National Consumer Disputes Redressal
Savior Greenisle Consumer And Buyers ... vs Savior Builders Pvt. Ltd. & 2 Ors. on 4 May, 2023
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 3187 OF 2017 1. SAVIOR GREENISLE CONSUMER AND BUYERS ASSOCIATION ...........Complainant(s) Versus 1. SAVIOR BUILDERS PVT. LTD. & 2 ORS. THROUGH ITS MD F-122A & F-122B, 1ST FLOOR, VARDHMAN TOWER, COMMUNITY CENTER, PREET VIHAR, DELHI-110092. 2. NIMAL GUPTA, DIRECTOR SAVIOUR BUILDERS PVT. LTD. THROUGH ITS MD F-122A & F-122B, 1ST FLOOR, VARDHMAN TOWER, COMMUNITY CENTER, PREET VIHAR, DELHI-110092. 3. MOHIT DHAMA, DIRECTOR SAVIOUR BUILDERS PVT. LTD. THROUGH ITS MD F-122A & F-122B, 1ST FLOOR, VARDHMAN TOWER, COMMUNITY CENTER, PREET VIHAR, DELHI-110092. ...........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. Amit Singh Chauhan, Advocate
Mr. Syed Hamza, Advocate For the Opp.Party : Mr. Prabhash Kr. Jha, Advocate
Dated : 04 May 2023 ORDER
DR.INDER JIT SINGH, MEMBER
The present Consumer Complaint (CC) has been filed by the Complainant (hereinafter referred to as Association or Society) against Opposite Parties (OPs) as detailed above, inter alia praying for directions to the OPs to:-
refund the total amount paid so far by the members of the Complainant Asociation with interest @ 18 % compounded per annum from the date of first payment.
pay compensation, not less than Rs.22,00,000/- to members of the Complainant Society i.e.. 2,00,000 per allotment towards damages for the physical and mental torture, agony, discomfort and undue hardships caused to the members of the Complainant Society;
pay to the members of the Complainant Society pendente lite and future interest @ 18% per annum.
pay the members of the Complainant Society expenses towards travel incurred by the members of the Complainant in their visits to the site, telephone etc. incurred in corresponding with Opposite Party along with such interest till the date of realization as this Hon'ble Commission may deem fit and proper;
pay the members of the Complainant Society the damages/enhanced payments made by them on account of increase in service tax/GST.
pay for losses suffered on account of rent payments made by them made by the members of the Complainant Society.
pay a sum of Rs.3,50,000 plus taxes to the members of the Complainant society towards the cost of litigation.
Notice was issued to the OP(s). Parties filed Written Statement/Reply, Rejoinder, Evidence by way of an Affidavit and Written Arguments/Synopsis etc. as per details given in the Table at Annexure-A. It is averred/stated in the Complaint that: -
The Complainant is an Association registered under the Societies Registration Act, 1860. The members of the Complainant Society have come together voluntarily and without any intention to make profit/gains and to pursue, propagate, advance, safeguard and promote the interests and welfare of the consumers in general and more particularly its members. The present complaint has been filed by Smt. Suman Sharma, President of the Complainant Society, who has been authorised vide board resolution to file the present complaint in the name of Complainant Society and on behalf of its aggrieved members seeking redressal against the OPs for the acts/commissions/omissions amounting to deficiency in services, unfair trade practices and failure of services committed by the OPs.
The OPs advertised their project 'Saviour Greenisle' in the year 2009-10 and promised quality, timely delivery and world class facilities and amenities including gym, club, malls, hospitals, spa etc. The OPs had exclusively reserved some of the flats/apartments for the employees of Steel Authority of India Limited (SAIL), inducing them to avail the exclusive opportunity. At this point of time the OPs did not have the requisite approvals to advertise and launch the Project especially Phase II in the said Project i.e. Towers A5-A9 wherein most members of the Complainant had booked their Flats. The member of the Society booked their Flats in the year 2009-2012. The members of the Complainant Society are buyers/allottees of the flats/apartments in the project of the OP namely, Saviour Greeinsle' situated at GH Plot No.11 in the township known as Crossings Republik at Village Dundahera, Ghaziabad, U.P., for a total cumulative sales consideration of Rs.3,22,12,600/-.
One-sided allotment letters/ agreements/ memorandum of understanding (MOU) favouring the OPs, were issued to them and the proposed time for possession was scheduled for the year 2012 -2013. The OPs assured the buyers that they had obtained and applied for all the requisite permissions/approvals from the approved authority. Relying upon the representations and promises regarding timely delivery, the members of the Complainant society had taken loan to finance the purchase of the Flat in the Project of the OPs and have been bearing the burden of EMIs/interest and are living in rented houses.
The OPs had been raising demands for payments at regular intervals by falsely representing that the payments have become due and the members of the Complainant Society had been making timely payments. The OPs failed to deliver the possession of the flats/apartments as promised. The complainants, on enquiry, found that the construction of the project had been halted and had been running very slow.
