State Consumer Disputes Redressal Commission
Kush Mehra vs Ireo Grace Realtech Private Limited on 22 February, 2023
CC/165/2021 MR. KUSH MEHRA VS IREO GRACE REALTECH PVT. LTD. DOD: 22.02.2023
IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL
COMMISSION
Date of Institution: 22.09.2021
Date of hearing: 06.09.2022
Date of Decision: 22.02.2023
COMPLAINT CASE NO.- 165/2021
IN THE MATTER OF:
MR. KUSH MEHRA
S/O MR. SATISH MEHRA
R/O D-22, 3RD FLOOR, PANCHSHEEL ENCLAVE
NEW DELHI - 110017
(Through: PSP Legal, Advocates and Solicitors)
...Complainant
VERSUS
IREO GRACE REALTECH PVT. LTD.
THROUGH ITS DIRECTORS
HAVING ITS REGISTERED OFFICE AT:
C-4, 1ST FLOOR, MALVIYA NAGAR,
SOUTH DELHI, DELHI - 110017
...Opposite party
ALLOWED PAGE 1 OF 7
CC/165/2021 MR. KUSH MEHRA VS IREO GRACE REALTECH PVT. LTD. DOD: 22.02.2023
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT)
HON'BLE MS. PINKI, (JUDICIAL MEMBER)
Present: Ms. Ishita Singh, Proxy counsel for Mrs. Aditya Parolia,
Counsel for the Complainant.
Mr. Rahul Ahuja, Mr. Gaurav Sharma & Ms. Chaitanya
Bansal, Counsel for the Opposite Party.
PER: HON'BLE JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT)
JUDGMENT
1. The present complaint has been filed by the complainant before this commission alleging deficiency of service on the part of Opposite Party and has prayed the following reliefs:
i. Direct the Opposite Party, for an immediate 100% refund of the total amount paid by the Complainant, along with a penal interest of 18% per annum from the date of the receipt of each payment made to the Opposite Party.
ii. Direct the Opposite Party, to pay compensation of Rs.
5,00,000/- (Rupees Five Lakhs Only) to the Complainant for the mental agony, harassment, discomfort and undue hardship caused to the Complainant as a result of the above acts and omissions on the part of the Opposite Party;
iii. Direct the Opposite Party, to pay a sum of 1,00,000/-
(Rupees One Lakh Only) to the Complainant towards litigation costs; and iv. That any other and further relief in favor of the Complainant as the Hon'ble Commission may deem fit and proper in the facts and circumstances of the case."
ALLOWED PAGE 2 OF 7 CC/165/2021 MR. KUSH MEHRA VS IREO GRACE REALTECH PVT. LTD. DOD: 22.02.2023
2. Brief facts necessary for the adjudication of the present complaint are that Complainant booked an Apartment bearing no. CD-A5-07- 704 in the 7th Floor admeasuring 1726.91 sq. ft. with the Opposite Party in the project 'The Corridors' situated at Sector-67A, Gurugram, Haryana. The said apartment was allotted to the Complainant vide Allotment letter dated 07.08.2013 after a delay of 5 months from the date of booking. Thereafter, Apartment Buyer Agreement was executed between the parties on 18.01.2014. The Complainant opted for construction linked payment plan. As per Clause 13.3 of the said agreement, the Opposite Party assured the complainant to handover the possession of the said apartment within a period of 42 months from the date of approval of the building plans alongwith grace period of 6 months i.e. latest by 27.11.2018.
However, till date neither the construction of the said project was completed nor the possession of the said apartment has been handed over by the Opposite Party.
3. The Complainant over the time had paid a sum of Rs. 1,59,99,796/-
to the Opposite Party as and when demanded by it. The Opposite Party arbitrarily raised a demand of Rs. 10,42,381/- vide demand letter dated 15.04.2019 without reaching the requisite stage of construction. The complainant submitted that the Opposite Party failed to obtain the Occupation Certificate of the said project from the concerned authorities till date. Thus, left with no other option, the Complainant approached this commission alleging deficiency of service on the part of Opposite Party.
4. During the course of proceedings, notice of the present complaint was served on the Opposite Party on 07.10.2021 but the Opposite Party neither neither appeared nor filed its written statement within the stipulated period. Therefore, the Opposite Party was proceeded ALLOWED PAGE 3 OF 7 CC/165/2021 MR. KUSH MEHRA VS IREO GRACE REALTECH PVT. LTD. DOD: 22.02.2023 ex-parte by this commission vide order dated 10.12.2021. Since the Opposite Party was adjudged ex-parte, the averments made by the complainant in the present complaint remains unrebutted.
