National Consumer Disputes Redressal
Sanjiv Puri & Anr. vs M/S. Ireo Grace Realtech Private ... on 23 January, 2023
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 1147 OF 2019 1. SANJIV PURI & ANR. ...........Complainant(s) Versus 1. M/S. IREO GRACE REALTECH PRIVATE LIMITED REGISTERED OFFICE AT: 304, KANCHAN
HOUSE, KARAMPURA COMMERCIAL COMPLEX
NEW DELHI - 110 015
...........Opp.Party(s) CONSUMER CASE NO. 2118 OF 2019 1. JAYANT KUMAR SUD ...........Complainant(s) Versus 1. M/S. IREO GRACE REALTECH PVT. LTD. & 4 ORS. REGD OFFICE AT 304, KANCHAN HOUSE,KARAMPURA COMMERCIAL COMPLEX,NEW DELHI-110015 2. M/S PRECISION REALTORS PVT. LTD. REGD OFFICE AT: 304, 3RD FLOOR,KANCHAN HOSUE,KARAMPURA COMMERCIAL COMPLEX,NEW DELHI-110015 3. M/S BLUE PLANET INFRA DEVELOPERS PVT. LTD. REGD OFFICE AT 40/16, EAST PATEL NAGAR,NEW DELHI 4. M/S MADERIA CONBUILD PVT. LTD. REGD OFFICE AT: 304, 3RD FLOOR,KANCHAN HOUSE,KARAMPURA COMMERCAIL COMPLEX,NEW DELHI-110015 5. M/S GLOBAL ESTATE REGD OFFICE AT G-23, ASHOK VIHAR PHASE-1, DELHI-110052 ...........Opp.Party(s) CONSUMER CASE NO. 260 OF 2019 1. MONIL CHANDNA ...........Complainant(s) Versus 1. M/S. IREO GRACE REALTECH PRIVATE LIMITED & 4 ORS. Having its Registered Office at; C-4, Malviya Nagar, (1st Floor)
New Delhi-110017 2. M/s Precision Realtors (P) Ltd, Having its Registered Office at; 305, Kanchan Houes, karampura Commercial Complex, New Delhi-110015 3. M/s Blue Planet Infra Developers (P) Ltd, Having its Registered Office at; 40/16, East Patel Nagar, New Delhi 4. M/s Madeira Conbuild (P) Ltd, Having Registered Office at; 304, Kanchan House, (3rd Floor)
Karampura Commercial Complex, New Delhi-110015 5. M/s Global Estate Having its Registered Office at; G-23, Ashok Vihar, Phase-1, Delhi-110052 ...........Opp.Party(s) CONSUMER CASE NO. 2811 OF 2018 1. ANURADHA RANI ...........Complainant(s) Versus 1. M/S. IREO GRACE REALTECH PVT. LTD. & 4 ORS. 304, Kanchan House, Karampura Commercial Complex, New Delhi- 2. M/s. precision Realtors pvt. Ltd. 305, Kanchan House, Karampura Commercial Complex, New Delhi- 3. M/s Blueplanet Infradevelpers Pvt. Ltd. 40/16 East Patel Nagar, New Delhi-110008 4. M/s. Maderiaconbuild Pvt. Ltd. 304, Kanchan House, Karampura Commercial Complex, New Delhi-110052 5. M/s Global Estate G-23, Ashok Vihar Phase-1, Delhi-110052 ...........Opp.Party(s) CONSUMER CASE NO. 2812 OF 2018 1. VIVEK CHOPRA & ANR. R/o CD-45, Malibu Tower, Sohna Road, Gurgaon - 122001 Haryana 2. Ritu Chopra R/o CD-45, Malibu Tower, Sohna Road, Gurgaon - 122001 Haryana ...........Complainant(s) Versus 1. M/S. IREO GRACE REALTECH PVT. LTD. & 4 ORS. R/o 304, Kanchan House, Karampura Commercial Complex, New Delhi 2. M/s Precision Realtors Pvt. Ltd. R/o 305, Kanchan House, Karampura Commercial Complex, New Delhi 3. M/s Blueplanet Infradevelopers Pvt. Ltd. R/o 40/16, East Patel Nagar, New Delhi - 110008 4. M/s MaderiaConbuild Pvt. Ltd. R/o 304, Kanchan House, Karampura Commercial Complex, New Delhi - 110015 5. M/s Globle Estate R/o G-23, Ashok Vihar Phase-I, New Delhi - 110052 ...........Opp.Party(s) CONSUMER CASE NO. 286 