It is also contended by the Complainant in the complaint that the OPs have violated various laws/rules/regulation and had commenced construction without obtaining the requisite approvals and thereafter had changed the floor plans without obtaining the requisite approvals, which is evident from the warning/notification published by the Ghaziabad Development Authority (GDA), wherein it has warned the allottees of purchasing/taking possession of the flat in the project in question at their own risk.
Despite a delay, the possession has not been handed over and OPs has not obtained the completion certificate and request for the same has been rejected by the GDA.
The complainant also contended that the OPs have not completed the Project in question but in the years 2009 - 2017, launched many new projects which gives the impression that OPs have fraudulently and dishonestly misappropriated the money collected from the members of Complainant Society as the money has not been utilized in completing the construction of the project for which it was intended. As per Clause 10 in some allotment letters, clause 26 in some allotment letters and clause 4 of the Memorandum of Understanding, it was agreed by the OP that in case of any delay on part of the OPs in handing over possession, it shall be liable to pay compensation @ Rs.5/- per sq.ft. per month for the period of delay, which is very nominal and extremely unjust, and amounts to exploitation. The OP cannot escape the liability by merely mentioning a compensation clause and keep the members of the Complainant Society wait endlessly.
The members of Complainant Society have already paid Rs.2,86,62,499/- out of the consideration amount of Rs.3,22,12,600/-. Despite repeated demands for refund of money from members of the Complainant Society, the OPs failed to provide any solution/resolution to the problem. Till date neither the possession has been handed over nor the money has been refunded. Hence, the Complainant Society is before this Commission.
The OPs-1 to 3 in their written statement/reply stated that:
(i) The complaint is not maintainable and is liable to be dismissed as the Complainant does not fall within the definition of consumer as provided under Section 2(1)(d) of Consumer Protection Act, 1986.
(ii) The members of the Complainant Society are investors and not the end users of the flat/apartment, therefore, the purchase by them of these flats has been done for a commercial purpose which is specifically excluded from the ambit of the Consumer Protection Act, 1986. The members of the Complainant Society have given their other addresses in the Complaint which shows that they are the owners of one or more than one houses and have only invested in the project of the OP for the purpose of earning rent/profit from letting out the flat/apartments on rent/lease, and were never interested in staying in the properties constructed by the OP.
(iii) The complainant is not maintainable and is liable to be dismissed as the Association was illegally formed with the intention of forum shopping and has been registered only on 18.09.2017, and the case was filed in October 2017.
(iv) No refund/compensation has been raised by the Complainant Society upon the OP and the OP has never refused any such demand, therefore, the complaint is not maintainable.
(v) Complaint is not maintainable against the OP-2 & 3. OP-2 & 3 being Directors of the OP-1. It is well settled that directors of a company are not liable in their individual capacity. The complaint is not maintainable for misjoinder and non-joinder of necessary parties.
(vi) Complaint is not maintainable as the Complainant Society does not fall within Section 12 (1) (b) of the Consumer Protection Act, 1986. The Complainant is not a Society or association which has been incorporated in accordance with the UP Apartment Ownership Act and the Societies Registration Act, therefore, the complaint is liable to be dismissed on this ground alone.
(vii) Complainant is not maintainable as various causes of action, have been pleaded by the complainant before this Commission. The OP is not indulged in any unfair trade practice and there has been no deficiency in services. The OP had all the requisite permissions and NOCs (No objection Certificates) from various authorities for carrying out the construction of the project in dispute. The project has already been completed by the OPs and there is habitation of various persons and it is in function.
(viii) The complaint has been filed only to extort money from OP. OP had shown their keenness to settle the disputes of the complainants but despite the bona fide efforts of the OP, the complainants are harassing the OP and misusing the process of law.
(ix) The complaint is barred by limitation, as no Cause of Action has arisen after May 2014 as has been admitted by complainant thus the present complaint which has been filed in 2017 is barred by limitation and thus liable to be dismissed.
Heard counsels of both sides. Contentions/pleas of the parties, on various issues raised in the Complaint, based on their Complaint/Reply, Rejoinder, Evidence, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.
OPs have argued that project has already been completed, and completion certificate has been obtained by the OP from the competent authority much prior to the process of offering the possession to respective allottees, there is habitation of various persons, OP had all the requisite permissions and NOCs from the various authorities for carrying out the construction of the project in dispute, members of complainant society have defaulted in making payment to OP-1. Complainant on the other hand argued that members made timely payments, CC has not been obtained till date, and sale deeds have not been executed. Complainant pressed for relief of refund in view of OP having failed to deliver valid possession even after a gap of almost 10 years from the committed date. We have perused the allotment letters issued to some of the members of Complainant Society as per which the possession was to be given within 2012-2013. As per condition of the allotment letter, the possession of the apartment will be given only after the execution and registration of sale deed in favour of the allottee. We have perused the public notice, issued by Ghaziabad Development Authority, which states that as per approval of the Authority, possession of the flats is to be given only after obtaining the Completion Certificate from the Authority and that it has come to the notice of the Authority that M/s Saviour Builders Pvt. Ltd. is giving possession to the allottees without obtaining the requisite Completion Certificate from the Authority, which is in violation of the provisions of U.P. Town Project & Development Act, 1973. Vide this notice, all the allottees have been cautioned not to take possession without Completion Certificate and the builder was instructed not to give possession without Completion Certificate.
