National Consumer Disputes Redressal
Venkataraman Krishnamurthy & Anr. vs Lodha Crown Buildmart Pvt. Ltd. on 9 November, 2022
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 35 OF 2018 1. VENKATARAMAN KRISHNAMURTHY & ANR. n 1401, nyasa, raj lakeview, 29th main, btn 2nd stage ns playa main road bangalore - 560076 karnataka 2. GOPI VRNKATARAMAN W/O MR. VENKATARAMAN KRISHNAMURTHY, N 1401, NYASA, RAJ LAKEVIEW 29TH MAIN, BTN 2ND STAGE NS PALYA MAIN ROAD BANGALORE - 560076 KARNATAKA ...........Complainant(s) Versus 1. LODHA CROWN BUILDMART PVT. LTD. 216, shah and nahar industrial estate, dr. e. moses road worli, mumbai - 400018 maharashtra ...........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. Anandana Handa, Advocate
Mr. Vipul Kumar, Advocate For the Opp.Party : Mr. Rahul Kripalani, Advocate
Ms. Rea Bhalla, Advocate
Dated : 09 Nov 2022 ORDER
DR. INDER JIT SINGH, MEMBER
1.The present Consumer Complaint (CC) has been filed under Section 21(a)(i) of the Consumer Protection Act, 1986 (for short "the Act") by the Complainants against Opposite Party (OP) as detailed above, inter alia praying for:-
To direct OP to refund Rs 2,25,31,148/-.along with compensation of compound interest @ 18% on the total amount from the date of deposit of the amount till final date of payment.
To direct OP to pay compensation of Rs 1,00,00,000/- towards harassment, mental agony, torture, deficiency in services and unfair trade practices. Rs.10,00,000/- towards physical strain and mental agony.
Compensation of Rs.1,00,000/- towards litigation cost.
2. Notice was issued to OP, giving them 30 days time to file written statement. Written statement was filed by OP on 17.07.2018.
3. It is averred in the Complaint that: -
The Complainants booked an apartment in B Wing, 6th floor bearing Unit No.B-602, measuring 1966 sq.ft. in Lodha Evoq, situated at New Cuffe Parade, Wadala, Mumbai vide application dated 13/05/2013.The total consideration for the said apartment was Rs. 7,55,50,956/- out of which Complainants paid Rs. 2,25,31,148/-.till date. The possession was to be delivered on 30/06/2016.
OP has not delivered the possession of the said unit despite numerous follow ups from the Complainants and has indulged in unfair trade practices.
The Complainants raised various questions regarding terms and conditions of the application form which were not as per the representation made by the OP, and were one sided clauses favouring OP only such as arbitration clause, forfeiture clause etc, the OP however, replied that the clauses are standard clauses and will not apply to the Complainants.
Due to delay in payment of one installment by the Complainants as they were travelling out of India, OP threatened to terminate the agreement and forfeit 10% of the amount paid, which clearly shows the intention to look for an opportunity to forfeit money of the Complainants.
OP vide letter dated 16/09/2015, informed Complainants that he is unable to procure permissions from Civil aviation Authorities and as a result there is delay in construction of the project, and further revised the date of possession to December 2016. Complainants made numerous requests for site visit but OP did not arrange it for them, rather asked the Complainants to first make the payment.
Complainants in order to timely make the payment arranged a loan from HDFC bank, and spent Rs.50,000/- on the process of acquiring loan. Further Complainants would not be liable to pay GST on any payment if the OP had delivered the possession on time. These unfair and arbitrary acts of OP led to huge financial stress to the Complainants. Due to these grave deficiencies Complainants sent a legal notice dated 01/07/2017 terminating the contract and asking for refund of their amount. OP replied to letter stating that the delay happened due to unforeseeable circumstances and Complainants do not have right to terminate the contract, even if they do so, their 20% money of the total consideration will be forfeited and hence no refund will be given to them.
OP in unfair and arbitrary manner refused to answer the queries of Complainants and further the OP started offering bare shell units instead of designer units, but this choice was denied to the Complainants. Conduct of OP in not delivering the possession led to financial loss, mental agony to the Complainants.
4. The OP in their written statement/reply stated that: -
Allegations of unfair trade practices are baseless, have been made with an ulterior motive to extort money from the OP.
