National Consumer Disputes Redressal
M/S. Aarcity Builders Private Limited vs Subhash Sharma & Anr. on 23 September, 2021
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 536 OF 2021 (Against the Order dated 18/02/2020 in Complaint No. 378/2017 of the State Commission Haryana) 1. M/S. AARCITY BUILDERS PRIVATE LIMITED THROUGH ITS AUTHORIZED SIGNATORY, JAIKISHAN VERMA, 30, KRISHNA APRA BUSINESS SQUARE, NETA JI SUBHAS PLACE PITAMPURA NEW DELHI 110034 ...........Appellant(s) Versus 1. SUBHASH SHARMA & ANR. S/O. SRI NAND LAL SHARMA, R/O. QUARTER B2, OLD JINDAL STAFF COLONY, M/S JINDAL STAINLESS LTD OP JINDAL MARG HISAR HARYANA ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE RAM SURAT RAM MAURYA,PRESIDING MEMBER
For the Appellant : Mr. Pawan Choudhary, Advocate For the Respondent :
Dated : 23 Sep 2021 ORDER
1. Heard Mr. Pawan Choudhary, Advocate, for the appellant, through video conferencing.
2. This appeal has been filed against the order of State Consumer Disputes Redressal Commission, Haryana, Panchkula, dated 18.02.2020, passed in Consumer Complaint No. 378 of 2017, allowing the complaint and directing the appellant to refund Rs.21 lakhs along with interest @ 9% per annum from the date of respective deposit within 45 days and thereafter interest @ 12% per annum till its realization, Rs. one lakh as the compensation and Rs.21000/- as the cost of litigation.
3. The office has submitted report that this appeal has been filed with delay of 400 days. Supreme Court in Suo Moto Writ Petition No. 3 of 2020, has directed to exclude the limitation from 15.03.2020. In the present case, impugned order was passed on 18.02.2020 and certified copy was dispatched on 20.03.2020 as such the appeal is treated within time, in view of the order of Apex Court.
4. Subhash Sharma (respondent-1) filed Consumer Complaint No. 378 of 2017 for directing M/s. Aarcity Builders Private Limited (the appellant) and Hisar Real Estate Pvt. Ltd. (respondent-2), (hereinafter referred to as the builder) (i) to refund an amount of Rs.21,00,000/- along with interest @ 10% per annum, (ii) to pay compensation of Rs.10,00,000/-, (iii) to pay Rs. one lakh as the cost of litigation and (iv) any other relief which the Commission deems fit and proper, in the circumstances of the case, be passed.
5. The facts as stated in the complaint are that the builders were companies, engaged in business of development and construction of multi-story residential and commercial buildings and selling its unit to the prospective buyers. The builders launched for construction of residential complex in the name of "Aarcity-Regency Park" in Sector-9 and 11, Hisar, Haryana, in 2012. Anindita Sharma and Anuradha Sharma (the daughter-in-laws of the complainant) booked a 3BHK flat, admeasuring of 1625 Sq. ft, in "Aarcity-Regency Park" in 2012 and they were allotted Flat No. D-0804, Tower-D at 8th Floor. Basic price of the flat was Rs.48,10,625/-. Flat Buyer Agreement (for short FBA) was executed on 05.11.2012. With prior permission of the builders, the aforesaid flat was transferred to the complainant on 22.03.2013 by the original allottees. The original allottees/ complainant deposited Rs.7,00,000/- on 08.07.2012, Rs.1,00,000/- on 26.08.2012, Rs.4,00,000/- on 13.12.2012, Rs.4,00,000/- on 07.03.2013, Rs.3,00,000/- on 08.04.2013 and Rs.2,00,000/- on 07.02.2014 (total Rs.21,00,000/-). The complainant opted for "Construction Link Payment Plan". In clause-18 of the FBA, promised period of possession was mentioned as 36 months with grace period of 90 days, from the date of allotment letter. After paying the instalment in February, 2014, the complainant visited the site and found that the construction was stopped, since a long time. The complainant then met the builder and inquired for the reason of stopping construction then they informed that as the labourers were not available as such the construction was stopped. They assured that they would arrange the labourers and start construction soon. Although the builders issued demand letters but on the site, no construction was not going on since 2013, as such the demand letters after February, 2014 were not honoured. Under the FBA, the builder had to deliver of possession, till November, 2015 but the builder was not showing any interest to complete the construction. Due to unreasonable delay in delivery of the possession, the complainant requested to return his money along with interest, through legal notice dated 04.04.2017, but no reply was given. On these allegations, this complaint was filed on 12.06.2017.
