State Consumer Disputes Redressal Commission
Usha Kapoor And Anr. vs Hero Realty Pvt. Ltd. And Others on 4 July, 2024
Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
Consumer Complaint No.18 of 2022
Date of institution : 21.02.2022
Reserved on : 29.05.2024
Date of Decision : 04.07.2024
1. Usha Kapoor wife of Krishan Lal Kapoor
2. Krishan Lal Kapoor son of Hari Chand Kapoor
Both are R/o Flat No.203, F Tower, Sushma Grande,
Chandigarh Ambala Highway, Zirakpur-140603.
....Complainants
Versus
1. M/s Hero Realty Pvt. Ltd. (Erstwhile Hero Realty Ltd.) E-2, Qutub
Hotel Complex, Shaheed Jeet Singh Marg, New Delhi-110016,
through its Authorized Signatory/Officer.
Email : [email protected]
2. Hero Homes Mohali, Phase-1, Sector 88, SAS Nagar, Mohali,
Punjab-160055. Email : [email protected]
.....Opposite Parties.
Consumer Complaint under Section 47 of
the Consumer Protection Act, 2019.
Quorum:-
Mr. Harinderpal Singh Mahal, Presiding Judicial Member
Mrs. Kiran Sibal, Member Present:
For the complainants : Sh.Naveen Sheokand, Advocate For the opposite parties : Sh.Sanjeev Sharma, Advocate HARINDERPAL SINGH MAHAL, PRESIDING JUDICIAL MEMBER The complainants - Usha Kapoor & Anr. have filed their complaint under Section 47 of the Consumer Protection Act, 2019, (in short "C.P. Act") for the indulgence of this Commission for seeking following directions to the opposite parties:-
(i) to give possession of apartment No.T-04/803 on 8th Floor with completion of all amenities as mentioned in the brochure.Consumer Complaint No.18 of 2022 2
(ii) to pay compensation of Rs.5,00,000/- on account of causing financial risk, hardship, mental agony, harassment, emotional disturbance caused to the complainant due to the actions/omissions;
(iii) to pay Rs.70,000/- as litigation expenses; and
(iv) any other relief which this Commission may deem fit and proper.
2. Brief facts culminating to the institution of the present complaint are that complainants applied for allotment of 2BHK flat No.T5/604 in Phase-1 in Hero Project, Mohali and paid the down payment of Rs.2,50,000/-, vide cheque No.955914 dated 21.01.2016. At the time of booking of apartment, the price of the flat was fixed as Rs.3400/- per sq.ft. and afterwards the complainants visited their office and they were informed that the flat booked by them was sold to some other person. On the protest of the complainants, the opposite parties given him of some other choice and assured them that pre-launch benefit of Rs.250/- per sq.ft. will be given to him after booking some other apartment. No Builder Buyer Agreement was executed despite repeated requests of the complainants. The allotment letter was issued by the opposite parties on 28.07.2017, vide which residential unit No.T-04/803 on 8th Floor at Tower -4 was allotted to the complainants. On the demand of the opposite parties the complainants paid the payments as per the details given below:
Rs.2,50,000/- on dated 21.01.2016 Rs.2,24,008/- on dated 16.08.2016 Rs.9,48,017/- on dated 30.09.2016 Rs.30,00,000/- on dated 28.11.2020 Consumer Complaint No.18 of 2022 3 Rs.5,00,000/- on dated 27.01.2021 Rs.2,00,000/- on dated 27.01.2021 Rs.16,200/- on dated 29.09.2021 Rs.3,27,468/- on dated 29.09.2021 Rs.50,926/- on 07.10.2021
3. In this manner, the complainants paid total sum of Rs.55,16,619/- to the opposite parties. An email dated 13.01.2021 was sent by the opposite parties offering the possession and in answering to that the complainants sent a letter asking for No Due Certificate and also for execution of the agreement. Another reminder was sent through mail dated 07.08.2021 with the following queries:
