National Consumer Disputes Redressal
Parveen Khatoon & Anr. vs M/S. Paramount Propbuild Pvt. Ltd. on 28 March, 2024
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 575 OF 2020 1. PARVEEN KHATOON & ANR. HOUSE NO. J-3/31, FLAT B-4, KHIRKI EXTENSION, MALVIYA NAGAR, NEW DELHI-110017 2. MR. SHAMSHAD ALAM AZMI S/O LATE SH. MOHAMMAD TYEB AZMI, UNIT NO. B-185, PARAMOUNT GOLFFORESTE, PLOT NO. BGH-A, SURAJPUR, SITE-C(EXTN.), HOUSING SECTOR, GREATER NOIDA, U.P. ...........Complainant(s) Versus 1. M/S. PARAMOUNT PROPBUILD PVT. LTD. THROUGH ITS MANAGING DIRECTOR 208, 2ND FLOOR, SIKKA MANSION, LSC, SAVITA VIHAR, DELHI-110092 2. M/S PARAMOUNT PROPBUILD PVT. LTD. ALSO AT: H-123, SECTOR-63, NOIDA, UTTAR PRADESH-201301 ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE SUDIP AHLUWALIA,PRESIDING MEMBER
FOR THE COMPLAINANT : MR. NAVEEN PANWAR, ADVOCATE
MS. SUHANI KUNDRA, ADVOCATE FOR THE OPP. PARTY : MR. PRAGYAN P. SHARMA, ADVOCATE
MR. SHASHANK KUMAR, ADVOCATE.
Dated : 28 March 2024 ORDER
JUSTICE SUDIP AHLUWALIA, MEMBER
This Complaint has been filed under Section 21(a)(i) of the Consumer Protection Act 2019, alleging deficiency in service and unfair trade practice on the part of the Opposite Party and seeking fresh allotment/possession letter along with other ancillary reliefs.
2. The factual background, in brief, is that upon the Complainants' son having reached a marriageable age, they sought a larger residence and approached the Opposite Party for purchase of a Unit in the 'Paramount Golfforeste' Project at Plot No. BGH-A, Surajpur, Site-C (Extn.), Housing Sector, Greater Noida, U.P. The Complainant No. 2, who was running an automobile workshop in Noida, decided to purchase a Unit in the said Project based on the Opposite Party's representations and assurances. Consequently, the Complainants booked and secured allotment of Unit No. C-229-A in the Project for Rs. 96,29,375/-. A loan of Rs. 56,26,636/- was obtained and disbursed to the Opposite Party on 31.07.2016 by Union Bank of India, later transferred to HDFC Bank.
3. The Opposite Party issued an Allotment Letter dated 09.07.2016, stating that the possession would be handed over within six months, with pre-EMI to be paid by the Opposite Party under the subvention scheme. After initial payment, the Opposite Party ceased pre-EMI payments. As per Clause 33 of the Allotment Letter, the Opposite Party is obligated to compensate the Complainants for possession delays.
4. On 19.06.2017, an offer of possession for Unit No. C-229A was issued, but on inspection in March and June 2018, the Complainants found a substandard construction. Following complaints, the Opposite Party offered to transfer the booking to Unit No. C-433, with assurances of early possession. However, no steps were taken to effect the transfer or complete civil work and fitments. The Opposite Party demanded payments for Unit No. C-229A, but the Complainants requested completion of construction before paying dues. The Opposite Party failed to pay interest under the subvention scheme, as per the Allotment Letter term. Despite clear records of payments, the Opposite Party charged an additional amount of Rs. 1,50,980/-, issuing an acknowledgment on 09.08.2018.
