National Consumer Disputes Redressal
Ambrish Kumar Shukla & 21 Ors. vs Ferrous Infrastructure Pvt. Ltd. on 26 April, 2023
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 97 OF 2016 1. AMBRISH KUMAR SHUKLA & 21 ORS. H. No. 412, 1st Floor, Sector -6, Bahadurgarh Jhajjar Haryana - 124 507 2. NIRAJ PRATAP . 3. DR. M.V. PADMA . ...........Complainant(s) Versus 1. FERROUS INFRASTRUCTURE PVT. LTD. SETH FARMS, KHASRA NO. 41,42,44,45, MEHRAULI, GURGAON ROAD, GHITORNI, NEW DELHI-110030 ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE RAM SURAT RAM MAURYA,PRESIDING MEMBER HON'BLE DR. INDER JIT SINGH,MEMBER
For the Complainant : Mr. Uttam Datt, Advocate
: Ms. Sonakshi Singh, Advocate For the Opp.Party : Ms. Namitha Mathews, Advocate
: Mr. Pulkit Malhotra, Advocate
Dated : 26 April 2023 ORDER
1. Heard Mr. Uttam Datt, Advocate, for the complainants and Ms. Namitha Mathews, Advocate, for the opposite party.
2. Initially 26 home buyers filed above complaint as a class-action complaint along with IA/1030/2016, under Section 12(1)(c) of Consumer Protection Act, 1986, for grant of leave to institute representative complaint, which was allowed on 02.11.2016. After allowing of IA/1030/2016, several implealment and withdrawal applications have been filed and allowed time to time. At present there are 50 home buyers, as the complainants. Out of which, 7 are allottees in Tower-1, 22 are allottees in Tower-2, 17 are allottees in Tower-3, one is allottee in Tower-4, two are allottees in Tower-5 and one is allottee in Tower-6 of the project, which are low rise towers of the project "Beverly Homes" situated at Sector-89, Phase-2, Faridabad, Haryana.
3. Above complaint has filed for directing the opposite party to (i) complete the construction of the project "Beverly Homes" including common facilities and amenities as per specification and sanctioned plan and handover possession of the flats to the complainants; (ii) pay delay compensation in the form of interest @18% per annum on their deposit, from due date of possession till the delivery of possession; (iii) refund the amount charged as interest for delay in payment of instalments, with interest @24% per annum, compounded quarterly; (iv) charge EDC/IDC including enhanced EDC/IDC, on pro-rata basis of actual amount paid and refund excess amount collected in this head, with interest @24% per annum compounded quarterly; (v) refund the amount collected in the head of Club Membership, with interest @24% per annum compounded quarterly; (vi) bear increased service tax; (vii) pay Rs.5/- lacs, as compensation to the complainants for design flaw of the complex due to its lower level than the road level of HUDA; (viii) carry out measurement of super area and carpet area by an independent Architect and if carpet area is found less than 95% of super area then pay Rs.5/- lacs, as compensation to the complainants; (ix) pay Rs.5/- lacs, as compensation to the complainants for sub-standard construction: (x) pay Rs.5/- lacs, as compensation to the complainants for construction of high rise towers blocks; (xi) pay Rs.2/- lacs, as compensation to the complainants for mental agony and harassment; (xii) pay 5% of basic sale price with interest @24% per annum compounded quarterly as "Timely Payment Rebate"; (xiii) pay litigation costs; and (xiv) any other relief which is deemed fit and proper in the facts and circumstance of the case.