Clause 11.2 of the agreement mentions grace period of one year, hence the date of possession is 30/06/2017, Occupation certificate was received on 08/06/2017 and the OP communicated to Complainants on 08/06/2017 to pay the remaining amount in order to start the possession process, however due to default of payment on part of Complainant the possession could not be delivered on time and hence there is no delay on part of OP. Also on 12/06/2017 and 19/06/2017, OP sent reminders to Complainant to make the payment but Complainants ignored it and hence, there is no cause of action.
The termination of agreement by the Complainant is baseless, as they stated that their request to move to bare shell flats from designer flat was rejected by OP, however it is pertinent to mention that OP started selling the bare shell flats in 2015, that is why OP could not have offered bare shell flats to Complainants in 2013. The flat allotted to Complainants is designer flat and comes with all the amenities as per designer flats.
The Complainants suppressed various crucial facts such as their default in making the payment, intimation of Occupation certificate by the OP, Complainants terminated the contract just to avoid GST etc. That the Complainants have used this Commission as a tool to claim compensation of their own wrongs and the complaint is liable to be dismissed. OP denies all the allegations of Complainants regarding unfair trade practices, deficiency of services etc.
5. Complainants in their rejoinder dated 28.08.2018, while reiterating the pleas taken in their complaint and denying the allegations in the reply of OP, stated that:-
Clause 11.1 of the agreement states that first the possession of the flat to be provided for fit-outs and then the final possession needs to be provided, however possession for fit-outs was not provided by the OP, further states that OP has still not received the Occupation certificate from the concerned authorities..
6. Evidence by way of an Affidavit was filed by the Complainants and OP, broadly on the lines of averments made in the complaint and written statement.
7. The details of the flats allotted to the Complainants:-
Sr No Particulars 1 Project Name/Location etc. Lodha Evoq, New Cuffe Parade, Near IMAX Dome, Eastern freeway, Mumbai 2 Apartment no.
B-602, 6th floor 3 Carpet area 1966 sq.ft.4
Date of application 13/05/2013 5 Date of Allottment 01/07/2013 6 Date of signing agreement 29/11/2013 7 Committed date of possession as per agreement (fit-outs) 30/06/2016 8 D/o Offering Possession 29/11/2017 9 D/o obtaining part occupation certificate 08/06/2017 10 Total Consideration Rs.7,55,50,956/-11
Amount paid Rs 2,25,31,148/-.12
D/o CC/Do Filing CC in NCDRC 05/01/2018.13
D/o Filing Reply/Written Statement by OP 17/07/2018 14 D/o filing Rejoinder by the Complainants 28.08.2018 15 D/o Filing Evidence by way of Affidavit by the Complainants.
03/10/2018 16 D/o Filing Evidence by way of Affidavit by the OP 28.01.2020 17 D/o filing written synopsis by Complainants 12/11/2021 18 D/o filing written synopsis by OP 07/01/2022
8. Heard counsels of both sides. The learned counsel for the Complainants while reiterating the facts of the complaint and denying all allegations of OP stated by them in their written statement, cited various Judgements of Hon'ble Supreme court's and this commission's judgements to support their contentions and stated that the occupation certificate is merely a part occupation certificate and OP has never offered possession of the unit to complainants. The learned counsel for the OP while reiterating facts of their written statements cited various judgements to support their contention and stated that the Complainants are not a consumer under the said act as they bought the flat for investment purpose, further stated that the contention of Complainants that part occupation certificate is not valid is also baseless and cited judgement to support their contention.
9. As per agreement dated 29/11/2013, committed date of offer of possession (for fit outs) was 30/06/2016 (clause 11.1 read with Annexure-2) and OP was expected to obtain occupation certificate in respect of the unit of the building within one year from this date and make available the key common areas and amenities in respect of the building. As per clause 11.2, OP is entitled to a grace period of one year beyond the dates mentioned in clause 11.2 and the date on which occupation certificate is issued shall be deemed to be the date of offer of possession. The OC has been obtained on 08/06/2017 i.e. within one year from the date for fit out possession mentioned in the agreement and the possession was offered on 08/06/2017. Vide legal notice dated 01/07/2017, Complainants has terminated the agreement. It was argued by the counsel for Complainants that the said OC dated 08/06/2017 is a part OC only and it does not permit occupation of the respective buildings, including the tower in which said unit is situated. As per special conditions mentioned in the part OC, the OP was to complete the unfinished internal works before applying for the grant of full OC. Hence part OC cannot be construed as OC contemplated by the parties under clause 11.1 and 11.2 of the said agreement as effective possession/occupation of the said unit. The Complainants also relied on the observation of Maharashtra RERA on the part OC and that of Maharashtra Real Estate Appellate Tribunal, which dismissed the appeal filed by the OP. Complainants further averred that levy of GST was occasioned solely by delay caused by OP. Complainants pointed out certain communications from the OP post part OC indicating that the unit was not safe for possession as construction was underway. It is contended by the Complainants that possession of the said unit was offered on 29/11/2017 only and complete OC is still not obtained by the OP.
