National Consumer Disputes Redressal
Manish Chopra & Anr. vs Tata Housing Development Co. Ltd. on 27 December, 2022
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 1238 OF 2018 1. MANISH CHOPRA & ANR. C-210, SARVODAYA ENCLAVE,
NEW DELHI - 110 017 2. SH. B.K. CHOPRA C-210, SARVODAYA ENCLAVE,
NEW DELHI - 110 017 ...........Complainant(s) Versus 1. TATA HOUSING DEVELOPMENT CO. LTD. 3, GROUND FLOOR, NAURANG HOUSE,
21, KASTURBA GANDHI MARG,
NEW DELHI - 110 001 ...........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. Kanika Agnihotri, Advocate
: Mr. Y. Gupta, Advocate For the Opp.Party : Mr. Saifur Rahman Faridi, Advocate
: Mr. Arjun Singh Rana, Advocate
Dated : 27 Dec 2022 ORDER
1. Heard Ms. Kanika Agnihotri, Advocate, for the complainants and Mr. Saifur Rahman Faridi, Advocate, for the opposite party.
2. Manish Chopra and Sh. B. K. Chopra have filed above complaint, for directing the opposite party to (i) refund Rs.25063436/- with interest @18% per annum, from the date of respective deposit till the date of payment, (ii) pay the amount of rent as paid by the complainants from due date of possession till the date of refund, (iii) pay Rs.1000000/- as compensation for mental agony and harassment, (iv) pay Rs.500000/-, as litigation cost; and (v) any other relief which is deemed fit and proper in the facts and circumstances of the case.
3. The complainants stated that Tata Housing Development Company Limited (the opposite party) was a company, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing project and selling its unit to the prospective buyers. The opposite party launched a group housing project, in the name of "Tata Primanti" at village Fazilpur Jharsa, Sector-72, Gurgaon in the year 2011 and made wide publicity of its facilities and amenities. Believing upon the representations and promises of the opposite party, Manish Chopra, who were in need of a residence, booked a Villa on 21.01.2012 and deposited booking amount of Rs.5000000/-. The opposite party allotted Villa no.-VA-29, admeasuring 7000 sq.ft. total sale price Rs.81025000/- to Manish Chopra on 07.02.2012 and executed Apartment Buyer's Agreement in his favour on 24.08.2012. Under Payment Plan, 25% of sale price was payable within 45 days of allotment, 75% of sale price was payable on completion of brick works and other charges were payable at the time of offer of possession. Clause-4.2 of the agreement provides due date of possession as on or before 21.03.2014. Manish Chopra deposited total Rs.22305050/- till 14.04.2014. The opposite party, vide letter dated 04.05.2015, informed that the construction was delayed and likely to be completed till August, 2015. The opposite party, vide letter dated 17.11.2015, informed that due to various force majeure reasons the construction could not be completed. Manish Chopra, vide letter dated 19.08.2016, requested to refund his money along with interest, as possession had been unreasonably delayed. In spite of service of letter, the opposite party did not respond. Then Manish Chopra talked with the officers of the opposite party, who threatened that in case of refund, huge amount would be deducted and only minuscule part would be refunded. They advised to switch the booking of villa to an apartment, which was likely to be completed soon. As per direction, complanant-1 signed transfer application on 07.11.2016. The opposite party issued Allotment Letter dated 09.12.2016, allotting Apartment No.3901, Tower-2, super area 2905 sq.ft. in the project "Primanti" and executed a fresh Apartment Buyer's Agreement dated 26.04.2017, in which sale consideration of Rs.24474625/- was mentioned. Clause-5.2 of this agreement provides due date of possession as on or before 30.06.2017. The opposite party issued a letter of offer of possession dated 28.06.2017 of Apartment No.3901, informing that "Occupation Certificate" has been obtained on 23.06.2017 and Final Demand Letter for Rs.2786423/-, giving due date for payment up to 31.08.2017. Manish Chopra requested for inspection of the apartment in presence of an officer of the opposite party. After a series of emails for inspection, the opposite party fixed 06.09.2017, for inspection, which was changed as 08.09.2017. Manish Chopra and his father-in-law Mr. Caprihan inspected the apartment on 08.09.2017 and found several deficiencies in construction of the apartment, which were pointed out to the officer of the opposite party in writing and request was made to remove deficiencies as early as possible. Mr. Caprihan also gave an email on 10.09.2017 to the opposite party for removing deficiency. The opposite party in its email dated 16.09.2017, acknowledged the deficiencies and assured that it would be removed. Manish Chopra was in financial difficulty, as such, he borrowed money from his father Sh. B.K.Chopra for payment of last instalment and in lieu of the money advanced by Sh. B.K.Chopra, Manish Chopra executed a transfer deed dated 14.11.2017 transferring the flat in dispute in favour of the father Sh. B.K.Chopra and mother Smt. Nirmal Chopra. The transfer deed was duly acknowledged by the opposite party and they made endorsement of the names of the transferees in the allotment letter. The complainants paid Rs.2758386/- on 28.11.2017. Inspite of payment of full amount of Rs.250634361/-, the opposite party did not take any care for removing deficiency in construction. Inspite of repeatedly requests, the opposite party did not provide any compensation for delay in possession. On these allegations, the complaint was filed on 21.05.2018 alleging deficiency in service.
