National Consumer Disputes Redressal
Praveen Gupta & Anr. vs Godrej Projects Development Pvt. Ltd. ... on 11 October, 2024
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 1153 OF 2018 1. PRAVEEN GUPTA & ANR. S/O SH. PREM PRAKASH GUPTA
N1-601, PURVA PANORAMA,
BENERGATTA ROAD, BANGALORE-560076 KARNATAKA 2. PREM PRAKASH GUPTA S/O LATE SH. S.C. DASS GUPTA
57, MANAK VIHAR, NEW DELHI-110092 ...........Complainant(s) Versus 1. GODREJ PROJECTS DEVELOPMENT PVT. LTD. (FORMERLY KNOWN AS GODREJ PREMIUM BUILDERS PRIVATE LIMITED) & ANR. FORMERLY KNOWN AS GODREJ PREMIUM BUILDERS PRIVATE LIMITED,
3RD FLOOR, UM HOUSE,
TOWER A,
PLOT NO. 35, SECTOR-44, GURGAON HARYANA 2. GODREJ PROPERTIES LIMITED GODREJ BHAVAN,
4TH FLOOR,
4A HOME STREET, FORT, MUMBAI-400001 MAHARASHTRA ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE RAM SURAT RAM MAURYA,PRESIDING MEMBER HON'BLE MR. BHARATKUMAR PANDYA,MEMBER
FOR THE COMPLAINANT : MR. PABAN K. SHARMA, ADVOCATE
MR. PRANAB KUMAR NAYAK, ADVOCATE
MR. ARVIND KUMAR, ADVOCATE FOR THE OPP. PARTY : MR. SUDHIR MAKKAR, SR. ADVOCATE WITH
MR. VENANCIO D'COSTA, ADVOCATE
MS. GAURI GOEL, ADVOCATE
MS. AADHYA, ADVOCATE
MR. AMIT, AR
Dated : 11 October 2024 ORDER
1. Heard Mr. Saurabh Jain, Advocate for the complainants and Mr. Sudhir Makkar, Senior Advocate, assisted by Mr. Venancio D'Costa, Advocate, for the opposite parties.
2. Praveen Gupta and his father have filed above complaint for directing the opposite parties to (a) refund the entire amount of Rs.3785189/- with interest @15% p.a. from the date of respective deposit till the date of refund; (b) pay Rs.10/- lacs towards opportunity loss caused to the complainants; (c) pay Rs.5/- lacs towards hardship, injury and agony caused to the complainants; (d) pay Rs.one lac towards litigation cost; and (e) any other relief which this Commission may deem fit in favour of the complainants.
3. The complainants stated that the OPs had launched a group housing project in the name of "Godrej Summit", Sector-104, Gurgaon, Haryana and claimed that the project was being developed in 22.123 acres prime land at the most superior loacation of Delhi NCR, in collaboration withih world's best architects and designer, who had envisaged and brought to life some of the world's most imposing and elegant architectural wonders. The project was visualized to be one of the best projects in Asia to be built by a dream team of architects, designer and planners. The POs allured the prospective buyers by making proclamations as "Godrej Summit welcomes you to eleven elegantly designed high rise towers with luxurious 2, 3, 4bedromm residences and penthouses. Lose yourself in acres of open spaces and landscaped gardens that cover 80% of the property, offering you complete relaxation. If you want to sweat it out instead, hit the state of the art gym, play a game of tennis or splash around in the sparkling pool. Just a short walk away from Dwarka Expressway. Godrej Summit has everything that you and your family will ever need". The projected was made to look even more lucrative due to its connectivity and access from the Dwarka Expressway through a 24 meters wide road to be constructed by the opposite parties for easy movement of the homebuyers to and from the project. Believing upon the above representation and inducement, the complainants booked a residential flat in the project of the opposite parties by paying Rs.10/- lacs on 21.11.2013. The complainants opted for 'possession linked payment plan', under which, 25% of total consideration was payable within 60 days of the booking and balance 75% was payable on offer of possession. The complainants paid Rs.3752801/- till 27.02.2014. The OPs allotted Unit No.B0004, ground floor, Tower-B, "Godrej Summit", Sector-104, Gurgaon, Haryana for a consideration of Rs.14596740/-, vide allotment letter dated 22.07.2014 to them. Looking to the requirement of the family, the complainants also booked Unit No.G0008 in the project "Godrej Summit". The OPs issued the Apartment Buyer Agreement (ABA) on 22.07.2014. This was the first time that the detailed terms and conditions were provided. The complainants came to know that most of the clauses of the ABA were oppressive, unfair, unjust, unconscionable and one sided. Clauses 2.4 and 2.5 stipulate that in case of delay in