4. The complainants 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 projects and selling its unit to the prospective buyers. The opposite party launched a group housing project in the name of "Beverly Homes" at Revenue Estate of village Riwazpur, Sector-89, Faridabad, Haryana, in the year 2009 and made wide publicity of its facilities and amenities. As per brochure, "low rise apartment block" would comprise ground floor plus two upper floors, super area in three sizes i.e. 876 sq.ft., 1022 sq.ft. and 1203 sq.ft., with low density and large green area and possession would be handed over within 24 months. All the complainants booked their flats in "low rise apartment block" on different dates in the year 2009 and deposited booking amount, which was 12% of Basic Sale Price i.e. Rs.1864/- per sq.ft.. Total price of the flat of area 1203 sq.ft. was Rs.2237000/- + Additional charges. The opposite party prescribed two payment plans i.e. "construction link payment plan" and "down payment plan" under which 87% BSP + PLC + EDC/IDC (including booking amount) was payable within 45 days of booking and 8% of BSP was given as rebate. All the complainants made payment under "down payment plan". The construction commenced in September, 2010. The opposite party started execution of Floor Buyer-Seller Agreements thereafter, in favour of the complainants upto 2012. None of the complainants were permitted to read the agreement and they were made to sign on dotted lines. Clause-12 of the agreement provides that possession would be handed over within 24 months of signing of the agreement with grace period of 180 days for obtaining "occupation certificate". Said period has expired in the year 2014, for all the complainants but the opposite party could not complete construction and offer possession. As and when the complainants inquired about possession then some tentative date used to be informed and after some time the opposite party stopped responding. Clause-13 of the agreement provides for delay compensation after 30 months of the agreement but the opposite party is not giving any compensation. Clause-6 of the agreement provides for payment of interest @24% per annum for delayed payment of instalment as such the home buyers are also entitled for same interest as delay compensation. The level of flat at ground floor is lower than the level of road of Haryana Urban Development Authority. There was water seepage in all the flats, plaster has peeled off at several places, timber quality was of very low standard, bathroom tiles are multi-coloured and patch work appears and aluminium windows were installed in place of wooden window. The opposite party has charged Rs.50000/- from each of the complainants as club membership but the club building has not been constructed rather the opposite party is asking to share club in another project. Service tax has increased from 12% to 14.5% due to delay in possession, as such, the opposite party is liable to bear enhanced service tax. The opposite party is not charging EDC/IDC on pro-rata basis from the home buyers of entire project. The opposite party has charged EDC/IDC @Rs.130/- per sq.ft. in the year 2009 but in the year 2012, they started demanding EDC/IDC @Rs.312 per sq.ft., although Haryana Government, vide Circular dated 07.11.2013, prohibited the builders from realizing EDC/IDC at enhanced rate. This complaint was filed on 27.01.2016, alleging deficiency in service.
5. The opposite party filed its written reply on 16.05.2016 and contested the matter. The opposite party stated that all the complainants booked their flat on different dates and agreements with them were of different dates as such due date of possession could not be same. Some of the complainants are defaulters in payment of instalment, cause of action for all of them and delay compensation were different. There was no sameness of the interest and the complaint under Section 12(1)(c) of the Consumer Protection Act, 1986 is not maintainable. Value of the flats of individual complainant is very less than the pecuniary jurisdiction. By way of forum shopping, this class action complaint has been filed to achieve the pecuniary jurisdiction of this Commission. Some of the complainants are already availing remedy. Clause-54 of the agreement contained an arbitration clause and the complainants be relegated for arbitration. The complaint is time barred as according to own allegation, last demand was raised in July, 2013. The allegation that all the complainants made payment under "down payment plan" is incorrect and contrary to the own allegation that demand of instalment was raised in July, 2013. The opposite party nowhere represented that carpet area would be 95% of super area. The complainants refused to pay External Electrification Charges with malafide intension of arm twisting. After reading and understanding, the complainants signed the agreement. After expiry of so many years, allegations that they had signed on dotted line, is not liable to be accepted. The opposite party has obtained Development Licence No.229 of 2007 on 28.09.2007 and completed construction on time but Haryana Urban Development Authority has delayed external development i.e. laying down sewage line, electricity supply lines, potable water supply line, construction of sector road connecting the project etc. although EDC has been deposited in the year 2009. The project "Beverly Homes" includes low rise apartment and high rise apartment and one club building has been constructed for entire project. There is nothing on record to prove that the opposite party had to construct separate club building for low rise apartments.The allegation that the opposite party has abandoned the project is false rather the construction has been fully completed as is proved from photographs. Allegations relating low quality of construction and material being used are false. Sector road was constructed after completion of the construction of the project. If height of the road was raised then for that reasons, the construction of the project cannot be said to be defective. Interest of the home buyers is protected under the agreement by providing delay compensation, which would be paid at the time of delivery of possession. Under the agreement the home buyers have agreed to reimburse the tax liability and statutory payments. The opposite party denied about deficiency in service. The complaint is liable to be dismissed.
