National Consumer Disputes Redressal
Deepak Goyal & Anr. vs M/S. North Star Apartments Pvt. Ltd. & 4 ... on 28 September, 2021
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 871 OF 2017 1. DEEPAK GOYAL & ANR. 1213, SECTOR-4, URBAN ESTATE. GURGAON HARYANA ...........Complainant(s) Versus 1. M/S. NORTH STAR APARTMENTS PVT. LTD. & 4 ORS. B-4/43, 2ND FLOOR, SAFDURJUNG ENCLAVE. NEW DELHI 2. S.S. GROUP PVT. LTD. 77, S.S. HOUSE, SECTOR-44 GURGAON HARYANA-122003 3. ASHOK SINGH JAUNAPURIA, DIRECTOR. 77, S.S. HOUSE, SECTOR-44. GURGAON HARYANA-122003 4. DAYAWATI 77, S.S. HOUSE, SECTOR-44. GURGAON HARYANA-122003 5. SUSHIL KUMAR JAUNPURIA 77, S.S. HOUSE, SECTOR-44. GURGAON HARYANA-122003 ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE RAM SURAT RAM MAURYA,PRESIDING MEMBER
For the Complainant : Mr. Sushil Kaushik, Advocate For the Opp.Party : Mr. Hemant Sharma, Advocate
Mr. Sanjay Kumar Shandilya, Advocate
Dated : 28 Sep 2021 ORDER
1. Heard Mr. Sushil Kaushik, Advocate, for the complainants and Mr. Sanjay Kumar Shandilya, assisted by Mr. Hemant Sharma, Advocate, for the opposite parties, through video conferencing.
2. Deepak Goyal and Smt. Pinky Goyal (the complainants) filed this complaint for directing the opposite parties (hereinafter referred to as the builder) (i) to refund an amount of Rs.66,58,319/-along with interest @ 18 % p.a. from the date of each payment till the date of refund, (ii) to pay Income Tax exemption of Rs.4,02,967/-, (iii) to pay Rs.10 lakhs as compensation for mental agony and physical harassment, (iv) to pay cost of the litigation and (v) any other relief as may be deem fit and proper, in the circumstances of the case.
3. The facts as stated in the complaint and emerged from the documents are that the builder was a company, engaged in business of development and construction of multi-story residential and commercial buildings and selling its unit to the prospective buyers. The builder launched a housing project in the name of "The Coral Wood" in Sector-84, Gurgaon, Haryana, in 2012 and made various lucrative advertisements. In order to secure early booking, they also advertised that the price would be revised soon. The complainants booked a Type-B (3 B/R) flat on 03.06.2012 and paid booking amount of Rs.7,92,000/- on 08.06.2012. They were allotted Flat No. 1001, on 10th floor, Type-B, Tower-A, admeasuring super area of 1890 sq. ft. and sale price Rs.83,93,840/-. The payment mode was "Construction Linked Payment Plan", under which, 10% of the sale price has to be paid at the time of booking, 10% within 45 days, 10% within 90 days of the booking, 65% of the sale price had to be paid in 12 instalments, at the different level of the construction and 5% at the time offer of possession. Flat Buyer's Agreement (for short FBA) was executed on 20.07.2012. Thereafter, the complainants deposited Rs.8,65,180/- on 17.07.2012, Rs.8,29,242/- on 06.09.2012, Rs.8,29,242/- on 15.02.2013, Rs.4,10,478/- on 27.09.2013, Rs.4,14,683/- on 03.12.2013, Rs.4,14,750/- on 31.01.2014 + (Rs. 4147/- on 30.09.2013, Rs.4189/- on 03.12.2013 and Rs. 4190/- on 31.01.2014, were paid as TDS to the Government), Rs. 1,00,000/- on 21.07.2014, Rs. 3,02,156/- on 21.07.2014 + (Rs. 4062/- on 13.08.2015, was paid as TDS to the Government), Rs.4,16,272/- on 11.09.2015, Rs.4,12,600/- on 24.02.2016, Rs.4,20,491/- on 10.05.2016 + (Rs. 4248/- on 11.05.2016, was paid as TDS to the Government), Rs. 4,17,829/- on 04.08.2016 + (Rs. 4175/- on 24.02.2016, Rs.4163/- on 29.02.2016 and Rs.4222/- on 04.08.2016, were paid as TDS to the Government), (i.e. total Rs.66,58,319/-) on the demand notices issued to them, at the various stages of the construction. Under Clause-8 (a) of the FBA, the promised period for handing over possession was 36 months with grace period of 90 days from the date of execution of the FBA, subject to exception as given under clauses 8 (b), 38, delay in approval of sanctioned plan and issue of Occupation Certificate. Promised period for handing over possession expired in November, 2015. Brick works completion instalment (11th instalment) was realized on 10.05.2016 and Internal plumbing etc. completion instalment (12th instalment) was realized on 04.08.2016, but when the complainants visited the site in August, 2016, they did not find any brick work or plumbing works etc. in the apartment. The complainants found that the builder was realizing instalments of different level of construction, without any actual construction of that stage and thus committing unfair trade practice. In January, 2017, the complainants again visited the site and found that no construction work was going on. The complainants had taken loan for deposit of the instalments and were paying its EMI. The complainants, through email dated 02.11.2016, requested to cancel their allotment, refund the money realized from them and deposit it, in their bank loan account. Reminders were given on 23.11.2016 and 01.12.2016 on email. The complainants gave legal notice through registered post on 02.11.2016, for refund of their deposit. The complainants gave a reminder legal notice through registered post on 09.01.2017, for refund of their deposit. Then a meeting was arranged in which the builder admitted delay in construction and assured that they would complete construction till October, 2017. The complainants found that no construction work was started on the site even thereafter as such they decided not to wait for unlimited period. They filed this complaint on 18.03.2017.
