National Consumer Disputes Redressal
Dushyant Sood vs M/S. Vatika Limited @ Vatika Triangle. on 28 September, 2021
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 1848 OF 2017 1. DUSHYANT SOOD S/O LATE SH. NARENDRA KISHORE SOOD,
AND CHARU SOOD,
W/O DUSHYANT SOOD, BOTH RESIDENT C1/302, THE LEGEND, SECTOR 57, GURGAON-122002 ...........Complainant(s) Versus 1. M/S. VATIKA LIMITED @ VATIKA TRIANGLE. THROUGH ITS DIRECTORS,
SUSHANT TRIANGLE, SIUSHANT LOK-1, BLOCK A,
MEHRAULI GURGAON ROAD, GURGAON-122002 ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE RAM SURAT RAM MAURYA,PRESIDING MEMBER
For the Complainant : Mr. Bhupendar Pratap Singh, Advocate
alongwith Complainant in person For the Opp.Party : Mr. S.K. Sahani, Advocate
Dated : 28 Sep 2021 ORDER
1. Heard Mr. Bhupendar Pratap Singh, Advocate, for the complainants and Mr. S.K. Sahani, Advocate, for the opposite party through video conferencing.
2. Dushyant Sood and Smt. Charu Sood (the complainants) filed this complaint for directing M/s. Vatika Limited (the opposite party), (hereinafter referred to as the builder) (i) not to create third party right, interest or title in property, bearing number-3/240/Simplex/ ST.82D-18/Signature 2 Vila, during pendency of the complaint, (ii) declare the demand dated 30.05.2017 as illegal to the extent that it exceeds Rs.5,44,857.27/-, the amount that the complainants are liable to pay at the time of taking possession, (iii) direct the builder to handover possession of the villa to the complainants on payment of Rs.5,44,857.27/- (iv) to pay compensation of Rs.44,59,565.16/-, (v) to pay compensation of Rs.15,00,000/-, for mental agony and harassment, (vi) to pay Rs. one lakh as the cost of litigation, (vii) to grant pendent lite and future interest @ 18 % p.a. on the above amounts and (viii) any other relief which the Commission deems fit and proper, in the circumstances of the case, be passed.
3. The facts as stated in the complaint and emerged from the documents are that the builder was a company, engaged in business of development and construction of residential and commercial buildings and selling its unit to the prospective buyers. The builders launched a project of villas in the name of "Bellevue Residence" being developed in Vatika India Next, at NH-8, Sector-82, Gurgaon. The name of the project was changed subsequently as Signature 2 Villas. The complainants booked a simplex villa and were allotted Type-Simplex No. 23/240-S/BR, admeasuring 240 sq. yard and build up area 1527 sq. ft., basic price Rs.88,60,000/-, in the said project, tentatively, on 08.09.2009. The complainants opted for "Home Loan Linked Payment Plan", under which 10% of the basic price was to be paid within 30 days, 10% within 90 days and 70% through home loan and remaining 10% at the time of offer of possession. The complainants deposited Rs.5,00,000/- on 28.08.2009, Rs.3,55,000/- on 28.09.2009 and Rs.8,55,000/- on 30.11.2009. Unit Buyer's Agreement (for short UBA) was executed between the parties on 27.11.2010. Under Clause-11.1 of UBA, the promised period of handing over the possession was 3 years from the date of execution of the UBA, subject to exception as given under clauses 12.1, 12.2, 12.3, 38 and failure of the applicant to pay instalments in time. In payment schedule for "Home Loan Linked Payment Plan", no pre EMI interest till possession was also assured, in the UBA. The builder, vide letter dated 20.01.2012, informed that due change in lay-out, re-allotment of the villas were required and called the complainants to participate in the process of re-allotment. The builder, vide letter dated 20.01.2012, informed that they had tied up India Bulls, for grant of Home Loan and terms of loan was also sent. The complainants, vide their letter dated 30.01.2012, lodged their protest against re-allotment and amendment of terms of the loan. The builder, vide letter dated 09.02.2012, informed that the complainants were allotted Villa No. 3/240/Simplex/ST.82D-1-8/Signature 2 Villas and sent Addendum, for signature of the complainants. The builder issued letters dated 09.02.2012 and 14.02.2012 along with addendum requiring the complainants to sign it. Thereafter, a meeting was held between the complainants and the management in March, 2012 and the complainants were assured that the possession would be handed over within 30 months of extended time and their EMIs will commence only after handing over the possession. On the assurance given by the management and having no other choice, the complainants signed the addendum on 05.04.2012. The period of 30 months also expired on 05.10.2015 but the complainants were nowhere close to possession. In