1. Gross Price to be corrected.
2. Arithmetic error in the computation of 4% discount to be corrected.
3. Full benefit of input credit to be extended instead of 1/3rd use allowed by you.
4. Compensation for delay in construction beyond 36 months to be included.
4. The complainants are used to make the payment with effect from January, 2016, Construction of Phase-1 project as per layout plan in an advertised brochure, issued by the opposite parties. The possession letter was issued by the opposite parties for incomplete flat so the complainants are entitled for compensation for delay in completion w.e.f. July 2019. The money was deposited by the complainants as per the demand raised by the opposite parties from time to time. By not releasing the possession, the opposite parties have committed deficiency in service and also adopted unfair trade practice by misutilizing the hardened money of the complainants. Consumer Complaint No.18 of 2022 4 False promises and assurances were given to the complainants in order to cheat them and in order to extract the money. In this way, the complainants have been illegally harassed by the opposite parties. The cause of action arose to the complainants when the opposite parties failed to deliver the possession and failed to complete the flat.
5. Upon notice, opposite parties appeared and filed their written statement taking preliminary objections that opposite party No.1 has undertaken the construction and development of a Residential Group Housing Site No.1, Sector 88, SAS Nagar, Mohali and opposite party No.2 is the same entity. Further, submitted that on 29.08.2016, the complainants submitted a formal application form for allotment through DNA Realtors, property consultant, and he opted to book the apartment under the Construction Link Payment Plan. He admitted that the initial payment of Rs.2,50,000/- was received from the complainants on 29.08.2016. Again on 08.09.2016, demand letter was issued by the opposite parties for payment of Rs.25,920/- and Rs.910/- Further, vide receipt dated 07.10.2016, the opposite parties acknowledged the payment of Rs.9,48,017/-. Vide demand letter cum service invoice dated 14.12.2016, the opposite parties raised a demand for payment of Rs.2,747/- on the complainants. Vide reminder letter -1 dated 03.02.2017, the opposite parties again requested the complainants to expedite the payment of outstanding dues in the sum of Rs.2,793/-. Vide allotment letter dated 28.07.2017, the opposite parties informed the complainants about the allotment of said property and on the same date 2 sets of agreements for sale also dated 28.07.2017 were dispatched for the project site office for Consumer Complaint No.18 of 2022 5 personal delivery to the residence of the complainants. The complainants initially opted for PLP payment plan but due to improved availability of funds with the complainants, they decided to opt for the CLP payment plan. Due to COVID pandemic, real estate business was adversely affected and it becomes extremely difficult for the builder to complete the project in time as per circular. Learned Maharashtra Real Estate Regulatory Authority issued a circular dated 18.05.2020, whereby it has interalia directed that Force Majeure period will be treated as a moratorium period for the purpose of calculating interest. It is further submitted that at the first opportunity, opposite parties applied for Occupation Certificate to the appropriate authority by an application dated 08.07.2020. Vide circular dated 28.10.2020, the Learned Authority declared COVID 19 as Force Majeure. On 26.11.2020, the opposite parties sent a Final Reminder to the complainants by enclosing therewith the Demand-cum-Service Invoice as well as Cancellation Calculation, giving them a final opportunity to clear their dues in 30 days. On 12.10.2021, the Occupation Certificate was received by the opposite parties. The opposite parties, vide demand letter dated 13.01.2021 raised a demand of Rs.41,46,749/-. Vide letter dated 13.01.2021, the opposite parties offered the possession to the complainants. The complainants, vide email dated 14.01.2021 raised the queries regarding payment made by them and on that very day, the complainants were requested to visit the site office to get the necessary clarifications. Further, vide email dated 28.07.2021, the opposite parties requested the complainants to take the possession of the apartment but the same was refused by them, Consumer Complaint No.18 of 2022 6 vide email dated 30.07.2021. The customer ledger was shared with the complainants, however, vide email dated 13.08.2021, the complainants refused to make the payment of the balance sale consideration and now vide email dated 31.08.2021 seeking refund of the deposited amount. In response to that the opposite parties asked the complainants to pay the balance sale consideration and take the physical possession but again they refused vide email dated 09.10.2021 and expressed a desire to transfer the apartment to a third party. The complainants have been a regular defaulter in payment of installments. The complainants have violated Section 19(6) of the Real Estate (Regulation and Development) Act, 2016. On merits, all the averments as averred by the complainants in their complaint were denied and prayed for dismissal of the complaint.