5. The Complainants agreed to a proposal for acquiring Unit No. C-433, instead of C-229-A, but the Opposite Party failed and neglected to issue a new Allotment Letter, and made no progress on the civil work. The Complainants, forced to rent another Unit, faced pressure for payment without possession of Unit No. C-433. The Opposite Party, instead of addressing the Complainants' concerns, demanded surrender of Unit No. C-229-A documents for a new Allotment Letter for Unit No. C-433. Despite responses from the Complainants, the Opposite Party failed to provide an Allotment Letter or outstanding dues details. Following a Legal Notice on 02.08.2019 (erroneously dated as 02.08.2018), the Opposite Party harassed the Complainants without completing the necessary work in Unit No. C-433. Forced to rent another Unit, the Complainants faced undue pressure and false assurances. They nevertheless requested possession of Unit No. C-433, which remained uninhabitable. The Opposite Party's actions thus amount to unfair and restrictive trade practices, deficiency in services, and deliberate delays causing wrongful losses and injuries to the Complainants.
6. Hence, they have approached this Commission and sought the following reliefs -
"a) Direct the Opposite Party to issue fresh allotment and possession letters in respect of Unit No. C-433 in the project namely Paramount Golfforeste, Plot No. BGH-A, Surajpur, Site C (Extn.), Housing Sector, Greater Noida, U.P.; and
b) Direct the Opposite Party to carryout civil work and fitments in Unit No. C-433 and give physical possession of the same to the Complainants at the earliest possible; and
c) Direct the Opposite Party to return/adjust an amount of Rs.25,78,762/- (Twenty Five Lakhs Seventy Eight Thousand and Seven Hundred Sixty Two Only) being the pre-EMI paid by the Complainants as instalments to the lender Bank from June, 2017 till June, 2020 and thereafter the amount that would be paid by the Complainants towards EMI for the housing loan till the possession of the unit C-433 along with interest pendent lite @ 24% per annum; and
d) Direct the Opposite Party to pay/adjust the penal amount @ Rs. 5 per sq. ft. (Rs. 12425/-) from the month of June, 2017 till the date of handing over the possession of Unit No. C-433; and
e) Direct the Opposite Party to refund or adjust an amount of Rs.2,45,500/- (Rupees Two Lakhs Forty Five Thousand and Five Hundred Only) being the extra amount paid by the complainant towards PLC charges for a corner Unit; and
f) Direct the Opposite Party to pay compensation towards mental harassment, agony and hardship faced by the Complainants because of acts and conduct of the Opposite Party to the tune of Rs. 25,00,000/- (Rupees Twenty Lacs Only); and
g) Award the cost of litigation amounting to Rs. 5,00,000/-
h) Pass such other further order(s) which this Hon'ble Commission may deemed fit and proper in the facts of the case and in the interest of justice."
7. The Opposite Party filed its Reply to resist the present Complaint in which it has, at the outset, denied all material averments made in the Complaint. It has raised the following main objections -
a. That on 19.06.2017, the Complainants were offered possession of the Unit in question. Despite explanations provided through a letter dated 09.07.2016 and various interactions between the Opposite Party and the Complainants, the Complainants have misrepresented the demand raised for the Villa. They have disregarded the agreed allotment between both parties and have not made the payment for the unit in question;
b. That despite the offer for possession, the Complainants did not pay the outstanding amount as on the date of filing the reply, despite repeated requests by the Opposite Party. According to the payment plan, the Complainants were supposed to deposit Rs. 77,03,500/- (excluding taxes) within 30 days of booking, i.e., by 25.07.2016. However, they consistently defaulted from the start, failing to deposit even 80% of the total amount agreed upon. This non-adherence to the payment schedule seems deliberate and intentional on their part;
c. That the Opposite Party, in a consumer-friendly gesture, offered a significant rebate on interest and holding charges through a letter dated 14.06.2018. They proposed a 75% reduction in interest and 50% reduction in holding charges if the Complainants settled the balance amount between 15.06.2018 and 15.07.2018. Despite this offer, the Complainants who were lacking in funds, a year later after the possession letter, presented an unsubstantiated story. They raised baseless allegations and shared photos without any identification of the specific villa. Notably, none of the photos provided by the Complainants displayed the villa number or offered any indication that they related to the specific unit booked by the Complainants in question;
d. That the Opposite Party denies the fabricated allegations concerning Unit No. C229A but, in a customer-centric approach, offered the Complainants the opportunity to choose a new unit within the same project. Subsequently, the Complainants selected Unit No. C-433, which was thoroughly inspected and approved by them. On 07.08.2018, the Opposite Party's executive informed the Complainants about the procedures for shifting to the new unit, involving surrendering of the original documents of the earlier unit, signing the allotment letter for the new unit, and settling the balance amount. However, the Complainant No. 2 indicated that he would return to the office later to complete the formalities, as he did not have the original documents at the time.;
e. Following the Complainants' failure to complete formalities for both Unit No. C-229A and Unit No. C-433, the Opposite Party issued reminders on 15.04.2019 and 18.02.2020. Despite efforts including sending an executive with a fresh allotment letter for Unit No. C-433, the Complainants did not surrender the old booking papers, nor signed the new Allotment Letter. Consequently, the claim of delay in offering possession is baseless. The Opposite Party asserts that the Complainants, being investors are refraining from taking possession due to a sluggish real estate market without any resale opportunities, thereby initiating this meritless legal action.