10. OP on other hand argued that Complainants has paid only about 20% of total consideration at the time of agreement and balance 80% was payable at the time of possession, once the flat was ready. The Complainants have not taken possession despite being offered on 29/11/2017. As per agreement there is a grace period of 1 year to make available key common areas and amenities and hence the grace period ends on 30/06/2018. Hence the Complainants, seeking refund on grounds of delay is not maintainable. The provisions of CGST Act came into force on 01/07/2017 and he terminated the agreement on the same day. The Complainant's termination was occasioned only because he did not want to bear the burden of GST. It was argued by OP that part OC is issued under relevant rules and regulations and hence is a valid one.
11. The contention that complainants are not consumers as they have purchased the unit for commercial purpose is rejected. No such evidence has been adduced by the OP in this regard, that the Complainants have bought the unit for commercial purpose.
12. In the instant case, though there is some delay in handing over the possession of flat by the OP, it is not unreasonable which should have made the Complainants to cancel the agreement and seek refund. The Complainants are not entitled to refund with delay compensation as prayed for. In case they wish to seek refund, OP is entitled to deductions/forfeiture of earnest money as per provisions of the agreement. At the same time OP is bound to provide actual physical possession of the said unit, complete in all respects, as per specifications and amenities and facilities as promised in the brochure and/or booking form/ allotment letter/ agreement.
13. For the reasons stated hereinabove, and after giving a thoughtful consideration to the entire facts and circumstances of the case, various pleas raised by the learned Counsel for the Parties, the Consumer Complaints are allowed/disposed off with the following directions/reliefs:
OP shall deliver the actual physical possession of the unit in question, complete in all respects, as per specifications and with amenities and facilities , including the club house etc. as promised in the brochure and/or ABA within 3 months of date of this order.
OP shall arrange a joint inspection of the unit in question with Complainants/their representative and OP's representative within 15 days of date of this order. If as a result of this inspection, any deficiencies are noticed, the same shall be rectified by the OP within 30 days from the date of joint inspection. Immediately on rectification of all the defects, OP shall intimate, in writing, to the Complainants about the readiness of the unit in all respects for actual physical possession, giving him 15 days' time from the date of such communication to complete various formalities with respect to taking possession and remitting balance dues, if any, as per the payment plan/ terms and conditions of the ABA. OP shall charge EDCs/IDCs, and other charges like car parking, IBMS, club membership etc. strictly as per ABA dated 29/11/2013. No maintenance and/or holding charges shall be payable by Complainants till the date of actual physical possession after issuance of communication about readiness of the unit for physical possession. Complainants shall be liable to pay service tax/ other applicable taxes etc. payable to government agencies as per prevailing rates notified by the government and OP shall be bound to duly deposit such amounts to concerned government authorities within 45 days of receipt of such amounts under intimation to the Complainants. However, if government authorities have not raised any demand with respect to VAT etc. and OP considers that it is likely to be raised in future and create a liability which has to be borne by the Complainants, OP may take an indemnity bond from the Complainants in this regard to pay such amount in future, as and when demanded by the Government Authorities.
OP shall pay delay compensation in the form of simple interest @ 6% p.a. on the total amount paid from the committed date of possession as per ABA (30/06/2016) till the date of offer of possession (29/11/2017).
Parties to bear their respective litigation cost.
In case the Complainants does not wish to take possession of the unit in question now, for whatsoever reasons, and wishes to seek a refund, as prayed for, he shall make a specific request in this regard, in writing, to the OP within 15 days of this order. In such a situation OP shall be entitled to deductions/forfeiture of earnest money as per provisions of the agreement. OP shall, on receipt of such written request for refund the amount paid by the Complainants after making deductions towards forfeiture of earnest money, as per provisions of the agreement, within two months from the date of request from the complainants.
14. The pending IA's, if any, also stands disposed off.
......................J RAM SURAT RAM MAURYA PRESIDING MEMBER ...................... DR. INDER JIT SINGH MEMBER