4. The opposite party filed its written reply on 23.08.2018 and contested the complaint. The facts that Manish Chopra booked a villa on 21.01.2012, allotment of Villa No.29 and execution of Apartment Buyers' Agreement in favour of Manish Chopra on 24.08.2012, due to delay in construction of villa, the transfer of villa in to apartment by the opposite party on 19.08.2016 and execution of another agreement dated 26.04.2017 in respect of apartment and payment made by the complainants, have not been disputed. The opposite party took plea that due to force majeure reason the construction of villa could not be completed on time. High Court of Punjab and Haryana, by order dated 31.07.2012, passed in, Civil Writ Petition No.20032 of 2008, Sunil Singh Vs. Ministry of Environment and Forests and Ors., restrained usage of underground water. The opposite party applied for supply of STP water, which was sanctioned by the Administrator, HUDA on 17.09.2012. In the absence of the water, the construction work was stopped during 14.08.2012 to 19.07.2012. Stoppage of work led to demobilisation of labour from site and in absence of man power, the construction had been done with half strength during 18.09.2012 to 30.11.2012. High Court, by order dated 17.11.2015, imposed ban on excavation of sand. Therefore, construction of villa was delayed. The complainant-1 moved an application on 07.11.2015 for transfer of his allotment of villa into apartment. The construction was stopped from 29.07.2016 to 01.09.2016 due to heavy rainfall. National Green Tribunal banned construction for 7 days by order dated 08.11.2016. Allotment letter dated 09.12.2016 was issued allotting Apartment no.3901 in Tower 2 of the same project. Fire NOC was obtained on 07.12.2016. The opposite party completed construction and applied for issue of "occupation certificate" on 12.12.2016. Then Apartment Buyers' Agreement was executed on 26.04.2017, in which, due date for possession was mentioned as 30.06.2017. The "occupation certificate" was issued on 23.06.2017. Thereafter, the opposite party, vide letter dated 28.06.2017, offered possession of the apartment to the complainant. The opposite party communicated force majeure reason as well as delay in construction of villa to the complainant time to time. There was downward revision in EDC/IDC charges which was duly adjusted in the final statement of account as served to the complainants. The complainants are liable to pay Haryana VAT which was imposed by Government of Haryana. The complainants had to deposit the amount as demanded in the letter dated 28.06.2017 and take possession up to 30.08.2017, but the complainants had delayed payment and paid on 28.11.2017. In the meantime, Manish Chopra transferred the flat to Mrs. Nirmal Chopra and Sh. B. K. Chopra on 14.11.2017. The transferees also executed an Affidavit cum-Indemnity bond on 14.11.2017 to the effect to abide with the terms of the Apartment Buyers' Agreement. On the application of the transferees, their names substituted on 05.02.2018. In view of the fact that allotment of villa was transferred in allotment of apartment on the application of complainant-1, he is not entitled to claim any compensation inasmuch as possession was offered to him before due date of possession as mentioned in the agreement dated 26.04.2017. In any case for force majeure reason the construction was delayed and the opposite party was entitled for extension of time. The complaint has been filed supressing the material fact. The preliminary issues that the complaint on behalf of Manish Chopra is not maintainable as after transfer of the apartment by him on 14.11.2017, he left with no right, vexatious and exaggerated claims have been made in the complaint and the complainants cannot be treated as consumer, have been raised. The complaint is liable to be dismissed.
