National Consumer Disputes Redressal
Raju Hans & Anr. vs M/S. Vatika Limited @ Vatika Triangle on 15 September, 2023
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 2357 OF 2017 1. RAJU HANS & ANR. S/o SH.KK SHARMA,
R/O 147, MUNIRKA VIHAR, NEW DELHI ...........Complainant(s) Versus 1. M/S. VATIKA LIMITED @ VATIKA TRIANGLE THROUGH ITS DIRECTORS,
4TH FLOOR, SUSHNAT LOK-I,
BLOCK A, MEHRAULI GURGAON ROAD, GURGAON-122002 ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE RAM SURAT RAM MAURYA,PRESIDING MEMBER HON'BLE BHARATKUMAR PANDYA,MEMBER
FOR THE COMPLAINANT : MR. BHUPENDRA PRATAP SINGH, ADVOCATE
MR. RAJU HANS, IN PERSON FOR THE OPP. PARTY : MR. S.K. SAHNI, ADVOCATE
Dated : 15 September 2023 ORDER
J U D G E M E N T
PER MR. JUSTICE RAM SURAT RAM (MAURYA), PRESIDING MEMBER
1. Heard Mr. Bhupendra Pratap Singh, Advocate, for the complainants and Mr. S.K. Sahni, Advocate, for the opposite party.
2. Raju Hans and Ritu Hans have filed above complaint for directing the opposite party to (i) handover possession the villa booked by them after accepting Rs.1634800.06 plus government levies and taxes and declaring the demand dated 10.06.2017, in excess of it as illegal; (ii) pay Rs.4110444.39 as delay compensation; (iii) pay Rs.15/- lacs, as compensation for mental agony and harassment; (iv) pay Rs.100000/-, as litigation cost; (v) pay pendente lite and future interest @18% per annum on above amounts; and (vi) any other relief which is deemed fit and proper in the facts and circumstances of the case.
3. 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 project and selling its unit to the prospective buyers. The opposite party launched a project of villas, in the name of "Bellevue Residences" now as "Signature Villas 2" at newly carved out Sectors-82, 82-A, 83, 84 & 85 of the Gurgaon Manesar Urban Complex, 2021, Gurgaon, in the year 2009 and made wide publicity of its facilities and amenities. The complainants inquired about the details of the project, including payment plan at the site office of the opposite party and were informed that payment plan was "subvention plan" under which 10% consideration was payable at the time of booking, 10% within 90 days of booking, 70% by home loan from the bank under "construction linked plan" and EMI was payable by the opposite party till handing over possession and balance 10% at the time of offer of possession. Total cost of a villa of 240 sq. yards and built up area 1527 sq.ft. was Rs.8620000/-. Believing upon the representation of the opposite party, the complainants booked a villa of 240 sq. yards on 23.12.2009 and deposited booking amount of Rs.500000/-. The complainants deposited total Rs.1724000/- till 23.03.2010. The opposite party allotted Villa Reference No.33/240/simplex/BR, admeasuring 240 sq. yards and executed Buyer's Agreement dated 15.03.2010. Clause-11.1 of the agreement provides three years period from the date of execution of the agreement, for completion of the construction. The opposite party, vide letter dated 20.01.2012, informed that due to fine tuning in the layout plan, re-allotment was necessitated and called upon the complainants to its office on 02.02.2012, for re-allotment of the villa. A new payment plan was attached showing Rs.2658000/- as due on re-allotment. The opposite party issued a separate letter dated 20.01.2012, demanding Rs.443000/- as buyer's contribution and Rs.68444/- as service tax (total Rs.511444/-) which was deposited on 02.02.2012. The complainants protested amended loan terms through email. Then the opposite party held a meeting with the complainant on 27.03.2012, in which, the complainant did not agree for amended loan terms as such his payment plan was converted into "construction link payment plan". The opposite party, vide re-allotment letter dated 23.02.2012, allotted Villa No. Plot No.5/240/siplex, Tower ST.82D1-8. As per demand of the opposite party, the complainants paid instalments from 14.02.2013 and deposited total Rs.6397845.41 till 09.03.2016. The opposite party issued intimation of possession letter dated 10.06.2017, demanding balance amount of Rs.5645397.01, in which, constructed area has been shown as 1965 sq.ft. On demand, the opposite party shared 'old layout', 'new layout' and calculation of increased area. The calculation as supplied by the opposite party shows that increase in construction area was 7.36 sq. mtrs., which seems due to construction of one store on first floor, which was neither in the original layout plan nor opposite party obtained consent of the complainants for its construction. The opposite party has illegally charged Rs.4010596.95 for increased in constructed area. Excess demand of Rs.5645397.01 is unfair. The opposite party is threatening to charge holding charges from 10.06.2017. This complaint was filed in July, 2017, alleging deficiency in service.