6. Rejoinder to the written statement was filed by the complainants, wherein the complainants denied all the submissions as taken by opposite parties in their written statement and reiterated the averments made in the complaint and prayed to allow the complaint.
7. The complainants in support of their averments filed the joint affidavit dated 16.02.2022 along with photocopies of the documents i.e. Allotment Letter dated 28.07.2017 as Ex.C-1, receipts as Ex.C-2, Letter dated 16.02.2021 as Ex.C-3, Email dated 07.08.2021 as Ex.C-4, Customer Ledger dated 25.02.2022 as Ex.C-5, Application form as Ex.C-6 and Cheque as Ex.C-7.
8. On the other hand, the opposite parties filed the affidavit of Sh.Rajan Kohli dated 27.04.2022 along with photocopies of documents i.e. Resolution dated 24.02.2022 as Annexure R-1, Consumer Complaint No.18 of 2022 7 Application for allotment of apartment dated 29.08.2016 as Annexure R-2, Receipt dated 29.08.2016 as Annexure R-3 (colly), Demand Letter cum Service Invoice dated 08.09.2016 as Annexure R-4, Demand Letter cum Service Invoice dated 08.09.2016 as Annexure R- 5, Receipt dated 07.10.2016 as Annexure R-6, Demand Letter cum Service Invoice dated 14.12.2016 as Annexure R-7(colly), Reminder Letter -1 dated 03.02.2017 as Annexure R-8(colly), Allotment Letter dated 28.07.2017 as Annexure R-9 (colly), Agreement for Sale dated 28.07.2017 as Annexure R-10 (colly), Email dated 28.07.2017 as Annexure R-11, Circular dated 19.02.2020 as Annexure R-12, Circular dated 13.05.2020 as Annexure R-13, Letter dated 18.05.2020 as Annexure R-14, Application dated 08.07.2020 as Annexure R-15, Circular dated 28.10.202 as Annexure R-16, Email dated 26.11.2020 as Annexure R-17, Occupation Certificate dated 12.01.2021 as Annexure R-18, Demand Letter dated 13.01.2021 as Annexure R-19, Offer of Possession dated 13.01.2021 as Annexure R-20(colly), Email dated 14.01.2021 as Annexure R-21 (colly), Email dated 28.07.2021 as Annexure R-22 (colly), Email dated 31.08.2021 as Annexure R-23 (colly), Email dated 09.10.2021 as Annexure R-24 (colly) and Email dated 29.12.2021 as Annexure R-25 (colly).
9. We have heard the contentions of the parties and have also gone through the complaint, written statement, evidence as well as written arguments filed by the parties. We have also given our thoughtful consideration to the same.
10. As per submissions of the complainants, initially they applied for allotment of 2BHK flat, bearing No.T5/604 in phase-1, Hero Project Consumer Complaint No.18 of 2022 8 at Mohali by paying the down payment of Rs.2,50,000/-, vide cheque No.955914 dated 21.01.2016. However, in the allotment letter dated 28.07.2017, Annexure R-9, the complainants were allotted flat bearing No.T-04/803 on 8th Floor in Tower-04 at Sector 88, SAS Nagar, Mohali. At the time of booking the price of the flat was fixed as Rs.3,400/- per sq. ft. and as per the payment plan, Ex.C-1, the total consideration amount to be payable was fixed as 52,95,200/- inclusive of Club Membership Charges of Rs.1,50,000/- and IFMS charges Rs.38,700/-. As per Ex.C-2 (colly), the following payments were made by the complainants through cheques on different dates:
Sr.No. Cheque Dated Amount
Number (Rs.)