payment of instalment, the buyer has to pay interest @15% per annum mandatorily while under clause 4.3, in case of delay in handing over possession, the developer will pay Rs.5/- per sq.ft. per month of the super area as delay compensation. Clauses 2.6, 8.3 and 8.4(ii) provide that 20% of the total consideration would be considered as earnest money. As per clause 4.2 of the ABA, the OPs provides handing over possession within a period of 33 months from the date of the allotment letter and in case, the developer fails or neglects to issue possession notice, in alternative at the request of the buyer, may refund the total amount already received together with simple interest @15% per annum. Clause M of the ABA provides that the project has a proper access through a proposed motorable road having width of 24 meters be linked to Dwarka Expressway. Clause 6.2 puts an obligation on the developer that in case of any change or modification in internal layout and/or building plans of the project in future at any stage during the construction period, the developer shall inform the buyer and shall obtain prior consent in writing of the buyers. At the time of launching the project, the opposite parties had highlighted the project by making several lucrative promises in the brochure including 500 meters away from Dwarka Expressway (northern peripheral road) and 24 meter wide road for access etc. Although the OPs displayed great zeal in extracting money, but it did not show reciprocal sincerity in executing the work even the complainants made innumerable visits at site during 2013-2017 and also contacted telephonically. The complainants enquired about the development of the project many times but the opposite parties never allowed the complainants and other buyers to enter into the project premises. The complainants visited the site in the year 2015 and they were shocked to see that the tower was almost incomplete. The OPs, vide email dated 28.06.2017 issued possession notice and demanded a sum of Rs.11721014/- in spite of the fact that the project was not completed nor 24 meters access road was in existence. Realizing that the aforesaid demand under the guise of possession notice was only fraudulent device to extract money despite the fact that the project was far away from completion and 24 meters wide excess road was not in existence, the complainants requested the OPs to refund the amount deposited by them with interest on 17.07.2017. The OPs, vide email dated 21.07.2017 asked the complainants to discuss the matter in their office. On 22.08.2017, the complainants brought the deficiencies in the project to the notice of the OPs and also requested to share various documents relating to approvals, NOC, occupation certificate etc. On 07.10.2017, the complainants again visited the project and found that there were various deficiencies and the project was still incomplete, therefore, the complainants wrote that they did not wish to accept the offer of possession since it was not as per ABA. On 12.10.2017, the OPs give a vague reply to the queries of the complainants and passed on the buck to civil/municipal authorities. Thereafter, the complainants sent various emails on 20.11.2017, stating about deficiencies in the project including absence of 24 meter wide access road as well as seeking refund of the amount with interest @ 15% per annum. The OPs continued demanding money giving reminders and final notice dated 24.11.2017, calling upon the complainants to pay Rs.11982242/- along with interest within 7 days, failing which, allotment would be cancelled and earnest money would be forfeited. The complainants strongly countered arm-twisting measures employed by the OP through email dated 20.01.2018. However, the opposite parties, vide letter dated 20.02.2018 cancelled the allotment, forfeited earnest money and returned Rs.159624/-. The complainants, vide email dated 21.02.2018, protested for forfeiture of earnest money and requested to refund entire money with interest. Apart from absence of 24 meters wide access road, there is no proper water supply in the project and the water is provided through tankers. Alleging deficiency in service and unfair trade practice on the part of the OPs, the complainants filed the above complaint on 11.05.2018.
