposite Party to pay an amount of Rs. 5,00,000/- for punitive damages for committing unfair practice; and
iv) direct the Opposite Party to pay an amount of Rs. 5,00,000/- being the deterrent damages; and
v) direct Opposite Party to a sum of Rs. 2,00,000/- to each complainant towards the cost of litigation; and,
vi) grant such other/further relief as this Hon'ble Tribunal may deem fit under the circumstances.
The Opposite Party resisted the Complaint by taking the main objections as under:
This Complaint does not fall within the pecuniary jurisdiction of this Commission. The complainant has unjustly filed exaggerated claims to fall within the jurisdiction of this Hon'ble Commission.
The Complaint is not maintainable on the ground of non-joinder of necessary party.
The Complainants are not a consumer. The Complainants are aggrieved by the fall in the market prices and by the fact that they are not able to fetch the premium on sale of their flat. Thus, they are attempting to transfer their losses to the Opposite Party by falsely claiming deficiency in services.
The Opposite Party duly completed the construction within the agreed timeline, obtaining an Occupation Certificate on 20.06.2017. Thereafter, the OP issued a possession letter cum demand letter on 28.06.2017, requesting a payment of remaining amount of Rs. 1,19,03,000/-.
The Complainants defaulted under Clause 8 of the agreement by failing to pay the remaining 75% of the balance. The Complainant, instead of making the balance payment, raised the issue of the non-construction of a 24-meter road outside the project, which was the responsibility of the civic authorities.
The obligation to construct the 24 metre road was with the Government. Since the Government has not developed the 24-meter road outside the project, the Opposite Party, with Government approval, provided an additional access route to ensure tentative access for residents. The Government was responsible for acquiring the land for the 24-meter road outside the project, while the licensee was only required to construct the internal 24-meter road within the licensed area at its own cost and transfer it to the Government free of charge. The Opposite Party has already constructed the internal road. Due to the Government's failure to acquire the necessary land for the road, the Opposite Party filed various representations to the authorities without success and ultimately filed a Writ Petition (CWP No. 6187 of 2018) pending before the Hon'ble High Court of Punjab & Haryana.
The Opposite Party has been in constant touch with the Government Authorities with respect to water supply and has also written letter to the concerned authorities for providing update on the issue.
The Complainant failed to pay the balance consideration even after several reminders requesting for payments and are trying to take advantage of their own wrong. Thereafter, the Opposite Party issued a termination letter dated 20.02.2018 wherein a refund cheque of Rs. 1,97,992/- was sent to the Complainant.
The Complaint is liable to be dismissed on grounds of concealment of material facts and documents.
The Opposite Party has suffered huge losses due to the acts of the Complainants. The Opposite Party missed the opportunity to sell the flat to another buyer who would have adhered to the contract and paid the full sale price on time. The apartment was sold at reduced prices, and the Opposite Party incurred additional losses from brokerage fees and other consequential expenses.
I have heard learned Counsel for both parties and have gone through the material available on record.
Learned Counsel for the Complainants argued that the Complainants deposited Rs.39,10,898/- towards the Unit, out of which the Opposite Party forfeited Rs.37,12,996/- and refunded Rs.1,97,992/- without interest. Learned Counsel for the Complainants further argued that the allotment letter was entered into on 23.07.2014 along with an Apartment Buyer Agreement that was never executed. The Complainants had paid a booking amount of Rs.10,00,000/- to the Opposite Party on 23.12.2013. Ld. Counsel for the Complainants submitted that this is a covered case and cited the Judgment of this Commission, in Rajiv Singhal vs. Godrej Projects Development Ltd & Anr., CC/278/2018, decided on 21.10.2022. The matter has already been adjudicated in detail and, therefore, it may be relied upon and Complaint allowed.