the meantime, the loan was disbursed on 21.10.2014 and the EMI on the loan started from 01.12.2014. The details of EMI paid by the complainants have been given in paragraph 13 of the complaint. The complainants received a letter dated 30.05.2017, as notice for possession along with statement of accounts and the documents for execution. From the statement of account, it was revealed that Rs.48,11,945.84 was demanded for execution of final conveyance deed in favour of the complainants and delivery of possession. In this statement of account the built area of the villa was increased from 1527 sq. ft. to 1965 sq. ft. i.e. roughly 30% of the built up area and the area of villa was also increased. Thus, the cost has been exorbitantly increased. It was an unfair trade practice. Although, in the UBA the builder had promised to bear the pre- EMI interest of the loan till delivery of possession, but there was no adjustment of pre- EMI interest in the final account. The delivery of possession has been delayed for about 2 years, due to which the complainants have to suffer a loss. At the time of booking, the tentative cost of Villa was given to Rs.85,50,000/- and in the final statement of account the cost was shown as Rs.1,31,64.172.84/-. The complainants, vide e-mail dated 26.06.2017, repudiated the final demand and requested to hand over possession as on the original demands of UBA, but no reply was given. In fact due to delay in delivery of possession, the complainants had to suffer a total loss of Rs.60,59,565.16. On these allegations, the complaint was filed.
4. The builder contested the complaint and filed its written reply on 06.09.2017 in which it has been stated that Vatika India Next was granted licenses among others, bearing Nos.113/08 dated 01.06.2008 and 71/10 dated 15.09.2010 by Town & Country Planning Department, Haryana. Thereafter, the lay out plan for residential plotted colony was applied. The complainants approached through a broker for allotment Simplex Villa and moved their application on 28.08.2009, on which Villa no.23/Simplex was allotted tentatively to them as mentioned in allotment letter dated 08.09.2009 and the UBA dated 27.11.2012. In the application for allotment, the complainants have opted for 'Home Loan Linked Payment Plan' in which 70% of the total cost has to be paid through a home loan, in instalments, based on construction linked instalment. On sanction of layout plan, re-allotment was necessitated. The builder, vide letter dated 20.01.2012, informed the complainants that due change in layout, re-allotment of the villas was required and called them to participate in the process of re-allotment. After re-allotment, an addendum along with new 'Home Loan Linked Payment Plan' was sent to the complainants, for their signatures as various terms of the original UBA have become irrelevant. After reading and fully understanding, the addendum and new 'Home Loan Linked Payment Plan', the complainants signed it on 05.04.2012. Through this addendum, Villa No. 3/240/Simplex/ST.82D-1-8/Signature 2 Villas was allotted to the complainants. Under new payment plan, apart from earlier deposit, the complainants were required to deposit 30% of the basic price on re-allotment and construction linked payment was also rescheduled.The complainants were responsible for raising home loan and payment of its EMI. The builder was not responsible for anything except to bear pre-EMI interest till 30 months. The service of letter dated 30.01.2012 as alleged by the complainants was specifically denied. It has been stated that before execution of addendum dated 05.04.2012, several correspondences were made between the parties and entire circumstances were fully explained to the complainants. They executed addendum dated 05.04.2012, after being fully satisfied. According to the sanctioned lay out plan, built up area was increased to 1965 sq. ft.. The complainants were given notice of it. They, after going through it, were fully satisfied and executed an addendum dated 18.02.2017, by which they undertook to pay sale consideration on the basis of actual built up area. It is only after excess construction was raised on their undertaking, the notice for possession was given to them, and then they began questioning the increase in built up area. According to the sanctioned lay out plan, the area of the plot was increased from 240 sq.yd.to 245.65 sq. yd. and built up area was increased from 1527 sq. ft. to 1971.85 sq.ft. Due to which, the cost of Villa was increased to Rs.10,64,314/-, as is proved from the certificate dated 18.12.2019, issued by Sh. Alok Mehta, Architect of the builder. The complainants delayed