OF 2019 1. SANJAY PRATAP & ANR. R/o H No-2188, Ground Floor, Phase-VII, Mohali, Punjab - 160062 2. KANIKA PRATAP R/o H No-2188, Ground Floor, Phase-VII, Mohali, Punjab ...........Complainant(s) Versus 1. M/S. IREO GRACE REALTECH PRIVATE LIMITED & 4 ORS. R/o C-4, Malaviya Nagar, 1st Floor, New Delhi - 110017 2. M/s Pricision Realtors (P) Ltd., R/o 305, Kanchan House, Karampura Commercial Complex, New Delhi - 110015 3. M/s BLUE PLANET INFRA DEVELOPERS PVT. LTD. R/o 40/16, East Patel Nagar, New Delhi - 110008 4. M/s MADEIRA CONBUILD PVT. LTD. R/o 304, Kanchan House, 3rd Floor, Karampura Commercial Complex, New Delhi - 110015 5. M/s GLOBE ESTATE R/o G-23, Ashok Vihar, Phase-I, New Delhi - 110052 ...........Opp.Party(s) CONSUMER CASE NO. 790 OF 2017 1. DEVENDRA KUMAR MEHTA S/o Mr. Radha Krishna Mehta
R/o 102, Birch Court,
Nirvana County-I,
Sector 50, Gurgaon - 122018 Haryana ...........Complainant(s) Versus 1. M/S. IREO GRACE REALTECH PVT. LTD. 304,Kanchan House,
Karampura commercial complex,
NEW DELHI-110015 ...........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. Sulekha Agrawal, Advocate
Mr. Aditya Parolia,Advocate with
Ms. Sumbul & Ms. Priya Advocates
Ms. Medhya Ahluwalia, Advocate
Mr. Apurv P., Advocate
Mr. Deepak Kr. Khushalani, Advocate
Mr. Saurabh Suman Sinha, Advocate
Mr. Sanjoy Kr. Ghosh, Advocate
Ms. Rupali S. Ghosh, Advocate For the Opp.Party : Mr. Gaurav Sharma, Advocate
: Mr. Rahul Ahuja, Advocate
Ms. Sadhvi Swaroup, Advocate
Mr. Arvind Lamba, Advocate
Ms. Ruchi Kumar, Advocate
Mr. Sunil Mund, Advocate
Ms. Archana Yadav, Advocate for OP-3
Dated : 23 Jan 2023 ORDER
1. Heard Ms. Sulekha Agrawal, Advocate, for the complainants and Mr. Gaurav Sharma, Advocate, for the opposite party.
2. Above bunch of the complaints have been filed against same opposite parties in respect of same project "The Corridors". As the complainants, in these complaints pressed for the relief of refund at the time of arguments as such these complaints are decided together. For appreciating the controversy between the parties, the facts of CC/1147/2019 are mentioned in the judgment. Necessary facts of the complaints are given in a table below:-
COMPLAINT NO.
COMPLAINANT NAME
UNIT NO.
DATE OF BOOKING
TOTAL PAYMENT
CC/1147/2019
Sanjiv Puri & Mrs. Anu Puri
CD-D3-08-804
15.03.2013
Rs.10213830/-
CC/790/2017
Devendra Kumar Mehta
CD-C5-03-302
09.05.2013
Rs.6238876/-
CC/2811/2018
Anuradha Rani
CD-A5-04-401
08.05.2013
Rs.9131816/-
CC/2812/2018
Vivek Chopra & Ritu Chopra
CD-B7-09-903
22.03.2013
Rs.9502422/-
CC/260/2019
Monil Chandna
CD-C4-06-603
06.05.2013
Rs.3993458/-
CC/286/2019
Sanjay Pratap & Kanika Pratap
CD-B6-05-504
22.05.2013
Rs.16146984/-
CC/2118/2019
Jayant Kumar Sud
CD-D4-19-1904
23.05.2014
Rs.8816302/-
3. Sanjiv Puri and Mrs. Anu Puri have filed CC/1147/2019, for directing the opposite party to (i) refund Rs.10213830/- with interest @10% per annum from the date of respective deposit till the date of actual payment, (ii) pay litigation cost; and (iii) any other relief which is deemed fit and proper in the facts and circumstances of the case.