4. The opposite party-1 filed the written version wherein booking of the flat, allotment of the flat and the payments made by the complainants, are admitted. The OP stated that Urban Estate-Cum-Town and Country Planning, Haryana notified a comprehensive development plan for Gurgaon Manesar Urban Complex. M/s. Magic Info Solutions Pvt. Ltd. applied for grant of licence for development of group housing colony on 22.123 acres land at Sector 104, Gurgaon on 19.02.2011. Director General, Town and Country Planning, Haryana granted Licence No.102 of 2011 dated 07.12.2011 to M/s. Magic Info Solutions Pvt. Ltd. The Director, Town and Country Planning, Haryana approved Zoning Plan, vide Drawing No.2921 dated 08.12.2011, prepared by the authorities wherein they reserved the land for construction of 24 meters wide sectorial road connecting the project land to Dwarka Expressway. The said 24 meters wide road connecting Sector 104, Gurgaon with Dwarka Expressway was projected again in Development Plan for the year 2025 as well as for the year 2031. The Director, Town and Country Planning, Haryana sanctioned layout plan for the project "Godrej Summit", vide Memo No.17360 dated 05.09.2012, in which, a condition was put upon the OPs to pay proportionate cost for construction of 24/30 mtrs. wide road/major external road as and when finalized and demanded by the Director General, Town and Country Planning, Haryana. M/s. Magic Info Solutions Pvt. Ltd. entered into a development agreement with Godrej Properties Limited and also executed a power of attorney in this regard. Godrej Properties Limited assigned its rights under the development agreement in favour of its subsidiary Godrej Premium Builders Pvt. Ltd., vide deed of substitution dated 27.12.2011. Godrej Premium Builders Pvt. Ltd. merged with Godrej Properties Development Pvt. Ltd. (OP) w.e.f. 21.08.2015 in terms of the order of High Court of Bombay in Company Petition No.154/2015. It is the responsibility of the state government to construct the road. Since the government has not constructed 24 meters wide road which was outside the project, the OP provided an additional access on the revenue 'rasta' to ensure a tentative access to the flat owners. The OP has filed Writ Petition No.6187 of 2018 before the Punjab & Haryana High Court seeking direction to the government authorities to construct 24 meters sectorial road. The OP has already constructed internal 24 meters road within the periphery of the project. The OP obtained Fire NOC dated 09.01.2017 and 26.05.2017. The OP applied for sanction of electricity connection under IIT Bulk Supply Domestic Category to Dakshin Haryana Bijli Vitran Nigam, which was sanctioned and partial load of 980 KW was released, for which, requisite amount was deposited by the OP and connection has been provided to the project. The OP has applied to Dakshin Haryana Bijli Vitran Nigam for extension of the load to 4490 KW on 08.06.2017. The OP has applied for regular water connection to Haryana Urban Development Authority (HUDA) of 700 KLD and deposited requisite money. HUDA provided water supply to the OP at boosting station, section 16 and Basai WTP, Gurugram and vide letter dated 27.03.2017 informed that regular water supply of 700 KLD would be given after completion of water supply line, which would take one year or as per availability of clearance of land. The OP is ensuring water supply as per directions issued by HUDA through tanker. HUDA apprised the OP vide letter dated 07.11.2017 that the work of laying down master water supply line was in progress. There is a gap in master line of 1600 mm dia near village Dhankot along GWS of approximately 762 meter length and the connection at the main rising line is to be done at WTP Chandu Budehra, Gurgaon. Further there is structure in alignment of pipeline near junction at Daulatabad Flyover Road and NPR in Sector 103 due to which approximately 110 meter (1200mm dia) is not laid. The OP also initiated work in this regard and incurring additional amount due to apathy of the government only to satiate its home buyer and ensure that basic services are unhampered. The water supply can be provided only after laying down external infrastructure by HUDA. The OP has provided adequate capacity sewage treatment plant (STP) with consequential batch reactor technology as per approved plan. STP installation certificate has also been obtained by the OP. The OP completed the construction, obtained 'occupation certificate' on 07.04.2017 and 20.06.2017 and issued demand-cum-possession letter dated 28.06.2017 to the complainants. The OP issued reminders dated 04.09.2017 and 05.10.2017, for depositing balance amount and taking possession. The OP issued final demand notice dated 24.11.2017, calling upon the complainants to pay Rs.11982242/- along with interest within 7 days, failing which, allotment would be cancelled and earnest money would be forfeited. In spite of the service of final notice, the complainants did not deposit the balance amount, then the OP, vide letter dated 20.02.2018 cancelled the allotment, forfeited earnest money and returned Rs.159624/-. There is no deficiency in service on the part of the OPs within the meaning of Section 2 (1) (g) of the Consumer Protection Act, 1986. Apartment Buyer Agreement was executed on 22.07.2014 and its validity cannot be challenged in the complaint filed on 11.05.2018. The complainants also booked Unit No.G0008 in the project "Godrej Summit" for investment purpose with an intention of earning rental income and are not consumer. Complainant-1 is Chief Executive Officer and the founder of BetterPower, which is situated in Bangalore, while complainant-2 has his own bunglow in Delhi, these properties have been purchased for commercial purpose. Due to fall of value of real estate in market, now this complaint has been filed for refund. The complainants have claimed refund of Rs.3785189/- and inflated other claims so that the complaint will fall within the pecuniary limit of this Commission. There is no privity of contract between the complainants and OP-2, while Magic Info Solution Pvt. Ltd. is the owner of the land and is necessary party in the complaint and the complaint is liable to be dismissed for misjoinder and non-joinder of parties.