6. The complainants filed Rejoinder Reply, Affidavit of Evidence, Affidavit of Admission/Denial of documents of A.K. Sanghi and documentary evidence. The opposite party filed Affidavit of Evidence, Affidavit of Admission/Denial of documents of Sunil Kumar Mittal and documents. Both the parties have filed their written arguments.
7. The opposite party vide IA/6316/2020 has filed additional document showing that Ferrous Beverly Homes Residents Welfare Association had represented before Haryana Real Estate Regulatory Authority, Panchkula and in pursuance of the settlement between the parties the opposite party issued possession letter dated 25.08.2020 to the various members of the Association. The opposite party through IA/6828/2022 filed additional document i.e. order of Haryana Real Estate Regulatory Authority, Panchkula dated 20.12.2021, by which, HRERA has permitted to hand over possession to the buyers as well as photos of the construction showing that construction has been completed.
8. The counsel for the opposite party raised preliminary issue and argued that order dated 02.11.2016 by which permission under Section 12 (1)(c) of the Consumer Protection Act, 1986 was granted is liable to be recalled and the complaint be treated as joint complaint of the persons who are arrayed as the complainants, in view of judgment of Supreme Court in Brigade Enterprises Limited Vs. Anil Kumar Virmani, (2022) 4 SCC 138. Inasmuch as there are total seven towers, out of which Tower-D was commercial building and the complainants in the present case are allottees in six different towers, their allotments and agreements were of different dates, as such, due date of possession are different for them. There is no sameness of interest between the parties and permission under Section 12(1)(c) of Consumer Protection Act, 1986 has been wrongly granted in this case.
9. We have considered the arguments of the counsel for the parties and examined the record. Section 12(1)(C) provides as follows:- "Section 12 (1). Manner in which complaint shall be made.--(1) A complaint in relation to any goods sold or delivered or agreed to be sold or delivered or any service provided or agreed to be provided may be filed with a District Forum by--
(a) ......
(b).....
(c) one or more consumers, where there are numerous consumers having the same interest, with the permission of the District Forum, on behalf of, or for the benefit of, all consumers so interested; or"
The definition of the complaint as given under Section 2(1)(c) of the Act and relevant for this case is "allegations in writing made by a complainant that the services hired or availed of or agreed to be hired or availed of by him suffer from deficiency in any respect".
10. All the persons, whether consideration paid in part or in full, payment plans were different or possession was taken/not taken, final conveyance deed executed or not executed are consumer within the meaning of this Act and can file complaint alleging deficiency in service. The term "same interest" has been used under Section 12(1)(c) of the Act, for representative complaint. The word "interest" as defined in Black's Law Dictionary (Ninth edition) is "the word includes any aggregation of rights, privileges, power and immunities". If term the same interest, in relation to Section 12(1)(c) of the Act, is examined then it refers to same kinds of interest meaning thereby the persons have same kind of rights, privileges, powers and immunities. The quantum of interest is not material, but kind of interest is material as held by Full Bench of this Commission in Ambrish Kumar Shukla & 21 Ors. Vs. Ferrous Infrastructure Pvt. Ltd., I (2017) CPJ 1 (NC), which has been upheld by Supreme Court in Rameshwar Prasad Shrivastava and Ors. Vs. Dwarkadhis Projects Pvt. Ltd. and Ors. (2019) 2 SCC 417.