4. The opposite party filed its written reply on 28.12.2017 and contested the matter. The facts relating to the project, allotment of the villa to the complainants, execution of Buyer's Agreement in their favour and payments made by them, have not been disputed. The opposite party stated that the complainants booked the villa through a real estate broker namely M/s. Delhi NCR Realtors Pvt. Ltd. The complainants initially opted for 'Home Loan Linked Payment Plan', however, later on they requested to changed payment plan into "construction linked payment plan', which was accepted by the opposite party and the excess amount deposited by the complainants were adjusted towards subsequent instalments. As per clause 26 of the agreement, it was liability of the complainants to arrange for home loan. The complainants negotiated with India Bulls, for home loan, who demanded upfront payment of 20% to 25% and making Pre-EMI interest period for 30 months. Then the complainants requested for change of payment. The complainants did not attend the meeting scheduled on 27.03.2012. The period of three years from the date of execution of the agreement, for completion of the construction as mentioned in Clause-11.1 of the agreement was subject to force majeure reasons. After commencement of development work at the site, Ministry of Petroleum & Natural Gas, Govt. of India decided to route GAIL pipeline through the project land. Overhead High Tension Electricity line was passing through the project land. Haryana Urban Development Authority failed to construct the sector roads. Due to which, not only development of the project was hampered but also layout plan had to be changed. Change of the name of the project was only a cosmetic. After change in layout, an Addendum dated 02.02.2012 was issued to the complainants, changing their allotment as Villa No.5/240/simplex/St.82D1-8, which was accepted and signed by them. The construction work was actually started in December, 2012 and first instalment of Rs.805545.29 was demanded through letter dated 01.12.2012. The complainants paid Rs.127921/- on 18.02.2013 and balance amount was adjusted in their previous payment. The complainants deposited total Rs.6338765/- till 04.03.2016. Statement of Account as on 06.03.2016, shows Rs.1847449.54 plus other charges as balance. Due to increase of constructed area, its cost, service tax and other cess, total amount of Rs.3797947.47 was increased and total balance amount had become to Rs.5645397.01. If the complainants had any objection to the increased constructed area and its price, the opposite party is ready to refund entire amount deposited by the complainants with interest as mentioned in the agreement. The complainants delayed payment of instalments, which attracted interest of Rs.936902/-, which was waived by the opposite party. After completing construction of the villa, the opposite party issued letter dated 10.06.2017. Instead of depositing balance amount and taking possession, the complainants filed this complaint, which is liable to be dismissed. There was no deficiency in service on part of the opposite party nor any unfair trade practice was committed and the complaint is liable to be dismissed. The opposite party also raised preliminary issues relating to pecuniary jurisdiction and the complainants being an investor with speculative motive and not consumer, are raised.
5. The complainants filed Rejoinder Reply, Affidavits of Evidence of Raju Hans and Ritu Hans, Additional Affidavit of Evidence of Raju Hans through IA/4303/2022 and documentary evidence. The opposite party filed Affidavit of Evidence of Vipin Kumar Marya and documentary evidence. The complainants through IA/13535/2017 IA/18893/2017 filed Additional documentary evidence. The opposite party filed Additional Document along with the Replies to IAs. Both the parties have filed written synopsis of arguments.