5. The complainants filed Rejoinder reply and Affidavit of Evidence of Praveen Gupta. The OP filed Affidavit of Evidence of Surabhi Kapur. The OP filed additional documentary evidence through IA/4187/2021 and IA/1153/2023. The complainants filed additional documentary evidence through IA/17267/2023. Both the parties have filed their written synopsis.
6. The counsel for the OP argued that the OP completed construction in time as stipulated in the allotment letter, obtained 'occupation certificate' on 07.04.2017 and 20.06.2017 offered possession vide letter dated 28.06.2017. This Commission in Vineet Kumar Vs. DLF Universal Limited, 2019 SCC OnLine NCDRC 9, Pramod Kumar Madan Vs. DLF Limited, 2021 SCC OnLine NCDRC 924, Supreme Court in Ireo Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna, (2021) 3 SCC 241, held that if possession is offered after obtaining 'occupation certificate' then the home buyer is obligated to take possession after deposit of balance consideration. The OP issued reminders dated 04.09.2017 and 05.10.2017, for depositing balance amount and taking possession. The OP issued final demand notice dated 24.11.2017, calling upon the complainants to pay Rs.11982242/- along with interest within 7 days, failing which, allotment would be cancelled and earnest money would be forfeited. In spite of the service of final notice, the complainants did not deposit the balance amount, then the OP, vide letter dated 20.02.2018 cancelled the allotment, forfeited earnest money and returned Rs.159624/-. Basic amenities, necessary for habitation are being provided. The OP has applied for regular water connection with HUDA and deposited the required money. The OP is supplying water through tankers till the regular water supply is obtained. Right of the parties has to be adjudicated in terms of the contract and the consumer commission cannot rewrite a contract. 24 meters wide road, connecting Dwarka Expressway has to be constructed by the State Government and inaction of the government in delaying construction of the road cannot be said to be deficiency in service on the part of the OP. The OP has challenged judgment of this Commission in CC/278/2018 Rajeev Singhal vs. Godrej Project Development Pvt. Ltd., before Supreme Court in appeal, which has been admitted as such in view of judgment of Supreme Court in Union of India Vs. West Coast Paper Mills Ltd., (2004) 2 SCC 757, it has no binding effect and this case be decided on its own merit. The complainants booked Flat No.G0008 and B0004 as a speculation of price rise of the flat and earn profit from it. As the price in real estate has gone down they are seeking refund. They have invested in the project for commercial purpose. The complainants in their email dated 15.05.2017, admitted that they were facing financial problem. Total value of the flat is Rs.8022310/- below the pecuniary limit of this Commission. They are not consumer. In the absence of any pleading in the complaint, additional documentary evidence filed through IA/17267/2023, cannot be considered. The complaint is not maintainable nor has any merit and is liable to be dismissed.
7. We have considered the arguments of the counsel for the parties and examined the record. So far as preliminary issue raised by the OPs that the complainants are not consumers, is concerned, Supreme Court in Shriram Chits (India) (P) Ltd. Vs. Raghachand Associates, 2024 SCC OnLine SC 851, held that structurally, there are three parts to the definition of a consumer. We can deconstruct Section 2(7)(i) as a matter of illustration. The first part sets out the jurisdictional prerequisites for a person to qualify as a consumer - there must be purchase of goods, for consideration. The second part is an 'exclusion clause' ['carve out'] which has the effect of excluding the person from the definition of a consumer. The carve out applies if the person has obtained goods for the purpose of 'resale' or for a 'commercial purpose'. The third part is an exception to the exclusion clause - it relates to Explanation (a) to Section 2(7) which limits the scope of 'commercial purpose'. According to the said explanation, the expression, 'commercial purpose' does not include persons who bought goods 'exclusively for the purpose of earning his livelihood, by means of self-employment'. The significance of this structural break down will be discussed shortly.