payment from very beginning as such the interest on it was also increased. The notice for possession was given to the complainants on 30.05.2017. The villa in question is a Simplex Villa, as such Occupancy Certificate was not required. However, on insistence of the complainants Occupancy Certificate was obtained on 19.11.2018. After performing the formalities and paying the balance amount, the possession had to be handed over to the complainants. Allegation that only Rs.5,44,857.27 remained to be paid by the complainants, was denied. It has been stated that the statement of accounts was given to the complainants along with possession notice dated 30.05.2017. Increase in built up area was fully in the knowledge of the complainants and they, through addendum dated 18.02.2017 agreed to pay the increased cost. As such, they cannot dispute regarding their liability to pay increased cost of the Villa. The builder did not commit any unfair trade practice. They tried to complete the construction within the promised period, but it was delayed for the reasons beyond the control of the builder. For construction of Villa, the builder has to take approval from Gas Authority of India Ltd., Haryana (GAIL). Urban Development Authority had to acquire land for laying down 75 meters and 60 meters wide sector roads connecting the project in question, shortage of labour faced by construction industries due to flight of labour to their villages to avail benefits of the MNREGA Scheme, the delay in supply of stone and sand due to prohibitory orders of Hon'ble Supreme Court and High Court in respect of mining operation. The disruptions in supply of cement and steel due to various agitations. The restrictions imposed by the State Government from extraction of ground water and taking electricity connection for the Villa. Reasons for delay are full covered under terms of Clauses 11.1, 12.1 to 12.3 & 39 of UBA. The complaint has been filed on misstatement of fact as well as concealment of material facts.
5. The complainants filed their rejoinder reply on 19.02.2018 in which the material facts stated in the complaint were reiterated. Along with complaint, the complainants filed copy of booking letter dated 08.09.2009 (Annexure C-1), Unit Buyer Agreement dated 27.11.2010 (Annexure C-2), letter dated 20.01.2012 (Annexure C-3), letter dated 30.01.2012 (Annexure C-4), postal receipts of the letter dated 30.01.2012 (Annexure C-5), letters dated 09.02.2012, 14.02.2012 and addendum dated 05.04.2012 (Annexure C-6, collectively), letter dated 08.05.2012 from financer, showing EMI payable by the complainants (Annexure C-7), payment receipts (Annexure C-8, collectively), statement of account dated 02.02.2017, 21.10.2014 and 01.04.2014 (Annexure C-9, collectively), possession notice dated 30.05.2017 (Annexure C-10, collectively), e-mail dated 26.6.2017 (Annexure C-11), details of calculation of the claim made in the complaint as (Annexure C-12). Along with rejoinder reply, the complainants filed e-mails dated 30.01.2012 and 26.03.2012 as (Annexure C-13), price list and area details issued by the builder in 2009 as (Annexure C-14), email dated 01.07.2017 as (Annexure C-15), comparison of old and new layout dimensions as (Annexure C-16), Photographs taken on 29.09.2017 as (Annexure -17). The complainants filed an Affidavit of Evidence of Charu Sood and an Affidavit of Evidence of Dushyant Sood.
6. The opposite party filed various letters relating to grant of license by Town & Country Planning Department, Haryana Government, copy of the application given by the complainants on 28.08.2009 for allotment of Simplex Villa, letter dated 20.01.2012 supplying the Addendum and "Home Loan Linked Payment Plan" to the complainants, letter dated 23.02.2012, addendum dated 05.04.2012, letter dated 11.04.2012, addendum dated 18.02.2017, accounts summary issued to the complainants and photographs of the building, notification dated 05.02.2009, sanctioned lay out plan by the competent authority, letter of GAIL dated 29.05.2009, agenda of meeting dated 20.05.2009, letter dated 24.10.2009 of District Town Planner Gurgaon, letter of Haryana Vidhut Parsaran Nigam dated 08.07.2009, letter of Dty. Commissioner, Ministry of Secretariat Gurgaon dated 01.09.2012, for stopping construction in compliance of the order of High Court dated 31.07.2012 as Annexures-1 to 8 to the written reply. Affidavit of Evidence of Mr. Sanjay Kumar and Additional Affidavit of Evidence of Mr. Vipin Kumar Mariya along with sanction layout plan, details of the constructed area and the certificate issued by Mr. Alok Mehta, Architect relating to built-up area and its cost have been filed.