4. In CC/1147/2019, the complainants have stated that 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. M/s. Precision Realtors Private Limited, M/s. Blue Planet Infra Developers Private Limited, M/s. Madeira, Conbuild Private Limited and M/s. Global Estate were the owners of the project land. Under a Collaboration Agreement dated 05.03.2013, between the owners and M/s. IREO Grace Realtech Private Limited, the work of development, construction and sale etc. of the group housing project was assigned to IREO Grace Realtech Private Limited (the developer). The developer launched a group housing project, in the name of "The Corridors" at villages Dhumaspur and Maidwas, Golf Course Extension Road, Sector-67-A, Gurgaon, in the year 2012 and made wide publicity of its facilities and amenities. Even before grant of development licence, the developer invited booking applications and started collecting money. The complainants approached the developer and inquired in respect of the price. The developer informed that Rs.9200/- per sq.ft. as basic sale price the flat which includes one car parking space, Rs.327.91 per sq.ft. as Development Charges, Rs.100/- per sq.ft. as Interest Free Maintenance Security, Rs.50/- per sq.ft. as Interest Bearing Replacement Fund and Rs.2.5 lacs towards club membership charges (optional). The complainants booked a Flat on 01.03.2013 and deposited booking amount of Rs.2100000/-. Thereafter, the complainant deposited Rs.600000/- on 15.03.2013, Rs.1500000/-/- on 15.03.2013 and Rs.2348694/- on 07.05.2013. The developer issued Allotment Offer Letter on 07.08.2013, allotting Unit No. CD-D3-08-804, super area 2213 sq.ft. and executed Apartment Buyer's Agreement on 07.07.2014. Annexure-IV of the agreement provides payment plan as "construction link payment plan" and total consideration was Rs.23747435/-. Clause-13.3 provides 42 months period from the date of approval of building plan, for offer of possession, with grace period of 180 days. Clause-13.4 provides for delayed compensation @Rs.7.5/- per sq.ft. per month on super area after expiry of grace period. The developer raised demand of 4th instalment payable on "casting of lower basement roof slab" vide letter dated 22.03.2017, of Rs.2853240/-+ tax, which was deposited on 22.03.2017. As per demands, the complainants deposited total Rs.10213830/- till 22.03.2017. The building plan was approved on 23.07.2013. The period of 42 months expired 22.01.2017 and 180 days grace period expired on 22.07.2017 but the construction was unreasonably delayed by the developer. The complainants vide letter dated 13.06.2019, asked to return their money along with interest. In spite of service of the letter, the developer did not respond. Then the complaint was filed on 01.07.2019, alleging deficiency in service.
5. The opposite party filed its written reply on 13.03.2020 and contested the matter. The material facts relating to the project, allotment of the apartment to the complainants, execution of ABA in their favour and payments made by them have not been disputed. The opposite party stated that although building plan was approved on 23.07.2013 but "No Objection Certificate" from Fire Department was delayed and issued on 27.11.2014 although it was applied on 24.10.2013. The construction was started thereafter. The developer submitted for revision of Building Plan, which was approved on 10.07.2017 (received on 25.08.2017). Department of Town and Country Planning, Gurgaon stopped construction vide order dated 20.02.2017, till approval of revised layout plan. The developer raised first demand for instalment of "Casting Roof Slab" from the buyers in March, 2015 and thereafter. The period of 42 months is liable to be counted from 27.11.2014 and due date of possession including grace period would be 26.11.2018. The construction of first phase of the project, which consisted 1356 apartments were completed. The developer applied for issue of "occupation certificate" for Towers A-6 to A-10, B-1 to B-4, C-3 to C-7 (consisting 700 apartments) and EWS block on 21.07.2017 and for revised "occupation certificate" on 28.05.2018, which was granted on 31.05.2019. The construction of Towers A1 to A-5, B-5 to B-8, C-8 to C-11, Community Centre, EWS Building-2, Convenient Shopping-1 and 2 was completed and the developer has applied for issue of "occupation certificate" on 10.09.2019. The delay in issue of "occupation certificate" was beyond the control of the developer and is a force majeure as provided in Clause-13.3 and 13.6 of the ABA. The developer is entitled for extension of the period, for which "occupation certificate" is being delayed. The developer wrote emails to the complainants and other buyers to change their allotment in the project "Skyon" and take possession but the complainants did not reply. As per clause-13.5 of the ABA, the developer is entitled for one year "extended period" after due date and the claim for refund was pre-mature. After completion of construction, it would not be appropriate to direct the opposite party to refund the money. This Commission has no jurisdiction to alter the terms of the contract. After fully satisfying with the title of the opposite parties, the complainants booked apartment and deposited money. After signing the agreement, the complainants are not entitled to question the title of the opposite parties and avoid the terms of the agreement. Limitation of two years as provided under Section 24-A of the Consumer Protection Act, 1986, for these allegation has expired. It has been denied that the developer had misrepresented anything. Haryana Government has framed Rules and constituted Adjudicatory Authority, under Real Estate (Regulation and Development) Act, 2016. The Act of 2016 is a special enactment on the subject as such the complainants be relegated to go before that authority for their grievances. The project "The Corridor" was registered under the Act of 2016. There complainants have stopped payment of instalment and committed breach of the contract. There was no deficiency in service on part of the developer and the complaint is liable to be dismissed.