6. The opposite party in paragraph-17 of written reply has stated that due to increase of constructed area, its cost, service tax and other cess, total amount of Rs.3797947.47 was increased and total balance amount had become to Rs.5645397.01. If the complainants had any objection to the increased constructed area and its price, the opposite party is ready to refund entire amount deposited by the complainants with interest as mentioned in the agreement. When the case was listed for hearing on 01.07.2019, the counsel for the complainants, in presence of Raju Hans (complainant-1) gave up the contentions raised regarding increase in the area of the villa. The counsel for the opposite party informed that the opposite party was ready to handover possession on deposit of Rs.1847449.54. The court, therefore, permitted the complainants to take possession on "as is where is basis" after deposit of Rs.1847449.54 without prejudice to the rights and contentions of the parties. The complainants filed IA/11453/2019 to clarify and or modify the order dated 01.07.2009, stating that it would be grossly unjust and unfair for the possession to be handed over on "as is where is basis". So far as giving up the contentions raised regarding increase in the area of the villa, was concerned, it was alleged that such statement was given as the complainants had expected that the complaint would be finally decided on that day. Same bench of this Commission rejected IA/11453/2019, after hearing arguments on 15.11.2019. The complainants then deposited Rs.2025523.17 on 17.12.2019, Rs.20459.83 on 26.12.2019 and Rs.29500/- on 15.01.2020. The opposite party, thereafter, handed over possession of the villa on 30.01.2020 to the complainants and executed conveyance deed on 03.02.2020, in their favour.
7. We have considered the arguments of the counsel for the parties and examined the record. The counsel for the complainants, in presence of Raju Hans (complainant-1) gave up the contentions raised regarding increase in the constructed area of the villa, before this Commission on 01.07.2019, which was recorded in the order dated 01.07.2019. The complainants, in IA/11453/2019, have stated that such statement was given as the complainants had expected that the complaint would be finally decided on that day. Thus the statement of giving up of the claim in respect of increased constructed area, has not been challenged. In view of the statement of the complainants as recorded in the order dated 01.07.2019, the complainants cannot be permitted to press this issue again. As possession was handed over on 30.01.2020 and conveyance deed was executed on 03.02.2020, issues of delay compensation claimed by the complainants and holding charges claimed by the opposite party, remain to be decided.
8. In clauses B, G and H of Company's Representation in Buyer's Agreement dated 15.03.2010, the opposite party disclosed that layout plan annexed as Annexure-1 was tentative and subject to approval of Director of Town & Country Planning, Haryana. A perusal of Conveyance deed dated 03.02.2020, shows that Licence No.113/2008 dated 01.06.2008 was granted development of residential villas, which was renewed on 15.09.2010, 02.07.2011, 09.07.2011, 15.07.2014 and 27.12.2016. Layout Plan was approved on 11.06.2014. Clause-11.1 provides that the Company based on its present plans and estimates and subject to just exceptions contemplates to complete construction of the said unit within a period of three years from the date of execution of this agreement. However, in case the Company is not able to adhere to the said time frame, it shall be entitled to reasonable extension of time for completing the construction, unless there shall be delay or there shall be failure due to reasons mentioned in Clause-12.1, 12.2, 12.3 and Clause-38 or due to failure of the Applicants to pay in time the price of the said unit along with all other charges and dues in accordance with the schedule of payments given herein Annexure-III or as per demands raised by the Company from time to time or any failure on the part of the Applicants to abide by any of the terms or conditions of this Agreement.
9. The opposite party has stated that after commencement of development work at the site, Ministry of Petroleum & Natural Gas, Govt. of India decided to route GAIL pipeline through the project land. Overhead High Tension Electricity line was passing through the project land. Haryana Urban Development Authority failed to construct the sector roads. Due to which, not only development of the project was hampered but also layout plan had to be changed. Under clause 26 of the agreement, liability to arrange finance was on the complainants. The complainants negotiated with India Bulls, for home loan, who demanded upfront payment of 20% to 25% and making Pre-EMI interest period for 30 months, then the complainants requested for change of payment plan and the opposite party accepted their request and converted payment plan as 'construction link payment plan', which was attached as Annexure-II of Addendum dated 02.02.2012. First instalment on "start of development work on site" was raised through letter dated 01.12.2012, payable up to 17.12.2012 which was deposited on 18.02.2013. As such the period for which, development work was delayed due to force majeure reasons and the period for which the complainants delayed for payment have to be extended under clause-12.1 of the agreement.