8. Rejoinder has been filed on behalf of the Complainants, who have denied the contents of Reply filed by the Opposite Party. They have stated that they sold their flat bearing no. J-3/31, B-4, Khriki Extension, Malviya Nagar to arrange for funds to purchase the subject property. The Complainant No. 1 has undergone a knee surgery and the Complainants are staying in Villa No. 2-185 PGF since September 2019. The subject property is being purchased by the Complainants for their self-use and they are ready and willing to file an affidavit in this regard if so directed by this Hon'ble Commission; That the possession letter dated 19.06.2017 in respect of the Unit No. C-229A was merely a farce as the roof of one of the bed room had caved in because of which the Complainants vide letter dated 11.08.2018 gave their willingness to take possession of Unit No. C-433.
9. Affidavit in Evidence has been filed by Complainant Ms. Parveen Khatoon; Affidavit in Evidence has been filed by Mr. Bhupendra Singh on behalf of the Opposite Party.
10. Ld. Counsel for Complainants has argued that the Unit No. C-229A was incomplete at the time of offer of possession. That when the Complainants visited the Unit, to their utter shock they found that the roof of the bedroom of the Ground Floor had caved in. The Complainants then requested the Opposite Party to complete the construction work, but despite numerous visits and follow up, nothing was done by the Opposite Party; That the Unit No. C-229A was of substandard quality as the roof of a bedroom of the same had caved in. The alternative unit that was offered was far from complete and it was a garbage dump. The Opposite Party is harping on return of the documents relating to Unit No. C-229A but never represented that C-433 is ready for possession. No letter of possession for Unit C-433 has been given to the Complainants; That the Complainants run two Bosch Authorized Auto Workshops in Neb Sarai, Delhi and Noida, and for which they regularly file ITRs. Therefore the contention that they lacked funds is incorrect; That the Complainants are paying monthly rent for the premises taken on rent in the same project and are also paying EMI on the loan availed by them. They have faced constant mental harassment at the hands of the Opposite Party. Employees of the Opposite Party have been visiting and pressurizing them to pay the outstanding amount without preparing the Unit for being habitable and ready for possession; That the claim of the Complainants is valued above Rs. 1 Crore and hence this Commission is vested with pecuniary jurisdiction to entertain and adjudicate the present Complaint.
11. Ld. Counsel for Opposite Party has argued that the offer of possession is valid and legal. The Opposite Party had obtained Construction Certificate and all clearances for the project. The Complainants were duly informed that the possession has been offered and the Complainants are liable to clear the outstanding dues and take possession of the said property. The Complainants are bound to take possession of the said property as per law once the possession has been legally offered to them. This view was taken by this Hon'ble Commission in "Sudha v. Jaiprakash Associates Ltd., 2021 SCC OnLine NCDRC 166"; That the Villa was complete in all respects for taking possession when it was offered to the Complainants. The photographs annexed by the Complainants are disputed and do not verify that they are photographs of Unit No. C-229A. All the Villas are duly numbered but no such number is visible in the photographs. In fact, the Villa C-229A was complete in all respects. The Villa only required the finishing work. In order to maintain the freshness of the unit the final coat of paint, finishing of flooring, installation of bathroom fittings, hardware accessories and all the final cleaning of the Unit shall be done after the dues are cleared by the Complainants; Complainants were not taking possession in violation of Allotment Letter, the Complainants were informed of the process of possession which required them to clear the outstanding dues; That the Complainants had no funds to take possession and therefore came up with a false statement that the Villa was not ready for possession. The Complainants have failed to deposit the basic balance amount of Rs. 40 lakhs and raised false excuses just to protect themselves from paying the amount and penalty on it; That the Opposite Party has offered an alternative Unit to the Complainants as it is a consumer-friendly Company. The Complainants were informed of the process to transfer of the said Unit from C-229A to C-433 but they took no steps to transfer the bank loan from Unit No. C-229A to C-433; That there is no deficiency of service on the part of the Opposite Party; That the present Complaint lacks pecuniary jurisdiction as the price of the Unit is Rs. 96,29,375/-.