7. The counsel for the complainants submitted that the Villa in question was booked on 28.08.2009. The promised period for offer of possession was three years as such possession ought to have been handed over till 28.8.2012, but notice for possession was issued on 30.05.2017 i.e. after delay of more than 57 months. Even by that time, Occupation Certificate was not obtained. No reason of the category of force majeure has been shown for delaying the construction. About 95% of sale consideration was obtained till 28.11.2014. Thus, the builder is liable to pay delayed compensation to the complainants. In the original allotment letter, the built-up area was shown as 1527 sq.ft., but in the possession notice, the built up area was shown as 1968 sq.ft. i.e. more than 30% increase in the built-up area. Due to which, cost of the Villa was enhanced from Rs.86,46,900/- to Rs.1,27,85,596/-. It is highly unfair trade practice to increase the cost exorbitantly and making it impossible to allottee to take possession. The builder has not filed any document to prove increase in built up area. The construction of staircase of built-up area in 410.54 sq. ft. on the first floor was totally useless and its cost was not liable to the included in the demand notice. Non built-up area of 179.90 sq. ft. has been added in the name of verandah of first floor although no verandah has been shown on first floor in layout plan. 57.33 sq. ft. area has been added in the name of passage on first floor although it was an open space. Area of the wall of first floor has been illegally shown 125 sq. ft. in excess than its actual area. Section 14 of Real Estate Regulation and Development Act, 2016 (RERA) specifically prohibit for change in lay out, thus, neither the increase area of lay out nor increase in built up area was permissible. Without approval of building plan, the money has been demanded/collected in violation of Section 13 of RERA. Withdrawal of subvention unilaterally was unfair trade practice. The complainants are entitled for compensation of delay in offering possession and being victim of unfair trade practice.
8. The counsel for the builder submitted that due to change in sanctioned layout plan, the area of plot was increased from 240 sq.mtr. to 245.65 sq.mtr. So far as built-up area is concerned, it was increased with the consent of the complainants and they have also executed an agreement dated 18.02.2017 in this respect. After raising the various constructions, they cannot dispute the price of increased built-up area. So far as the allegation regarding violation of Section 14 of the RERA, 2016 is concerned, it is not applicable in the present case, as the area of the plot was increased before coming into force of the aforesaid Act and built up area was increased with the agreement of the parties. The complainants were responsible for arranging loan at their own level. The builder merely facilitated the complainants in obtaining the loan. The complainants signed loan agreement on 08.05.2012 with Indiabulls Housing Finance Limited. EMI/interest on the loan has to be borne out by the complainants according to the loan agreement. After execution of addendum on 05.04.2012, loan was obtained. So far as delay in possession is concerned, the delay has been occurred for the reasons beyond the control of the builder inasmuch as the layout plan was not sanctioned within a reasonable period and delayed at the government level. The builder has to construct the approach road of the project for which it had applied to Haryana Government for acquisition of the land. The acquisition of the land was delayed due to which the construction of the road was also delayed. The construction was stopped under the order of High Court dated 31.07.2012. These reasons are fully covered under the Clauses 11.1, 12.1 to 12.3 and 39 of the UBA. The complainants are not entitled for delayed compensation. Occupation Certificate was not required for the villa constructed within 500 sq. mtr. The other allottees have taken possession in 2017 without any objection. The complainants did not take possession and are raising frivolous disputes.
9. I have considered the arguments of the counsel for the parties and examined the record. A perusal of the booking letter dated 08.09.2009 and UBA dated 27.11.2010 shows that by that time, the plot allotted to the complainants was not in existence as mentioned in clause Company's Representation-B. Admittedly after sanction of layout plan, villa was re-allotted to the complainants through addendum dated 05.04.2012. By this addendum Villa number of the complainants was changed from 23/240/simplex to 3/240/simplex and the complainants undertook to pay sale consideration on the basis of actual super area. "Home Loan Linked Payment Plan" was also changed and 30% of basic sale price i.e. Rs. 25,65,000/- was to be deposited on re-allotment. Period of offer of possession was superseded as 30 months. The builder in pargraph-3 of paragraph-wise reply of the written reply has admitted for bearing pre-EMI interest for a period of 30 months. Supreme Court in DLF Home Developers Ltd. Vs. Capital Green Flat Buyers Association, 2020 SCC OnLine SC 1125, has not accepted the explanation of the builder for delay occurred in sanction of lay out plan or other necessary approval from other government departments as these formalities were expected speculation and held that the delay was not caused due to force majeure and directed the builder to pay compensation from the promised date of possession. As such possession ought to have been offered within 30 months from addendum dated 05.04.2012, i.e. up to 05.10.2014. The builder has filed a letter of Dty. Commissioner, Ministry of Secretariat Gurgaon dated 01.09.2012, for stopping construction in compliance of the order of High Court dated 31.07.2012 but nowhere has stated that for what period the construction was stopped on the site.