6. The complainants prayed for deciding the complaint in terms of judgment of Supreme Court in IERO Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna, (2021) 3 SCC 241 (decided on 11.01.2021).
7. We have considered the arguments of the counsel for the parties and examined the record. The dispute of possession/refund with regard to the project "The Corridor" came up for consideration before Supreme Court in IERO Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna, (2021) 3 SCC 241 (decided on 11.01.2021). Supreme Court found that Building Plan was approved on 23.07.2013 but it was conditional for obtaining Fire NOC, which was issued on 27.11.2014. Under Haryana Fire Safety Act, 2009, Fire NOC was mandatory for raising construction. The period of 42 months and grace period of 180 days has to be counted from the date of issue of Fire NOC and expired on 27.11.2018. The developer first started construction of phase-l, (which consist Towers A-6 to A-10, B-1 to B-4, C-3 to C7 and EWS block). After completing the construction, the developer applied for issue of "occupation certificate" on 05.07.2018, for phase-l, which was issued on 31.05.2019. Thereafter, possession was offered in June, 2019. There was no inordinate delay in offer of possession and the buyers of phase-l construction were obligated to take possession. So far as remaining buyers were concerned, Supreme Court upheld order of this Commission for refund, with interest @9% per annum, from the date of their respective deposit till the date of actual payment.
8. After completing the construction, the developer applied for "occupation certificate" of Towers A-1 to A-5, B-5 to B-8, C8 to C-11, Community Centre, EWS Building-2, Convenient Shopping1 and 2 on 10.09.2019, which has been issued on 27.01.2022. The developer has not stated anything in respect of Tower-D. The developer issued Notice of Possession letter in June, 2019 to some of the complainants but on that day the developer did not have "occupation certificate" in respect of the flat allotted to the complainants as such offer of possession was not legally valid. Due date of possession was 27.11.2018. But possession was unreasonably delayed. Supreme Court in Bangalore Development Authority Vs. Syndicate Bank, (2007) 6 SCC 442, Fortune Infrastructure Vs. Trevor D'Lima, (2018) 5 SCC 442, Pioneer Urban Land & Infrastructure Vs. Govind Raghavan, (2019) 5 SCC 725 and Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, 2019 SCC OnLine SC 438, held that a home buyer cannot be made to wait for possession of the flat for indefinite period.
9. In Bangalore Development Authority Vs. Syndicate Bank, (2007) 6 SCC 442, held that in the matter of contractual obligation, there is no scope for compensation for mental agony and harassment. In DLF Homes Panchkula Pvt. Ltd. Vs. D.S. Dhanda, (2020) 16 SCC 318, held when interest is awarded as compensation then awarding additional compensation was not justified. In Experion Developers Private Limited Vs. Sushma Ashok Shiroor, 2022 SCC OnLine SC 416, held that 9% interest, in case of refund, is just compensation, which is restitutory and compensatory both.
10. There is dispute in respect of rate of interest between the parties. The counsel for the complainants stated that Haryana Real Estate (Development and Regulation) Rules, 2017 provides for the interest, 1.5% per annum above the market rate, in case of refund. Supreme Court in Pioneer Urban Land & Infrastructure Vs. Govind Raghavan, (2019) 5 SCC 725, has awarded interest @10.5% per annum. But in view of judgement of three Hon'ble Judges Bench, in Experion Developers (supra), we award interest @9% per annum.
ORDER
ln view of aforesaid discussions, the complaints are partly allowed. IREO Grace Realtech Private Limited is directed to refund entire money deposited by the complainants with interest @9% per annum from the date of respective deposit till the date of refund, within a period of two months from this judgment.
......................J RAM SURAT RAM MAURYA PRESIDING MEMBER ...................... DR. INDER JIT SINGH MEMBER