12. In view of such allegations, denials and counter allegations against each other by both the contesting sides to vital questions have emerged before this Commission, a balanced findings on which would lead to an equitable and justifiable final adjudication. Those questions can be summarized as follows :-
i) Whether the requisite formalities required for surrender of the previous Unit were communicated to the complainant by the opposite party and if so, by what means ?
ii) Whether the Complainant at any stage had themselves sought extension of time for making entire balance payment when the previously alleged Unit was ready as claimed by the Opposite Parties ?
13. With respect to the first question noted above, the Opposite Party has drawn attention to its letters addressed to the Complainant dated 18.2.2020 and 7.3.2020, which are Annexures R-12 & R-13 to its Written Statement. In the first letter dated 18.2.2020, the Complainants were informed that on their earlier request to shift their booking from Unit No.C-229-A to C-433 for the reason that the previously booked under Unit is under maintenance and the Complainants were therefore, requested to surrender the documents pertaining to previously allotted Unit and visit the Corporate Office of the Opposite Party for issuance and signing of the new Allotment Letter with respect to Unit No.C-433.
14. In the subsequent letter dated 7.3.2020 (Annexure R3) it was mentioned that booking of the earlier Unit No.C-229-A from the internal system of the Opposite Party was cancelled on request of the Complainants. But the complainants did not comply with the other formalities byway of surrendering the documents pertaining to the said Unit and visiting the Opposite Party's Corporate Office for issuing and signing of the new letter of Allotment with respect to Unit No.C-433. The Complainants were therefore, again requested to do the needful at the earliest, in which event, all the payments made by them towards Unit No.C-229-A would be shifted to Unit No.C-433, and booking of the said new Unit would be done at the same old rate at which the earlier Unit had been booked.
15. It transpires that in spite of the aforesaid letters, the Complainants never returned the original allotment documents pertaining to the previously booked Unit No.C-229-A, nor even sent any written communication indicating why they were not responding to the request for return of such original document.
16. In relation to the second question noted in the earlier paragraph, the Ld. counsel for the Opposite Party has drawn attention to the own letter of Complainant No.2 dated 29.8.2017, in which its finance "Tata Capital Housing Finance Limited" was requested to change his EML account from the Union Bank to a different account of HDFC Bank ostensible "due to technical reasons." The submission of the Opposite Party in this regard is that such request for change of the EME account is in itself a give away that the Complainants were facing some financial issue on account of which, they were not able to pay the EMIs as agreed from their original account in the Union Bank and therefore, needed to switch over to a different account in the HDFC Bank. The Complainants from their side have however, denied that there was any financial crunch on account of which they were not in a position to pay the outstanding balance for Unit No.C-229-A when possession was offered to them on 19.6.2017 as they did not pay even the complete second instalment of Rs.72,22,031/- and had paid only Rs.56,26,636/- on 31.7.2016 and therefore, a balance amount of Rs.72,22,031/- remained to be paid on or before 25.7.2016, but was never paid to the Opposite Party without any explanation. In this context, the aforesaid letter of the Complainants dated 29.8.2017 requesting for change of EMI bank account would clearly go to support the contention of the Opposite Party that the Complainants faced with some financial crunch at the relevant time and themselves sought more time to make the payment. But to avoid the consequences of such delay in making payment by way of penal interest on the same, they raised false claim that the originally booked Unit No.C-229-A was actually not complete or not in a habitable condition.