10. In the present case, notice for possession was issued on 30.05.2017. Occupation Certificate was obtained on 19.11.2018. The counsel for the builder submitted that Occupation Certificate was not required for simplex villa constructed within 500 sq. meter, only self-certification of Architect regarding completion of construction was sufficient. Occupation Certificate was obtained, later on, due to insistence of the complainants. The villa was complete in all respect on 30.05.2017. Most of the allottees have taken possession of the villa allotted to them in 2017. I have gone through the provisions of Haryana Building Code, 2017. Clause-2.2.1 provides the procedure for submitting application for sanction of lay-out plan under Self-Certification, where area of residential plot was up to 500 sq. meter. Issue of Occupation Certificate was provided under Clause-4.10.1, which is necessary for all types of new constructions. The counsel for the builder has not pointed out any proviso to Clause-4.10.1. As such valid date of notice for possession should be 19.11.2018.
11. There is no provision under the UBA for compensation due to delay in offer of possession. In payment schedule for "Home Loan Linked Payment Plan", no pre EMI interest till possession was also assured, in the UBA. Along with the addendum in 2012, another "Home Loan Linked Payment Plan" was supplied which does not contain any such commitment. However, the builder in pargraph-3 of paragraph-wise reply of the written reply has admitted for bearing pre-EMI interest for a period of 30 months. Supreme Court in Wg. Comdr. Arifur Rahman Khan Vs. DLF Southern Themes Pvt. Ltd., (2020) 16 SCC 512, has held that 6% interest per annum from the date of promised possession till the date of offer of possession would be appropriate compensation for delayed possession. As such, the builder is liable to bear pre-EMI interest on the loan up to 05.10.2014 and thereafter will pay interest @ 6% per annum on the deposits made by the complainants till 19.11.2018.
12. So far as increase of built-up area was shown as 1527 sq.ft., to 1968 sq.ft., it was increased with due notice of the complainants. The complainants agreed to bear the cost of excess built-up area in addendums dated 05.04.2012 and 18.02.2017. The complainants have stated that increased built-up area in various head have been wrongly shown, this fact has been disproved from the certificate dated 18.12.2019, issued by Sh. Alok Mehta, Architect of the builder, who has stated that according to the sanctioned layout plan, the area of the plot was increased from 240 sq.yd. to 245.65 sq. yd. and built-up area was increased from 1527 sq. ft. to 1971.85 sq.ft. on the spot. Due to which, the cost of Villa was increased to Rs.10,64,314/-. The complainants have not given any evidence to contradict this certificate. As such the complainants are liable to excess cost of the built-up area. Provisions of RERA are not applicable in present case.
13. There is dispute relating to entries in final statement of account as supplied to the complainants along with possession notice dated 30.05.2017. Since the matter is liable to be reconsidered in light of the aforesaid findings as such the builder shall verify the disputed entries in statement of account from the receipts of the complainants and if any receipt was not credited in the account, it should be credited in his statement of account.
O R D E R
In view of aforementioned discussions the complaint is partly allowed. The builder is directed to bear pre-EMI interest on the loan up to 05.10.2014 and thereafter will pay interest @ 6% per annum till 19.11.2018, on the deposits made by the complainants. The builder shall issue a fresh statement of account, in the light of this judgment within 15 days. The complainants shall deposit the amount as shown in fresh statement of account within 30 days thereafter. On deposit of the amount, the builder shall execute deed of conveyance in accordance with UBA and hand over possession of the villa to the complainants.
......................J RAM SURAT RAM MAURYA PRESIDING MEMBER