OP has not been able to place on record any evidence/documents that the construction has been completed as per schedule, and a valid possession was given in accordance with the terms and conditions of Allotment letter.
The objection that the Complaint is barred by limitation is not accepted. The OP(s) have failed to deliver the possession of the unit to the complainant till date and therefore, the cause of action is continuing. The contention that complainant(s) is/are not a consumer as he/they has purchased the unit for commercial/investment purposes is also rejected as no such evidence has been adduced by the OP(s) in this regard. It has been observed by this Commission in various cases (Kavita Ahuja Vs Shipra Estates Ltd, CC 137 of 2010, decided on 12.02.2015, Santosh Johri Vs M/s Unitech Ltd, CC 429 of 2014 and connected Cases, decided on 08.06.2015, Aloke Anand Vs M/s Ireo Grace Pvt Ltd & Others, CC no 1277 of 2017 decided on 01.11.2021) that purchase of a house can only be for a commercial purpose if the purchaser is engaged in the business of purchasing and selling houses or plots on a regular basis, solely with a view to make profit by way of sale of such houses, if the house is purchased purely as an investment and the purchaser is not undertaking the trading of houses on regular basis, then it would be difficult to say that he had purchased it for commercial purpose. OPs have contended that alleged Association was illegally formed with intention of forum shopping and that Complainant Society does not fall within Section 12(1) (b) of Consumer Protection Act, 1986, and that Complainant Society is not a Society or Association which has been incorporated in accordance with UP Apartment Ownership Act and Societies Registration Act. We have perused the certificate of registration No. 1889/2017 dated 18.09.2017 issued by Registrar of Societies, District East, Govt. of NCT of Delhi. The Complainant Society has been registered under the Societies Registration Act. We have also perused the MOA of the Complainant Society, its aims & objects etc. as contained in this MOA, and other related documents available in the case records. We do not find any merits in the contention of OP that Complainant Society has been illegally formed.
In the instant case, there is an inordinate delay in handing over the possession of flats to the members of Complainant Society by the OP(s). It was held by Hon'ble Supreme Court in Wg. Cdr. Arifur Rahman Khan and Aleya Sultana and Ors. vs DLF Southern Homes Pvt. Ltd. & Ors. (2020) 16 SCC 512, "failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within the contractually stipulated period, amount to deficiency". It was held by Hon'ble Supreme Court in Banglore Development authority Vs Syndicate Bank (2007) 6 SCC 711 and Fortune Infrastructure Vs Trevor D' Lima (2018) 5 SCC 422 "Home buyers cannot be made to wait for position of the flat for indefinite period". Hence, the members of Complainant Society in the present circumstances have a legitimate right to claim refund alongwith fair delay compensation/interest from the OP(s).
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 Complaint is allowed/disposed off with the following directions/reliefs: -
(i) The OP(s) shall refund the entire principal amount to the members of Complainant Association, alongwith compensation in the form of simple interest @ 9% per annum from the date of each payment till the date of refund. The principal amount refundable mentioned in this para is subject to verification of actual amount paid by the complainant based on receipts etc.
(ii) The OP(s) shall pay a sum of Rs.25,000/- as cost of litigation to the Complainant Association.
(iii) The liability of the OP(s) shall be joint as well as several.
(iv) The payment in terms of this order shall be paid within three months from today.
(v) In case the members of the Complainant Association/allottees have taken loan from Bank(s)/other financial institution(s) and the same/any portion of the same is still outstanding, the refund amount will be first utilized for repaying the outstanding amount of such loans and balance will be retained by the members/allottee concerned. The members of Complainant Association would submit the requisite documents from the concerned bank(s)/financial institution(s) to the OP(s) four weeks from receipt of this order to enable them to return/issue refund cheques/drafts accordingly.
The pending IAs, in the Consumer Complaint, if any, also stand disposed off.
Annexure-A Brief Details of the Case Sr No Particulars 1 D/o Filing CC in NCDRC 31.10.2017 2 D/o Issue of Notice to OP(s) 15.11.2017 3 D/o Filing Reply/Written Statement by OPs 12.02.2018 4 D/o filing Rejoinder by the Complainant(s) 28.05.2018 5 D/o Filing Evidence by way of Affidavit by the Complainant(s) 02.07.2018 6 D/o Filing Evidence by way of Affidavit by the OP-1 22.07.2020 7 D/o filing Written Synopsis by the Complainant(s) 12.04.2021 8 D/o filing Written Synopsis by the OPs 13.09.2022 ......................J RAM SURAT RAM MAURYA PRESIDING MEMBER ...................... DR. INDER JIT SINGH MEMBER