5. The complainants filed rejoinder reply on 03.05.2019, Affidavit of Evidence of Manish Chopra and Affidavit of Evidence of B.K.Chopra and documentary evidence. The opposite party filed affidavit of evidence of Kedar Shukla. Both the parties filed their written submissions.
6. We have considered the arguments of counsel for the parties and examined the record. Allotment of villa No.29 to Manish Chopra, execution of Apartment Buyers' Agreement in his favour on 28.04.2012 and deposits made by Manish Chopra of Rs.22305050/- have not been disputed. Under Clause 5.2 of the Apartment Buyers' Agreement dated 24.08.2012 due date of possession was 21.03.2014. Admittedly, the construction of villa was not completed nor possession was offered to Manish Chopra, till due date of possession. The opposite party took the plea of force majeure, but force majeure period was limited period i.e stoppage of construction during 01.08.2012 till 17.09.2012 due to stoppage of ground water use. Thereafter, the work was done on half strength during 18.09.2012 till 30.11.2012. So far as the order of Punjab and Haryana High Court dated 31.07.2012 is concerned, it was prior to the execution agreement dated 24.08.2012 and was well within the knowledge of the opposite party. The ground of demobilisation of labour around August, 2012 is also irrelevant inasmuch as agreement was executed on 24.08.2012. The ban on excavation of sand has been imposed in the year 2015, while due date of possession for the villa was 21.03.2014. Ultimately the opposite party expressed its inability to complete the construction of the villa in October, 2016. Similarly, the heavy rain fall was alleged during 29.07.2016 to 01.09.2016 ban by National Green Tribunal was imposed on 08.11.2016. All these force majeure reasons are not liable to be excluded. Thus there was deficiency in service on the part of the opposite party.
7. So far as change of allotment of villa into apartment is concerned, Manish Chopra had already deposited Rs.22305050/- and vide letter dated 19.08.2016 demanded for refund of his money, but the opposite party did not accept the demand rather threaten that in case of refund major portion would be forfeited and only nominal amount will be returned. Manish Chopra had no option except to accept the offer of the opposite party for conversion of the allotment of the villa into allotment of apartment. Allotment dated 09.12.2016 and Apartment Buyer Agreement dated 23.04.2017 are one sided and unreasonable. Therefore, it is not binding upon the complainants. On its basis, the opposite party cannot raise a plea that the complainants were not entitled for delayed compensation for delay in possession which was otherwise payable under the agreement dated 24.08.2012. The opposite party arbitrarily denied delayed compensation to the complainants.
8. The complainants have stated that after offer of possession a joint inception was made by the complainants and his father-in-law as well as the officers of the opposite party on 08.09.2017 in which various deficiencies in construction was pointed to the officer of the opposite party. The deficiencies were acknowledged by the opposite party vide e-mail dated 16.09.2017, but inspite of it, it were not removed although the complainants made payment of Rs.2758386/- on 28.11.2017. Ultimately due to non-removal of the deficiencies the complainants opted for refund instead of taking possession. The opposite party did not produce any communication informing the complainants that deficiencies in constructions, which were acknowledged by them, had been made good. On this ground also the complainants are entitled to claim refund.
9. The technical plea that the complainant Manish Chopra, had already sold the property to his father complainant-2 and mother. Therefore, complaint on his behalf is not maintainable and is not liable to be accepted. Inasmuch as even transfer of the allotment if the opposite party is not proving apartment to complainant-2 then the liability of complaint-1 towards complainant-2 is not taken away and complainant-1 can seek refund of money. In such circumstances, the complainants are justified in cancelling the allotment and seeking refund of his money.
ORDER
In the result, the complaint succeeds and is partly allowed. 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