6. On the notice, the appellant put appearance before State Commission on 10.01.2018 and took time for filing its written reply. On his request the case was adjourned for 07.03.2018, granting time to filed written reply. Thereafter, the case was adjourned on 07.03.2018, 24.04.2018, 26.07.2018, 24.09.2018, 12.11.2018, on the request of the counsel for the appellant for filing the written reply. On 18.12.2018, the builder again sought for adjournment for filing written reply, which was allowed on the cost of Rs. 30,000/- and 21.01.2019 was fixed. On 21.01.2019, the case was again adjourned for filing written reply and payment of cost and 13.02.2019 was fixed. On 13.02.2019, no one appeared on behalf of the appellant, nor written reply was filed and cost was paid, as such, the right of the builder to contest the case was closed and the case was fixed for 17.05.2019, for the evidence of the complainant. Subhash Sharma filed his Affidavit of Evidence and various documentary evidence. State Commission by judgment dated 18.02.2020, allowed the complaint. Hence this appeal has been filed on 17.08.2021.
7. In this appeal, the appellant does not deny the material facts as stated in the complaint. According to the appellant under the FBA, reciprocal liability have been created on the both the parties. The complainant was liable for timely payment of the instalments, which was an essence of the contract. The builder issued demand notices dated 03.01.2014, 18.01.2014, 07.02.2014, 02.04.2014, 20.04.2014, 11.10.2014, 05.11.2014, 15.07.2015, 05.08.2018, 14.11.2015 and 16.11.2015 to the complainant but in spite of the service of the demand notices, the complainant did not respond any of the notice. The complainant opted for "Construction Link Payment Plan" as such he was bound to pay the instalment at the different level of the construction, according to the plan. As the complainant stopped payment after February, 2014, as such he cannot complain for delay in completion of the construction. The builder also waived interest for delayed period, on 21.01.2016, even then delayed instalments were not paid. State Commission has imposed heavy cost, making it impossible for the appellant to contest the matter. The order of State Commission is illegal and liable to be set aside.
8. I have considered the arguments of the appellant and examined the record. A perusal of the order sheet shows that the case was adjourned on the request of the appellant on 10.01.2018, 07.03.2018, 24.04.2018, 26.07.2018, 24.09.2018, 12.11.2018, but written reply was not filed. The cost was imposed on 18.12.2018, when again adjournment was sought. Rs. 30000/- was not such a big amount for a builder of multi-storied building, so as to make it impossible for him to pay. Absolutely no reason has been given for not filing written statement on earlier dates, which shows that the delaying tactic and harassing attitude of the builder. I do not find any illegality of the order of State Commission in this respect.
9. According to the complainant, the construction on the site was stopped since 2013. Last instalment was paid him on 07.02.2014, receipt of which has been filed. If the builder had stopped the construction work on the site, then there was no justification for him to issue demand notice as the payment was based on construction.
10. It has been stated that the construction was being done with full sprint. But till today, the builder could not produce the Occupation Certificate, relating to Tower, in which the flat of the complainant was allotted in July, 2012, although under FBA, the possession had to be delivered till November, 2015. The builder's defence for delaying construction is not liable to be accepted. The argument that the complainant was a subsequent transferee as such he cannot insist for delivery of possession on the schedule fixed in FBA, is not liable to be accepted. Supreme Court in Laureate Buildwell Pvt. Ltd. Vs. Charanje, 2021 SCC OnLine SC 479, has held that a subsequent transferee stepped in the shoes of the transferor with same right and liability. In the present case, the transferors were daughter-in-laws of the complainant and the transfer was made with prior permission of the builder.
11. Supreme Court in Bangalore Development Authority Vs. Syndicate Bank, (2007) 6 SCC 711, Fortune Infrastructure Vs. Trevo D'Lima, (2018) 5 SCC 442 and Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, 2019 6 SCC OnLine SC 438, has held that an allottee cannot be made to wait for indefinite period for the possession. The builder could not obtain Occupation Certificate till today although Rs.21 lakhs was paid till February, 2014, and promised period of possession was 3 years 3 months. In the circumstance, the order of State Commission does not suffer from any illegality.
O R D E R
In view of aforementioned discussions, the appeal has no merit and it is dismissed.
......................J RAM SURAT RAM MAURYA PRESIDING MEMBER