Learned Counsel for the Opposite Party argued that the Complainants made a total payment of Rs.39,10,898/-. The total consideration for the said Unit after including all charges was Rs.1,57,00,909/- out of which Rs.1,17,90,011/- is still pending. The Complainants had agreed for construction linked payment Plan. The Opposite Party has duly completed the project within the agreed timelines as mentioned in Apartment Builders Agreement and offered possession to the Complainants vide letter dated 28.06.2017. The Opposite Party vide its letter dated 28.06.2017 asked the Complainants to pay the outstanding balance. Reminder letters were also issued dated 04.09.2017, 05.10.2017, and a final opportunity letter dated 24.11.2017 was sent to pay the outstanding dues against the Unit. The Opposite Party thereafter cancelled the allotment of Unit vide termination letter dated 09.12.2017. By the letter dated 20.02.2018, the Opposite Party refunded the balance amount of Rs.1,97,992/- after deducting Rs.37,12,906/- towards Earnest Money, penal interest on delayed payment and other charges. Learned Counsel for the Opposite Party further argued that the Complainant had never raised any objection with respect to illegality of the Earnest Money Clause or deduction made by the Opposite Party.
Without going through the preliminary objections of the Opposite Party, which has been discussed at length in the Order of this Commission in Rajiv Singhal (Supra), I will restrict only on the main issue whether the Complainants can claim the refund of the amount deposited.
Now, the main issue raised by the Complainant against the Opposite Party is regarding non completion of the project as per the Agreement, like, the 24 meter wide road, water supply, independent access to primary schools, distance to Dwarka expressway, Distance to airport, etc. Further, I have gone through the reply dated 08.02.2019 and documents of the Opposite Party where it has been stated that they are not responsible for the construction of any development outside its property. The objection has been dealt with at length in the Order of this Commission in Rajiv Singhal (Supra). I find no need to repeat the same. It is a fact that the Brochure claimed certain amenities to be provided to the Buyers. Evidently, these amenities have not been provided. The Brochure did not highlight that such amenities are subject to certain conditions external to the Project or Developers for which it is not responsible. In the Order in Rajiv Singhal (Supra), the Complaint was allowed directing the Opposite Party to refund the deposit amount along with interest. These amenities were the main selling point for the Project. The Buyer is in his right to seek refund in their absence. In this regard, I will like to rely upon the Order of the Hon'ble Supreme Court in Wg. Cdr. Arifur Rahman Khan v. DLF Southern Homes Pvt. Ltd., (2020) 16 SCC 512 decided on 24.08.2020 wherein it has categorically held and observed as under:
In other words, what the developer holds out as a defence is that though there has been a failure on their part to provide the amenities, the flat buyers have the benefit of facilities in the surrounding area which has become urbanised. We cannot agree with this line of submissions. The reply of the developer seeks to explain the failure to construct the facilities on the ground that the "existing population cannot sustain these facilities" -- a school, commercial complex and healthcare facilities. This is a case involving an experienced developer who knew the nature of the representation which was being held out to the flat purchasers. Developers sell dreams to homebuyers. Implicit in their representations is that the facilities which will be developed by the developer will provide convenience of living and a certain lifestyle based on the existence of those amenities. Having sold the flats, the developer may find it economically unviable to provide the amenities. The flat purchasers cannot be left in the lurch or, as in the present case, be told that the absence of facilities which were to be provided by the developer is compensated by other amenities which are available in the area. The developer must be held accountable to its representation. A flat purchaser who invests in a flat does so on an assessment of its potential. The amenities which the builder has committed to provide impinge on the quality of life for the families of purchasers and the potential for appreciation in the value of the flat. The representation held out by the developer cannot be dismissed as chaff."
In view of the aforesaid discussion, I partly allow the present Consumer Complaint and direct the Opposite Party to refund the entire amount deposited by the Complainants along with interest @ 9% p.a. from the respective dates of deposits till realization within eight weeks of this Order. Any delay beyond eight weeks shall attract an interest @ 12% per annum for the same period.
18. Pending applications, if any, stand disposed of.
............................ BINOY KUMAR PRESIDING MEMBER