11. Supreme Court in Chairman, Tamil Nadu Housing Board, Madras Vs. T.N.Ganapathy, (1990) 1 SCC 608 held that the purpose of permitting a representative suit is in public interest, inasmuch as if numerous persons are interested in the same subject matter of dispute, then instead of requiring them to file separate suit against same defendant, it is in public interest to permit one suit in representative capacity in order to avoid multiplicity of litigation. The effort should be to give an interpretation which would sub-serve the said object by reducing the increasing inflow of the consumer complaints in the consumer forum.
12. In the present case numerous flat buyers are aggrieved due to delay in handing over possession of the flats allotted to them although due date for possession has expired long back and all of them has paid either under subvention scheme or instalments under "construction link payment plan" as per demand of the opposite party. As such, there is sameness of interest for all the complainants as they are aggrieved by delay in possession of their flats in the project of the opposite party. It is immaterial that their agreements were executed on different dates and due date of possession defers for all the complainants. Therefore, there is no reason for recalling of the order dated 02.11.2016.
13. Clause12 of the Agreement provides that the opposite party shall hand over possession of the floor within 24 months from the date of issuance of sanction letter of the project with grace period of 180 days after 24 months for completing and obtaining occupation certificate in respect of project from the concerned authority. The agreement was executed on 05.04.2010. The layout plan was sanctioned on 16.08.2010, as such, 24 months period expired on 15.08.2012 and six months grace period expired on 15.02.2013. Thus, due date of possession has expired. The opposite party could not obtain occupation certificate from the competent authority till today, as such, there is deficiency in service on the part of the opposite party in handing over possession to the Flat Buyers in terms of the agreement.
14. So far as the order of Haryana Real Estate Regulatory Authority, Panchkula, is concerned, it has given liberty to the Flat Buyers to take possession as the building was complete, but in absence of occupation certificate from the competent authority such type of direction cannot be given by this Commission as it would be in violation of the provisions of Haryana Building Code, 2017. The opposite party is liable to be directed to obtain "occupation certificate" within the time bound period and offer possession to the complainants in accordance with terms and conditions of the agreement.
15. The complainants have claimed delay compensation. Since, the complainants have paid 90% of the consideration, as such, they cannot be blamed for causing the delay. In such circumstances, the complainants are entitled for delay compensation in the form of interest @6% per annum on their deposits from due date of possession till the offer of possession as held by Supreme Court in Wg. Cdr. Arifur Rahman Khan Vs. DLF Southern Homes Pvt. Ltd., (2020) 16 SCC 512 and DLF Home Developers Limited Vs. Capital Green Flat Buyer's Association, (2021) 5 SCC 537.
16. So far as demand of the opposite party in respect of EDC and IDC are concerned, it is in accordance with statutory provision and the complainants are liable to pay for it.
17. The complainants have alleged deficiency in quality of construction, but no evidence has been adduced by them. At the time of granting of occupation certificate, the statutory authority will examine the quality of the construction. At this level, no finding can be recorded by this Commission.
18. So far as the allegation that the construction is at lower level than the road is concerned, the opposite party has stated that road was constructed after start of the construction, as such, on this ground, no fault can be found in the act of the opposite party. The demand of club membership, service tax and increase in area are in accordance with the agreement, as such, the complainants are liable to pay for it.
ORDER
ln view of aforesaid discussions, the complaint is partly allowed. The opposite party is directed to obtain "occupation certificate" and handover possession to the complainants of the flats attotted to them, complete in all respect as per specification, after taking balance consideration, within four months from the date of this judgment. At the time of offer of possession, the opposite party shall pay delay compensation to the complainants in the form of interest @6% per annum, on their deposit, from due date of possession as per their agreement till the date of offer of possession.
......................J RAM SURAT RAM MAURYA PRESIDING MEMBER ...................... DR. INDER JIT SINGH MEMBER