As we have shown above, the definition of consumer has three parts. The significance of deconstructing the definition into three parts was for the purpose of explaining on whom lies the onus to prove each of the different parts. There can hardly be any dispute that the onus of proving the first part i.e. that the person had bought goods/availed services for a consideration, rests on the complainant himself. The carve out clause, in the second part, is invoked by the service providers to exclude the complainants from availing benefits under the Act. The onus of proving that the person falls within the carve out must necessarily rest on the service provider and not the complainant. This is in sync with the general principle embodied in Section 101 and 102 of the Evidence Act that 'one who pleads must prove'. Since it is always the service provider who pleads that the service was obtained for a commercial purpose, the onus of proving the same would have to be borne by it. Further, it cannot be forgotten that the Consumer Protection Act is a consumer-friendly and beneficial legislation intended to address grievances of consumers. Moreover, negative burden cannot be placed on the complainant to show that the service available was not for a commercial purpose.
8. Supreme Court in Lilavati Kirtilal Mehta Medical Trust Vs. Unique Shanti Developers, (2020) 2 SCC 265, held as follows:-
"19. To summarise from the above discussion, though a strait jacket formula cannot be adopted in every case, the following broad principles can be culled out for determining whether an activity or transaction is "for a commercial purpose":
19.1. The question of whether a transaction is for a commercial purpose would depend upon the facts and circumstances of each case. However, ordinarily, "commercial purpose" is understood to include manufacturing/industrial activity or business-to-business transactions between commercial entities.
19.2. The purchase of the goods or service should have a close and direct nexus with a profit-generating activity.
19.3. The identity of the person making the purchase or the value of the transaction is not conclusive to the question of whether it is for a commercial purpose. It has to be seen whether the dominant intention or dominant purpose for the transaction was to facilitate some kind of profit generation for the purchaser and/or their beneficiary.
19.4. If it is found that the dominant purpose behind purchasing the good or service was for the personal use and consumption of the purchaser and/or their beneficiary, or is otherwise not linked to any commercial activity, the question of whether such a purchase was for the purpose of "generating livelihood by means of self-employment" need not be looked into."
The OP did not adduce any evidence to prove that the complainants are engaged in the business of purchasing and selling flat. In the absence of any evidence that Flat No.G0008 and B0004 were purchased for earning profit, the preliminary issue raised by the OP is rejected.
9. For deciding pecuniary jurisdiction, value of the goods/service along with compensation claimed is relevant consideration under Section 21 of the Consumer Protection Act, 1986. In the present case, value of flat along with compensation claimed exceed Rs. One crore. On the basis of email dated 15.05.2017 finding can be recorded in respect of capacity of the complainants.
10. Supreme Court in Arifur Rahman Khan v. DLF Southern Homes (P) Ltd., (2020) 16 SCC 512, held that a deficiency under Section 2(1)(g) means a fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance. This may be required to be maintained under law or may be undertaken to be performed in pursuance of a contract or otherwise in relation to any service. The developer invited prospective flat purchasers to invest in the project on the basis of a clear representation that the surrounding area of New Town situated on 80 acres was being developed to provide a wide range of amenities including a shopping centre, healthcare facilities and an early learning school. The developer has failed to provide these amenities. In other words, what the developer holds out as a defence is that though there has been a failure on their part to provide the amenities, the flat buyers have the benefit of facilities in the surrounding area which has become urbanised. We cannot agree with this line of submissions. The reply of the developer seeks to explain the failure to construct the facilities on the ground that the "existing population cannot sustain these facilities" -- a school, commercial complex and healthcare facilities. This is a case involving an experienced developer who knew the nature of the representation which was being held out to the flat purchasers. Developers sell dreams to homebuyers. Implicit in their representations is that the facilities which will be developed by the developer will provide convenience of living and a certain lifestyle based on the existence of those amenities. Having sold the flats, the developer may find it economically unviable to provide the amenities. The flat purchasers cannot be left in the lurch or, as in the present case, be told that the absence of facilities which were to be provided by the developer is compensated by other amenities which are available in the area. The developer must be held accountable to its representation. A flat purchaser who invests in a flat does so on an assessment of its potential. The amenities which the builder has committed to provide impinge on the quality of life for the families of purchasers and the potential for appreciation in the value of the flat. The representation held out by the developer cannot be dismissed as chaff.
