National Consumer Disputes Redressal
Brig. Rajiv Vig (Retd.) & Anr. vs Ireo Fiveriver Private Ltd. on 24 August, 2018
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 3059 OF 2017 1. BRIG. RAJIV VIG (RETD.) & ANR. ...........Complainant(s) Versus 1. IREO FIVERIVER PRIVATE LTD. Through its Managing Director, 305, 3rd Floor, Kanchan House, Karampura Commercial Complex, New Delhi -110015 2. IREO Fiveriver Private Ltd. S.C.O. No. 6-8, 1st Floor, Sector-9-D, Chandigarh ...........Opp.Party(s) BEFORE: HON'BLE MR. JUSTICE V.K. JAIN,PRESIDING MEMBER
For the Complainant : Ms. Narender Kaur, Advocate For the Opp.Party : Mr. Saumyen Das, Advocate Dated : 24 Aug 2018 ORDER JUSTICE V.K.JAIN, PRESIDING MEMBER (ORAL) The complainants, who are husband and wife, booked a residential apartment with the opposite party in a project namely 'Ireo Fiveriver', which the opposite party was to develop in Sector 3, 4 and 4A Pinjore Kalka Urban Complex, District Panchkula Haryana. Apartment No. T-4 -504 in the aforesaid project was offered to them vide allotment letter dated 22.9.2014, for a consideration of more than Rupees one crores. The parties then executed an Apartment Buyers Agreement on 26.6.2015, incorporating their respective obligations in respect of the aforesaid allotment. As per Clause 13.3 of the aforesaid agreement, the opposite party was to apply for the occupancy certificate with DTCP within 42 months from the date of approval of building plans and / or fulfillments of preconditions imposed thereunder. The opposite party was entitled to an additional period of 180 days after the expiry of the said commitment period, for the unforeseen delays beyond its reasonable control. Clause 13.4 of the agreement provided for payment of compensation to the allottee in case of failure of the opposite party to apply for the occupancy certificate by the end of the grace period. This is also the case of the complainants that at the time of booking, a particular tower was shown to him as tower 4 in the model presented before him, but when he visited site on 12.5.2016, he found that the tower, which had been shown to him as tower 4 was in fact, tower No.9 and tower No.4 in which the flat was allotted to him, was an altogether different tower. In any case, the possession of the flat has not been offered to the complainants, despite they having already paid Rs.29,20,895/- to the opposite party. The complainants are therefore before this Commission, seeking refund of the aforesaid amount along with compensation etc.
2. The opposite party has contested the complaint on several grounds but has admitted the allotment made to the complainants as well as the payments received from them. The opposite party has taken a preliminary objection that the complainants are not consumers since they already owned a house in which they are living in Noida and that the flat in question was booked by them for speculation purposes. The opposite party has denied the allegations of the complainants as regards location of tower 4 and has claimed that the complainants had defaulted in payment of the installments, demanded on 11.2.2016. It is also alleged that the construction of the apartment was delayed on account of reasons beyond the control of the opposite party which had started the work at the site on 13.4.2015. It is alleged that despite the opposite party having already obtained Wildlife clearance on 30.10.2009, the competent authority while granting environmental clearance on 15.4.2014, imposed a fresh condition which required the opposite party to get clearance from the Standing Committee of the National Board for Wildlife. The clearance from the NBWL according to the opposite party came only on 14.3.2015.
3. The following was the payment plan contained in the Apartment Buyers Agreement:-
TOTAL APARTMENT COST 10535128.00 INSTALLMENT PAYMENT PLAN S.NO. LINKED STAGES % TOTAL 1 On Booking 3.29% of basic 276254.72 2 Within 1 month of booking 6.71% of basic 563425.28 3 On allotment (Within 60 days from the date of booking) 10% of basic 839680.00 4 On commencement of excavation 10% of basic+25% of development charges 1146880.00 5 On casting of basement slab 10% of basic+25% of development charges 1146880.00 6 On casting of second floor slab 5% of basic+25% of development charges 727040.00 7 On casting of fourth floor slab 10% of basic+25% of development charges 1146880.00 8 On casting of eighth floor slab 10% of basic + 100% of PLC 1146880.00 9 On casting of twelfth floor slab 10% of basic 839680.00 10 On casting of top floor roof slab 10% of basic 839680.00 11 On installation of external door & windows 10% of basic 839680.00 12 On Offer of Possession
5% of Basic+100% of IFMS+100% of CC for Recreational Facilities + 100% of car parking + 100% of power backup CMN Infrastructure 1022168.00 TOTAL 10535128.00 *Service Tax as applicable, subject to periodic revisions by subsequent Government notification Stamp Duty & Registration Charges shall be payable alongwith the last installment Booking/Installment payments to be drawn in favour of Ireo Fiveriver Pvt. Ltd.
