National Consumer Disputes Redressal
Sandeep Kumar & 3 Ors. vs M/S. Media Video Ltd. (Real Estate ... on 7 December, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 142 OF 2012 WITH
IA/1422/2013,IA/1466/2013,IA/3043/2015,IA/3731/2014,IA/3732/2014,IA/4421/2014,IA/6987/2015,IA/7262/2015 1. SANDEEP KUMAR & 3 ORS. S/o. Sh. Ratan Lal, R/o. Devi Wali Gali, VPO-Beri, Jhajjar, Haryana 2. Anil Kumar Gupta S/o. Sh. Ram Karan Gupta, R/o. 2253/C-1, Shadipur, Gali Mandir Wali West Patel Nagar, New Delhi - 110 008. 3. Chetan Aggarwal S/o. Sh. M.P. Aggarwal R/o. Madhuban Colony Hospital Road, Solan - 173 212, H.P 4. Nishank Gupta S/o. Sh. Brij Moha Gupta R/o. H. No. 275, Sec- 15A, Faridabad - 121 007 ...........Complainant(s) Versus 1. M/S. MEDIA VIDEO LTD. (REAL ESTATE DIVISION) Through Its Managing Director,
R/o. B-86/1, Okhla Industrial Area,
Phase-II, New Delhi - 110 020 ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER HON'BLE DR. S.M. KANTIKAR, MEMBER
For the Complainant : see in the order For the Opp.Party : see in the order
Dated : 07 Dec 2015 ORDER
For the Complainants : Mr. Rakesh Mittal, Advocate
For the Opposite Parties : Mr. Sukumar Pattjoshi, Sr. Advocate with
Mr. Deepak Sabharwal, Advocate
MD. Faisal, Advocate and
Mr. Somesh K. Dubey, Advocates
Pronounced on : 7th December, 2015
ORDER
JUSTICE J. M. MALIK, PRESIDING MEMBER
The arguments and the written submissions are contrary to the oral submissions made by the learned counsel for the Complainants. Counsel for the Opposite Parties has also not filed the written arguments, as prayed. Counsel for the Complainants is directed to explain, how all the Complainants are having the similar interest. He argued that the money be refunded but in the written submissions, they have requested that possession of flat be given to Daizy Rani and her son.
Put up for clarification on 07.12.2015.
Dated: 07.12.2015
For the Complainants : Mr. Rakesh Mittal, Advocate
For the Opposite Parties : Mr. Sukumar Pattjoshi, Sr. Advocate with
Mr. Deepak Sabharwal, Advocate with
Mr. Jitendra Nath, Auth. Legal
ORAL ORDER
PER JUSTICE J. M. MALIK
1. This order shall decide the above mentioned three complaints, which are between the same Builder OP and the various allotees/consumers. The facts of these cases are almost same and the same point of Law is involved. M/s MVL Limited OP-the Builder floated a scheme in the year 2006 and aggressively marketed the said project promising high living luxury apartments, specially designed Swimming Pool, 24 hour power back up, Modular Kitchen, Covered Car Parking, Garden, Play Area, Security Club house, Rain Water Harvesting, Wi-fi Internet, Gymnasium etc. All the 17 complainants applied for the flats jointly or individually and paid the earnest money on the dates mentioned below:-
Name of the Complainant Date of booking 1. Sandeep Kumar 15.11.2006 2. Anil Kumar Gupta 15.11.2006 3. Chetan Aggarwal 02.08.2007 4. Nishank Gupta 13.12.2006 5. Shakuntala Devi & Suresh Chander 03.01.2009 (Wife and husband) 6. Deepak Balain 08.01.2009 7. Zeba Khan & Dr. Muhammed Amir Vakil 20.12.2007 (Wife and husband) 8. Daizy Rani & Romil 25.08.2010 (Mother and son) 9. Nirpesh Bhardwaj 07.08.2006 = Two flats (one for himself and one For his brother Manish Bhardwaj) 10. Rajesh Kumar & Sunita 18.12.2012 (Husband and wife) 11.Priyanka Verma & Ravi Kant Verma 19.07.2011 (Wife and husband) 12. Kailash Anand 19.06.2006
2. All the complainants booked the flats. They paid different amounts upto 65% of the total cost. It was agreed that the possession of their flats would be handed over, upto 31st December 2010 or the dates mentioned in their respective agreements, approximately 4 years after the initial booking.
3. This is an indisputable fact that the three allottees have already got the possession, namely, Sh. Sandeep Kumar, Sh. Anil Kumar Gupta and Sh. Nishank Gupta. The other remaining complainants have not got the possession, till the institution of these cases in years 2012 and 2014. It is contented that the Opposite Party indulged in unfair trade practices for deceiving the complainants.
4. It was also argued that the OP had changed its original plans and increased the number of floors, flooring area, ratio and density per acre. It has caused inordinate delay in completion of said projects. It has changed zoning plans, usage pattern, super area, carpet area and alteration of structures. This is an indisputable fact that the OP, of its own accord, arbitrarily and despotically, without seeking the consent of the allottees, has changed the tower number. This is deficiency on its part. The consumers cannot be compelled to accept the flats according to the sweet choice of the OP. The choice of OP cannot be imposed upon the consumers. It would be worst kind of highhandedness on the part of the OP. It is contended that the OP issued a new demand letter stating that it was charging similar sized flat of 1565 Sq.Ft. to 1800 sq.ft., but the OP illegally demanded the allotted superficial increase in the area. Succinctly stated, the complainants have prayed that their amounts be refunded.