1. 955921 16.08.2016 2,24,008/-
2. 955922 30.09.2016 9,48,017/-
3. 112859 28.11.2020 30,00,000/-
4. 112858 27.01.2021 5,00,000/-
5. 955939 27.01.2021 2,00,000/-
6. 955944 29.09.2021 16,200/-
7. 29.09.2021 3,27,468/-
8. 821330 07.10.2021 50,926/-
Total Amount 52,66,619/-
11. Instead of the above said amounts, a sum of Rs.2,50,000/- by way of cheque No.955914 dated 21.01.2016 was paid by the complainants at the time of booking, as per receipt dated 01.10.2016 attached as Annexure R-3 (colly). In this manner, the total payment paid by the complainants to the opposite parties comes to Rs.55,16,619/-. Vide, email dated 13.01.2021, Annexure R-19, the Consumer Complaint No.18 of 2022 9 opposite parties offered the possession to the complainants but the complainants rejected to receive the possession, vide letter dated 16.02.2021, Ex.C-3 by saying to issue 'No Due Certificate' and to execute the agreement.
12. The careful perusal of the prayer clause of the complaint reveals that the complainants have prayed for possession of Apartment No.T-04/803 on 8th Floor with completion of all amenities as mentioned in the brochure along with compensation and litigation expenses and nothing else. The plea of the complainants qua the possession is that they approached the opposite parties number of times and requested for the possession but no heed was given by the opposite parties to the request of the complainants to handover the possession and also to compensate them for delayed possession. This plea has been pleaded by the complainants in para 17 of their complaint and while answering to this para by the opposite parties they specifically denied the plea of harassment to the complainants and denying of the possession. The opposite parties alleged in the subsequent paras of their written statement that due to COVID -19 breakout, the Government of India announced the nationwide lockdown to control the spread of pandemic and due to this all the businesses specifically real estate business sector has been adversely affected and it became very difficult for the opposite parties to complete their promise regarding the delivery of possession on time. They also referred to the Circulars dated 19.02.2020 and 13.05.2020, Annexure R-12 & R-13, issued by the Government of India keeping in view the situation of pandemic. It is further pleaded that the condition Consumer Complaint No.18 of 2022 10 was beyond their control. The agreement dated 20.07.2017 is attached by the opposite parties, vide Annexure R-10, which is not signed by any of the parties, meaning thereby, that the agreement was not executed between the parties. However, as per the terms and conditions of the said agreement, the possession was to be delivered to the complainants within 42 months from the date of signing of the Apartment Buyers Agreement or start of construction, whichever is earlier. The opposite parties further pleaded that they offered the physical possession to the complainants, vide letter dated 13.01.2021, Annexure R-20, as per the commitment but the complainants deliberately was not taking the possession and in this way, the complainants have violated Section 19(6) of the Real Estate (Regulation and Development) Act, 2016, which prescribes that the allottee has to take the possession of the apartment when offered. All these pleas of the opposite parties in their written statement clearly shows that they admitted the case of the complainants that they are bound to give the possession and also sent the agreement to sign the same but they refused to sign the same and also refused to take the possession.
13. Now, with regard to the dispute regarding pre-launch benefit of Rs.250/- per sq.ft. as alleged by the complainants and shifting them to Construction Linked Plan from Possession Linked Payment Plan, no document has been produced by the complainants on the record to prove this fact that the opposite parties agreed to pay them pre-launch benefit of Rs.250/- per sq. ft and changed their plan from Possession Linked Payment Plan to Construction Linked Payment Plan. Therefore, Consumer Complaint No.18 of 2022 11 the contention of the complainants with regard to give them the pre- launch benefit of Rs.250/- per sq.ft. as well as shifting of the plan from one to another is hereby rejected as mere communications does not prove anything committed by the opposite parties. Accordingly, the complainants are required to pay the payment as per the Possession Linked Payment Plan.
14. Further, the dispute with regard to the delayed possession is concerned, no doubt, the flat was booked by the complainants in January, 2016, by paying Rs.2,50,000/- by way of cheque No.955914 dated 21.01.2016 but after that no agreement was executed between the parties. However, as per the terms and conditions attached with the application form, which is signed by both the parties, the possession of the flat was to be handed over within 42 months from the date of signing of Apartment Buyers Agreement or start of construction.