11. In Debashis Sinha v. R.N.R. Enterprise, (2023) 3 SCC 195, held that the complaint of the appellants was that the respondents have not provided playground, community hall, beautified lake, landscape gardening, generator backup, multi-gymnasium, etc. as mentioned in the brochure/advertisement pursuant to which they expressed interest to purchase flats in the project and, thus, defaulted in providing services in relation to housing construction. Be that as it may, what NCDRC omitted to bear in mind was that the appellants were allured to purchase flats of the nature and kind together with facilities and amenities as attractively published in the brochure/advertisement; hence, whether the project was huge or otherwise was absolutely beside the point. It was the duty of NCDRC to ascertain, based on the materials on record, whether if at all and to what extent facilities and amenities as promised were offered and/or whether there was any deficiency of service.
12. In the present case, admittedly payment plan was 'possession linked payment plan'. Before issue of offer of possession letter, there was no occasion for the complainants to raise objection regarding 24 meters wide road connecting Dwarka Expressway. Otherwise, also till possession is not offered to the home buyer, they cannot bother for the amenities. It is only, when the possession is offered, the home buyer will look, whether promised amenities are complete or not. The complaint has been filed on the allegation that OP made a false representation that there was 24 meters wide road from the project to Dwarka Expressway and the project is 500 meters away from Dwarka Expressway (northern peripheral road). In fact, the project is connected to Dwarka Expressway through a 10.06 meters wide road only and the distance from the project to Dwarka Expressway is 2 kms. This 10.06 meters wide road has been encroached by the street vendors also. On 10.06 meters wide road, the OP has constructed an alternative entrance and exit gate to Parcel-A. In order to reach to the flats in Parcel-B & C, the buyers will have to enter through the gate of Parcel-A and travel across the narrow road of Parcel-A. Initially the OP represented that there are separate direct entrance and exit gates to all 3 Parcels from 24 meter wide road. Clause 34.6.1 of the National Building Code stipulates that for high-rise buildings the width of the main street on which the building abuts shall not be less than 12 meters and one end of this street shall join another street not less than 12 m in width. In case of emergency, it is impossible for the fire brigade or an ambulance to reach conveniently to the project. Allotment was cancelled vide letter dated 09.12.2017 i.e after filing on the complaint on 20.11.2017.
The OP stated that Director, Town and Country Planning, Haryana approved Zoning Plan, vide Drawing No.2921 dated 08.12.2011, prepared by the authorities, wherein they reserved the land for construction of 24 meters wide sectorial road connecting the project land to Dwarka Expressway. The said 24 meters wide road connecting Sector 104, Gurgaon with Dwarka Expressway was projected again in Development Plan for the year 2025 as well as for the year 2031. The Director, Town and Country Planning, Haryana sanctioned layout plan for the project "Godrej Summit", vide Memo No.17360 dated 05.09.2012, in which, a condition has been put upon the OP to pay proportionate cost for construction of 24/30 mtrs. wide road/major external road as and when finalized and demanded by the Director General, Town and Country Planning, Haryana. It was the responsibility of the state government to construct the road. Since the government has not constructed 24 meters wide road which was outside the project, the OP provided the additional access on the revenue 'rasta' to ensure a tentative access to the flat owners. The OP has filed Writ Petition No.6187 of 2018 before the Punjab & Haryana High Court seeking direction to the government authorities to construct 24 meters sectorial road.
13. Even after offer of possession, 7 years have expired, but 24 meters wide sectorial road has not been constructed on the spot. Expensive flats were sold, representing that the project is connected with Dwarka Expressway through 24 meters wide road and is at a distance of 500 meters from it. Initially the OP represented that there are separate direct entrance and exit gates to all 3 Parcels from 24 meter wide road. The home buyer agreed for sale price on these prime features. Now the OP has constructed an alternative entrance and exit gate to Parcel-A on 10.06 meters wide revenue road, which too is under encroachments. In order to reach to the flats in Parcel-B & C, the buyers will have to enter through the gate of Parcel-A and travel across the narrow road of Parcel-A. Thus there is shortcoming in fulfilling the obligations as per brochure, which amounts to deficiency in service. The decision of the home buyer, seeking refund does not amount to breach of contract on the part of the home buyer. Supreme Court in Bangalore Development Authority Vs. Syndicate Bank, (2007) 6 SCC 711, Fortune Infrastructure Vs. Trevor D' Limba, (2018) 5 SCC 442, Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, (2019) 5 SCC 725, Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, 2019 (6) SCALE 462 and has held that the buyer cannot be made to wait for indefinite period for possession.
O R D E R
In view of the aforesaid discussions, the complaint is allowed. The OP-1 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 refund, within a period of two months.
..................................................J RAM SURAT RAM MAURYA PRESIDING MEMBER ............................................. BHARATKUMAR PANDYA MEMBER