5. Opposite Party has contested all these cases. The counsel for the OP vehemently argued that the Opposite Party should be given 9 months' time to obtain the occupation certificate. He vehemently argued that the flats are ready and they are ready to give the possession. On 25.04.2012, the site report was filed by the Junior Engineer, which runs as follows:-
"As per the site report of Junior engineer, construction was as per revised building plan wherein revised setbacks and inter block distances are available at site and construction activity is mentioned below:
1. Tower1-G+10(T-3 not constructed)
2. Tower 2,3,5-G+ 10 (construction completed)
3. Tower 4- Not constructed"
6. It is an admitted fact that Tower No. 4 was not constructed in the year 2012, but the counsel for the OP submits that it was ready in the year 2013, however, the counsel for the complainants denies this fact. Counsel for the OP submits that the completion certificate was applied for, on 13.09.2013.
7. Case of Sandeep Kumar, Anil Kumar Gupta & Nishank Gupta They have already got the possession. They cannot ask for refund of money. The OP is directed to furnish the occupation certificate, within 9 months from today, as agreed, otherwise, it will carry additional penalty in the sum of Rs.2,000/- for each of the complainants, after the expiry of said 9 months. We were given the example of Coca Cola Colony in Bombay and that has necessitated us to pass such like order. There was a delay in putting them in possession in the premises in dispute. Consequently, they be paid penalty of delayed possession @ 15% per year, till the possession is given. Starting point will be 36 months or date mentioned in the agreements, the construction period plus grace period of 6 months i.e. after 42 months or agreed period in the agreements, plus 6 months' grace period from the receipt of the first amount, till the possession is given. We also award the costs of litigation in the sum of Rs.25,000/- to each complainant. Opposite Party is also directed to provide covered car parking, club membership, power back-up, park facing flat, wherever applicable and corner flat, wherever is applicable, as mentioned in the agreement, within a period of 9 months, as already ordered, otherwise, it will return the entire amounts paid by the complainants, alongwith interest @15% p.a. from the date of receipt of the money, till realization.
8. Counsel for the complainants submits that cost of superficial area should not have been charged. On the other hand, counsel for the Opposite Party has invited our attention towards Clause 2 L of the agreement, which mentions:-
"2.l Alterations in the Lay out Plan That the Developer/Principal Lessee shall have the right to effect suitable alterations in the layout plan, if and when found necessary. Such alterations may include change in location, number and boundary of floor, block and/or area of the Apartment. Provided, however, if as a result thereof, there be any change in the location, number boundary or area of the said Apartment, such change in the area shall interalia entail proportionate increase or decrease in the sale consideration of the build up area of the Apartment at the original rate at which the unit was booked for the difference in area".
And clause 4 D (i) & (ii) , which are reproduced here as under:-
"4.d Change in Specifically/Super Area That the allotment of the apartment is subject to alterations necessitated during the construction of the Apartment. The Developers/Principal Lessee in pursuance thereof reserves the right to effect suitable and necessary alterations in the layout plan, which may involve change in the position, number and boundary of the apartment. If due to such change, there is any increase/decrease in the super area the revised price shall be calculated at the original rate at which the apartment was booked/allotted.
That the specifications of the apartment are subject to change as necessitated during construction and in such an event material of equally good quality shall be used".
9. Counsel for the complainants submits that 'any area' should be with the approval of the competent authority, which is U.I. Bhiwadi, in this case. The production of the occupation certificate will answer these questions.
10. Case of Nirpesh Bhardwaj He had booked two flats, one for himself and the other for Manish Bhardwaj. The name of Manish Bhardwaj does not appear anywhere. Had the intention of the complainant been genuine, he would have registered the flats in both the names, separately, even if the amount has been paid in the name of his brother. However, the Complainant has produced the account particulars of Shri Manish Bhardwaj and his wife Smt. Chandra Kanta, which go to show that they had paid a sum of Rs.6,99,593/- through demand draft. The money should have been paid in the name of Shri Manish Bhardwaj, himself, yet, there is no evidence in rebuttal of the same, therefore, we accept the contention raised by Nirpesh Bhardwaj. It is made clear that in case, the amount is refunded, the same will be paid to both of them, separately, through separate demand drafts. His case/cases will be considered under the head of other complainants.
11. Case of Other Complainants First of all, it was stated that Daizy Rani is a widow and she wants flat. But at this stage, Counsel for the Complainants withdraws that request and submits that refund be made to all of them.
12. We are of the considered view that all the remaining complainants have proved their case. There is a delay of about 5 years' or less in putting the complainants in possession of the flats. Counsel for the Opposite Party submits that he had applied for the occupation certificate, in the year 2013. It is strange that the occupation certificate could not be acquired, even after the expiry of two years. They are taking the gullible persons, up the garden path. The complainants, who worked hard, earned money for acquiring the house, but they were taken for a ride, by scrupulous persons, like OP. It is well said that Justice delayed is not only Justice denied, it is also Justice circumvented, Justice mocked and the system of Justice undermined. There is a magic in that little word "home", it is a mystic circle and surrounds comforts and virtues never known beyond its hollowed limits. The consumers are exasperated by senseless delay. We wish that they must get a comfortable flat during their life time.
13. Consequently, the complainants are entitled of refund of money. All the remaining complainants be refunded the money that they have paid with interest @15% from the date they paid till realization. They are also entitled to costs in the sum of Rs.25,000/- each complainant.
......................J J.M. MALIK PRESIDING MEMBER ...................... DR. S.M. KANTIKAR MEMBER