4. Admittedly, the first four installments were fully paid and the fifth installment which was payable on casting of basement slab, was partly paid by the complainants. The demand letter dated 11.02.2016 issued by the OP to the complainants would show that the fifth installment payable on casting of basement slab was demanded from the complainants. The aforesaid demand letter was followed by reminders dated 21.03.2016 and 15.04.2016. The case of the complainants in this regard is that when they visited the construction site on 12.05.2016 to personally see the progress of construction, they found that actual location of Tower-4 in which allotment had been made to them, was contrary to the selection made by them. The tower which they had initially selected, turned out to be Tower-9 whereas they were given to understand, at the time of booking that it was Tower-4 in which allotment would be made to them. The location of Tower-4, at site was inferior to the location of the tower shown to them at the time of booking. Though the aforesaid allegation of the complainants has been denied by the OP, the letter received by the OP from the complainants on 13.05.2016 which is available on page 121 of the complaint paper-book corroborates the stand taken by the complainants in this regard. Despite the complainants specifically stating in the aforesaid letter that the actual location of Tower-4 shown on the ground turned out to be totally contrary to their selection and the tower which they had selected initially, was now stated to be Tower-9, no communication was sent by the OP to the complainants controverting the aforesaid statement. There is no explanation from the OP for not controverting the aforesaid contemporaneous averment of the complainants despite having received the aforesaid letter on 13.05.2016. The failure of the OP to respond to the aforesaid letter of the complainants clearly indicates that the statement made by the complainants in the aforesaid letter was correct and that is why the OP did not controvert the same. I therefore, have no hesitation in holding that either the OP played a trick upon the complainants by showing an incorrect location of Tower-4 in which allotment was made to them or the OP changed the location to Tower-4 at a later date. The complainants therefore, were not obliged to accept the flat in a tower located at a location different and inferior from the location shown to them at the time of booking. The complainants therefore, were entitled to either change of the allotment from Tower-4 to Tower-9 which the OP claimed to be Tower-4 at the time of booking, or refund of the amount paid by them to the OP with appropriate compensation. The failure of the complainants to pay the fifth installment therefore, cannot be held against them and would not dis-entitle them from claiming refund of the amount paid by them to the OP.
5. Coming to the delay in completion of the construction, the case of the OP is that the construction commenced late on account of the competent authority granting environmental clearance, imposing fresh condition requiring them to obtain clearance from the standing Committee of NBWL despite they having already obtained the clearance from NBWL. This Commission cannot go into the question as to whether the condition imposed by the authority granting environmental clearance on 15.04.2014 was in accordance with law or not. If the said condition was unreasonable or was not in accordance with law, the OP ought to have challenged the same before an appropriate forum. As far as the allottee is concerned, he cannot be made to suffer on account of delay in obtaining the fresh clearance from NBWL in compliance of the condition imposed by the authority granting environmental clearance. Moreover, the environmental clearance containing the aforesaid condition having been granted on 15.04.2014, the OP was fully conscious of the said condition when it accepted the booking of the complainants at a later date. The fresh clearance from NBWL had not been obtained by the time the booking was accepted from the complainants.
6. Anyhow the most important aspect of this matter is that the license which the OP had obtained for carrying out development itself expired in March 2016. The said license has not been renewed till date. On expiry of the said license, the OP could not have continued construction of the apartment. The date on which the license was to expire, was known to the OP at the time the license was issued. Therefore, they ought to have obtained renewal of the license well before its expiry in March 2016. It would be pertinent to note here that in para 21 of the complaint, it is specifically stated that the license which was valid till 22.03.2014 was renewed for a period of two years till March 2016 and the aforesaid averment has not been denied in the written version, while responding to para 21 of the complaint. Since the license for the construction of apartments expired more than two years ago, the OP is not in a position to complete the construction of the apartment within the time stipulated in the Flat Buyers Agreement. This is yet another ground which entitles the complainant to obtain the refund of the amount paid by them to the OP.
Complainant no.1, who is present in the Court, states that he is restricting the claim to the refund of the principal amount paid by him, along with compensation in the form of simple interest @ 10% per annum.
7. For the reasons stated hereinabove, the complaint is disposed of with the following directions:
The opposite party shall refund the entire principal amount of Rs.29,20,895/- to the complainants, along with compensation in the form of simple interest @ 10% per annum from the date of each payment till the date of refund.
The opposite party shall pay a sum of Rs.25,000/- as cost of litigation to the complainants.
The payment in terms of this order shall be made within three months from today.
......................J V.K. JAIN PRESIDING MEMBER