15. The opposite parties have nowhere mentioned when the construction was started and had only placed on record the Apartment Buyer Agreement dated 28.07.2017 which is not signed. Further, as per the version of the parties, the complainants gave the formal application for allotment on 29.08.2016 by giving the booking payment of Rs.2,50,000/- against which receipt dated 01.10.2016, Annexure R- 3 (colly) was issued to the complainants. Accordingly, the period for handing over the possession is considered to be started from 01.10.2016 i.e. when the receipt was issued to the complainants and according to that the possession was to be delivered to the complainants on or before 01.04.2020 but due to outbreak of COVID - Consumer Complaint No.18 of 2022 12 19, nationwide lockdown was imposed and all the work remain standstill. The Government of India issued circulars dated 19.02.2020 and 13.05.2020 wherein the pandemic has been considered as a case of natural calamity and invoked the Force Majeure Clause. The Circular dated 19.02.2020, Annexure R-12 is reproduced as under:
"Subject : Force Majeure Clause (FMC) Attention is invited to para 9.7.7 of the "Manual for Procurement of Goods, 2017" issued by this Department, which is reproduced as under:
A Force Majeure (FM) means extraordinary events or circumstance beyond human control such as an event described as an act of God (like a natural calamity) or events such as a war, strike, riots, crimes (but not including negligence or wrong-doing, predictable/seasonal rain and any other events specifically excluded in the clause). An FM clause in the contract frees both parties from contractual liability or obligation when prevented by such events from fulfilling their obligations under the contract. An FM clause does not excuse a party's non-performance entirely, but only suspends it for the duration of the FM. The firm has to give notice of FM as soon as it occurs and it cannot be claimed ex-post facto. There may be a FM situation affecting the purchase organization only. In such a situation, the purchase organization is to communicate with the supplier along similar lines as above for further necessary action. If the performance in whole or in part or any obligation under this contract is prevented or delayed by any reason of FM for a period exceeding 90 (Ninety) days, either party may at its option terminate the contract without any financial repercussion on either side."
2. A doubt has arisen if the disruption of the supply chains due to spread of corona virus in China or any other country will be covered in the Force Majeure Clause (FMC). In this regard, Consumer Complaint No.18 of 2022 13 it is clarified that it should be considered as a case of natural calamity and FMC may be invoked, wherever considered appropriate, following the due procedure as above."
16. In view of the above said circular, it can very well said that the COVID pandemic was a natural calamity and was is beyond the control. On the other side, the opposite parties after obtaining the Completion Certificate dated 12.01.2021, Annexure R-18 from the competent authority offered the possession to the complainants, vide letter dated 13.01.2021, Annexure R-20 but the complainants have not come forward to receive the possession. As the restrictions were imposed by the Government of India keeping in view the situation of the COVID pandemic, the opposite parties were not able to offer the possession within the specified period but that does not mean that the fault is solely on the part of the opposite parties. No doubt, the complainants have paid approximately the full sale consideration but they also did not come forward for execution of the Builder Buyer Agreement despite asking to sign the same number of times, which shows the adamant act of the complainants.
17. Sequel to the above discussions, the complaint of the complainants is partly allowed and the opposite parties are directed as under:
i) To give the physical possession of flat No.803 in Tower T-04, 8th Floor, approximate 1290 sq.ft. in Hero Homes, Mohali, Phase-1 situated at Site No.01, Sector 88, SAS Nagar (Punjab) within a period of three months after completing all the basic amenities as offered in the application form signed by the parties.Consumer Complaint No.18 of 2022 14
It is made clear that the sale consideration of the apartment be considered as per the 'Possession Linked Payment Plan' which is enclosed as Annexure C-1. The complainants are also bound to pay the balance sale consideration, if any and to sign the Builder Buyer Agreement before taking the physical possession.
The opposite parties are also directed to receive the balance sale consideration, if any, without charging any interest on the consideration amount and if there is any excess amount received by them that be adjusted or refund to the complainants without interest.
ii) to pay Rs.21,000/- as compensation on account of mental agony and harassment as well as litigation expenses.
18. The opposite parties shall comply with the above said directions within a period of three months from the receipt of the certified copy of the order.
19. This complaint could not be decided within the statutory period due to heavy pendency of court cases.
(HARINDERPAL SINGH MAHAL) PRESIDING JUDICIAL MEMBER (KIRAN SIBAL) MEMBER July 4th, 2024 parmod