5. We have perused the material available on record and heard the counsel of both the parties.
6. The fact that the Complainant was allotted an Apartment bearing no.
CD-A5-07-704 in the 7th Floor admeasuring 1726.91 sq. ft. by the Opposite Party in the project 'The Corridors' situated at Sector-67A, Gurugram, Haryana is evident from the Apartment Buyer's Agreement dated 18.01.2014 (Annexure-C3). Payment to the extent of Rs. 1,59,99,796/- has been made by the Complainant to the Opposite Party is also evident from the receipts issued by the Opposite Party (Annexure-C4).
7. The only question for consideration before us is whether the Opposite Party is deficient in providing its services to the Complainant or not. The expression Deficiency of Service has been dealt with by the Hon'ble Apex Court in Arifur Rahman Khan and Ors. vs. DLF Southern Homes Pvt. Ltd. and Ors. reported at 2020 (3) RCR (Civil) 544, wherein it has been discussed as follows:
"23. .......The expression deficiency of services is defined in Section 2 (1) (g) of the CP Act 1986 as:
(g) "deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.
24. A failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within a contractually stipulated period amounts to a deficiency.
ALLOWED PAGE 4 OF 7 CC/165/2021 MR. KUSH MEHRA VS IREO GRACE REALTECH PVT. LTD. DOD: 22.02.2023
There is a fault, shortcoming or inadequacy in the nature and manner of performance which has been undertaken to be performed in pursuance of the contract in relation to the service. The expression 'service' in Section 2(1) (o) means a service of any description which is made available to potential users including the provision of facilities in connection with (among other things) housing construction. Under Section 14(1)(e), the jurisdiction of the consumer forum extends to directing the opposite party inter alia to remove the deficiency in the service in question. Intrinsic to the jurisdiction which has been conferred to direct the removal of a deficiency in service is the provision of compensation as a measure of restitution to a flat buyer for the delay which has been occasioned by the developer beyond the period within which possession was to be handed over to the purchaser. Flat purchasers suffer agony and harassment, as a result of the default of the developer. Flat purchasers make legitimate assessments in regard to the future course of their lives based on the flat which has been purchased being available for use and occupation. These legitimate expectations are belied when the developer as in the present case is guilty of a delay of years in the fulfilment of a contractual obligation.
8. At this stage, we deem it appropriate to refer to Clause 13.3 of the Agreement dated 18.01.2014. It reflects that the Opposite Party assured the complainant to handover the possession of the said apartment within a period of 42 months from the date of approval of the building plans alongwith grace period of 6 months. However, it is clear from the record that till date neither the possession of the said apartment was handed by the Opposite Party nor the amount paid by the Complainant was refunded by the Opposite Partya.
9. Relying on the above settled law, we hold that the Opposite Party is deficient in providing its services to the Complaint as the Opposite ALLOWED PAGE 5 OF 7 CC/165/2021 MR. KUSH MEHRA VS IREO GRACE REALTECH PVT. LTD. DOD: 22.02.2023 Party failed to handover the possession of the said apartment within the assured time. It is further noted that the Opposite Party had retained the hard-earned money of the Complainant and failed to complete the project in question even after passage of ten years from the date of first payment given by the Complainant.
10. The complainant cannot be expected to wait for an indefinite time period to get the benefits of the hard-earned money which they have spent in order to purchase the property in question. (Ref: Fortune Infrastructure v. Trevor D'Lima reported at (2018) 5 SCC 442).
11. Keeping in view the facts of the present case and the extensive law as discussed above, we direct the Opposite Party to refund the entire amount paid by the Complainant i.e., Rs. 1,59,99,796/- along with interest as per the following arrangement:
A. An interest @ 6% p.a. calculated from the date on which each installment/payment was received by the Opposite Party till 22.02.2023 (being the date of the present judgment);
B. The rate of interest payable as per the aforesaid clause (A) is subject to the condition that the Opposite Party pays the entire amount on or before 22.04.2023;
C. Being guided by the principles as discussed above, in case the Opposite Party fails to refund the amount as per the aforesaid clause (A) on or before 22.04.2023, the entire amount is to be refunded along with an interest @ 9% p.a. calculated from the date on which each installment/payment was received by the Opposite Party till the actual realization of the amount.
ALLOWED PAGE 6 OF 7 CC/165/2021 MR. KUSH MEHRA VS IREO GRACE REALTECH PVT. LTD. DOD: 22.02.2023
12. In addition to the aforesaid and taking into consideration the facts of the present case, the Opposite Party are directed to pay a sum of:
A. Rs. 6,00,000/- as cost for mental agony and harassment to the Complainant; and B. The litigation cost to the extent of Rs. 50,000/-.
13. Application(s) pending, if any, stand disposed of in terms of the aforesaid judgment.
14. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Regulation, 2005. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
15. File be consigned to record room along with a copy of this Judgment.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (PINKI) MEMBER (JUDICIAL) Pronounced On:
22.02.2023 ALLOWED PAGE 7 OF 7