4. The builder filed written reply on 31.08.2017 and contested the case. In the written reply all the material facts were not denied. It has been stated that the complainants booked the flat, through Sales Organiser namely M/s. Ayuni Associates on 03.06.2012. Along with allotment letter, Payment Plan, Terms and Conditions and Flat Buyer's Agreement were supplied. After reading and understanding the terms and conditions, the FBA was signed on 20.07.2012. It is denied that the FBA contained one sided liability or prejudicial to anyone. The FBA was a standard proforma and being used for all the allottees. The builder also invested huge amount as such the builder was all the time interested in completion of the project timely and there was no deficiency in service. The complainants did not pay the full amount of the instalments timely throughout. The complainants stopped payment after 06.08.2016, in spite of repeated service of the demand notices. Total dues against the complainants was Rs.13,78,045/- up to 13.07.2017. It has been denied that the complainants ever visited the site in 2016-2017 and found the construction was fully stopped. All plaster work is complete, balcony railings have been fixed, Aluminium frame and external doors and windows have been fixed. Ceiling and roof work is complete. Flooring tiles, plumbing work and painting works are complete. Subsequently they informed that after completing construction in all respect, they applied for issue of Occupation Certificate, which was issued on 17.10.2018. Thereafter possession notice was given to the complainants on 27.11.2018 and final statement of account of the complainants shows that total outstanding dues against them was of Rs. 27,15,633/-. It has been stated that the complainants had not booked the flat for their personal use rather they had invested in real estate in the hope of better return. As from 2017, the market in real estate has gone down as such they wants to refund of their money.
5. The complainants filed their Rejoinder Reply on 27.08.2018, in which material facts contrary to the complaint have been denied. The complainants filed copy of allotment letter dated 08.06.2012, copy of Flat Buyer's Agreement and Tripartite Agreement as Annexure-A, Receipts and Statement of Account as Annexure-B, Photographs of the construction as Annexure-C and Emails and Legal notices as Annexure-D. The complainants filed Affidavit of Evidence and Affidavit of Admission/Denial of Deepak Goyal on 27.08.2018.
6. The builder filed Photographs of the construction as Annexure-OP-2, Application for allotment filed by the complainant as Annexure-OP-3, Allotment letter dated 08.06.2012, Payment Plan and Term and Condition as Annexure-OP-4, Copy of the ledger relating to the account of the complainants as Annexure-OP-5, Copy of the ledger relating to the account of the complainants as on 04.01.2019 as Annexure-OP-6, Demand letters and reminders issued to the complainants, time to time as Annexure-OP-7, Customer-wise dues of the Coralwood as Annexure-OP-8, Occupation Certificate dated 17.10.2018 as Annexure-OP-9 and Possession notice issued to the complainants dated 27.11.2018 as Annexure-OP-10. The builder filed Affidavit of Evidence of Sunil Shekhawat.
7. I have considered the arguments of the counsel for the parties. Payment plan was a "Construction Link Payment Plan" (page-37 of the complaint), which was supplied along with allotment letter dated 08.06.2012 and FBA dated 20.06.2012. Under which, 10% of the sale price has to be paid at the time of booking, 10% within 45 days, 10% within 90 days, which has been quantified as Rs. 8,04,384/- each (total 24,13,152/-). The complainants paid total Rs.24,86,422/- within 90 days of the booking. The complainants, thereafter, paid according to the construction linked demand notices as issued by the builder up to 04.08.2016. Allegation of the builder that the complainants had not paid full amount of the instalment, timely, throughout does not appear to be correct. Chart relating to the dues as given in paragraph-18 of written reply does not match with the Payment Plan as supplied along with allotment letter. As such it is not proved that the complainants were defaulter till 04.08.2016.
8. The complainants stopped payment after 04.08.2016 on the allegation that Brick works completion instalment (11th instalment) was realized on 10.05.2016 and Internal plumbing etc. completion instalment (12th instalment) was realized on 04.08.2016, but when they visited the site in August, 2016, they did not find any brick work or plumbing works etc. in the apartment. According to the complainants, they found that the builder was realizing instalment of different level of construction, without any construction of that stage and thus committing unfair trade practice. They have filed photographs to prove this fact. The complainants had taken loan for deposit of the instalments and were paying its EMI. Therefore, the complainants, through legal notice and email dated 02.11.2016, requested to cancel their allotment, refund the money realized from them and deposit it, in their bank loan account. Thus unfair trade practice on the part of the builder was proved.
9. Under Clause-8 (a) of the FBA, the promised period for offer of possession was 36 months with grace period of 90 days from the date of execution of the FBA, subject to exception as given under clauses 8 (b), 38, delay in approval of sanctioned plan and issue of Occupation Certificate. Promised period for offer of possession expired in November, 2015. The builder has not taken any plea that offer of possession was delayed either for delay in sanction of layout plan or in issue of Occupancy Certificate. Possession notice was issued on 27.11.2018, with delay of three years. 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.
O R D E R
In view of aforementioned discussions the complaint is allowed with cost of Rs. one lakh. The builder is directed to refund the amount of Rs.66,58,319/-along with interest @ 9 % p.a. from the date of each deposit till the date of refund, in six equal, one monthly instalments. First instalment shall be paid till 15.10.2021 and thereafter, other instalment shall be paid one month thereafter regularly. If the builder commits any default in payment of any instalment, the complainants will be entitled to realize whole amount in execution of the order.
......................J RAM SURAT RAM MAURYA PRESIDING MEMBER