17. It is a matter of record that the Completion Certificate for the complete Project comprising of 1988 Villas in favour of the Opposite Party had been issued by the Uttar Pradesh State Industrial Development Corporation Ltd. as far back as on 7.1.2015. Copy of the relevant Completion Certificate is on record as Annexure R-3 to the Written Statement of the Opposite Party.
18. The explanation of the Complainants in this regard is that the Unit in question was not found to be in a habitable condition and its roof had allegedly found to have caved in when the Complainants inspected the said Unit, although the Opposite Parties have denied such claim. Nevertheless, assuming the allegations of the Complainants were to be true, sight cannot be lost of the fact that the offer of possession was given to the complainants 2½ years after the Completion Certificate had already been issued by the competent Authority. So any damage or wear & tear of the constructed villas which remained unoccupied through this period was not altogether unlikely, and the Opposite Party was bound to deliver the same in a fully habitable condition to the concerned allottee after final payment, by doing the needful for repairing any damage or loss to any given Unit during such prolonged period of non-occupation and non-maintenance.
19. For this reason, a careful analysis of letter offering possession becomes vital. In the said letter dated 19.6.2017 (Annexure R-6), it is seen that on the last page, it has been mentioned "the finishing work of the Unit is likely to take approximately 90-120 days. In order to maintain the freshness of the Unit the only final quote of paint finishing of flooring, installation of bath room fitting, hardware accessories and final clearing of the Unit shall be done during this period only after clear of dues by you." It is therefore, clear that while offering possession, the Opposite Party was itself conscious that the Unit in question was still not complete or in a habitable condition, although the same was undertaken to be made completely habitable after doing all the finishing works within 90-120 days from the date of final payment.
20. In this over view of the matter, it would be difficult to categorically blame only one of the parties for all the un-pleasantness which has occurred between them till filing of the complaint and even thereafter. It may be mentioned in this regard that the undertaking to deliver actual possession in 90-120 days after full payment was given by the concerned Allottees ex facie is a rather unfair condition although it has been described by the Ld. Counsel for Opposite Party as the "normal market price.", since admittedly, the Completion Certificate was available with the Opposite Party long before offer of possession made in June.2017.
21. Similarly, the contention of the Complainants that they did not make any payment as the originally allotted Unit No.C-229-A and even the substituted Unit No.C-433 were not found in a habitable condition, would also not appear to be altogether worthy of complete credibility. This is so because, as already seen, the own letter of complainant No.2 to its finances dated 29.8.2017, which was issued shortly after the payment had become due at the end of July of the same year would indicate that there is some element of truth in the Opposite Party's contention that the Complainants themselves were not in a position to make the complete payment within the prescribed time, and had consequently requested for extension of time orally and preferred to change their allotment from the originally booked Unit No.C-229-A to C-433 without any actual request in writing. Furthermore, they never ever responded to the Opposite Party letters (Annexures R-12 & R-13) requesting them to return the original documents pertaining to the allotment of previous booked Unit No.C-229-A, which resulted in the Opposite Party becoming unable to allot the said Unit to any other purchaser for all these many years.
22. It would therefore, appear fair and equitable that neither side be severely penalized for the unfortunate state of affairs, since both the sides have played their own contributory parts leading to this situation. The Complaint is therefore allowed in part by firstly directing the Complainants to return the original documents pertaining to allotment of previous Unit No.C-229-A to the Opposite Party within a month from the date of this order and comply with the other formalities related to such surrender of the previous Unit after which, within four weeks, the Opposite Party shall offer possession of Unit No.C-433, and deliver possession of the same in a fully habitable condition within another four weeks subject to the Complainants making payment of the entire balance unpaid amount along with a nominal interest of 6% p.a. upon the same for the period between the date of filing of this complaint (24.6.2020), till the date of final payment.
23. No other compensation is granted to the Complainants in the peculiar facts and circumstances of the case.
24. Parties to bear their own costs.
25. Pending application(s), if any, also stand disposed off as having been rendered infructuous.
......................................J SUDIP AHLUWALIA PRESIDING MEMBER