10. Clause-11.1 provides three years period from the date of execution of the agreement for completion of the construction. Under clause-12.1, the period for which sanction of layout plan or zoning plan was delayed, was liable to be extended. Layout Plan was sanctioned on 11.06.2014 but as the opposite party started construction in December, 2012 and raised demand of first instalment on 01.12.2012, which was deposited on 18.02.2013 as such the period of three year has to be counted from 17.12.2012 and due date of possession would be 17.12.2015. The opposite party offered possession vide letter dated 10.06.2017. As such there was delay in offer of possession.
11. The complainants submitted that the letter dated 10.06.2017 cannot be treated as valid offer of possession. Possession was validly offered through letter dated 07.01.2020 as such the complainants were entitled for delay compensation till 07.01.2020. The objection of the complainants in respect of letter dated 10.06.2017 are that (i) 'Occupation certificate' was obtained on 19.11.2018. Prior to it, offer of possession was not legally valid. (ii) The letter is headed as "intimation of possession". This letter further mentions that "issuance of offer of possession was subject to the pre-requisites fulfilment. Offer of possession shall be dispatched to you intimating the date of handing over possession over the unit. (iii) In fact it was a demand letter for Rs.5645397.01, which included Rs.3797949.42/- for enhanced constructed area, which was illegal. As the letter was conditional for deposit of illegal demand, as such, it cannot be held as valid offer of possession as held by Supreme Court in Utpal Trehan Vs. DLF Home Developers Limited, (2022) 10 SCC 409. (iv) Construction was delayed but the opposite party has not provided any delay compensation in this letter, for which, the complainants were entitled.
12. So far as the arguments that as the letter dated 10.06.2017, included demand of Rs.3797949.42/- for enhanced constructed area and did not adjust/provide any delay compensation as such it was illegal and cannot be treated as valid offer of possession, is concerned, the complainants have gave up their plea/objection against demand of enhanced constructed area as such this plea cannot be considered for holding letter dated 10.06.2017 as invalid offer of possession. Clause-12.1 of the agreement provides that the buyer would not be entitled to claim any compensation for the period for which, the projected is delayed for the reasons beyond the control of the opposite party. In the absence of any provision for delay compensation, letter dated 10.06.2017 cannot be held as invalid offer.
13. The counsel for the opposite party relied upon the provisions of Haryana Building Code, 2017 and argued that the buildings up to height of 15 meter in an area up to 1000 square meter have been categorised as "Low Risk Building" under Clause-5.1. Clause-4.11 requires for application for issue of "occupation certificate" under Self-certification. As such the condition as contained under Clause-4.10.1 is not applicable in respect of the present villa, which height is less than 15 meter and area is 245 sq. yards. We do not agree with this argument as Clause-4.11.4 contained similar provision as contained under Clause-4.10.1 that no person shall occupy or allow any person to occupy any new building or a part thereof for any purpose whatsoever until such building or a part thereof has been certified by the Competent Authority as having been completed and an "occupation certificate" has been issued in his favour in Forms BRS-V. However, Supreme Court in Supertech Limited Vs. Rajni Goyal, (2019) 17 SCC 681, held that for this reason, period of delay compensation would be extended till issue of "occupation certificate". Letter dated 10.06.2017 cannot be held as invalid.
14. Admittedly payment plan was "construction link payment plan" under which 10% BSP + other charges were payable 'on offer possession'. Clause-11.2 of the agreement provides the procedure for taking possession, which requires the buyers to complete all terms and conditions of the agreement including entire payment and completing documentation. As such before actual delivery of possession, the builder is entitled to raise final demand of last instalment. It is usual practice of the builders in country that after deposit of final demand, they used to finial finishing work. As such, the letter dated 10.06.2017, attached with final demand, can be treated as valid offer of possession as possession will be handed over after deposit of balance amount and completing documentation.
15. Clause-11.3 of the agreement provides for payment for 'holding charges', if the buyer has delayed taking possession. As we find that the complainants will be entitled for delay compensation till issue of 'occupation certificate' on 19.11.2018, their liability to pay holding charges will arise from 20.11.2018. Supreme Court in Civil Appeal No.1232 of 2019 R.V. Prasannakumar Vs. Mantri Castles Pvt. Ltd. (decided on 11.02.2019), Wg. Cdr. Arifur Rahman Khan Vs. DLF Southern Homes, Pvt. Ltd., (2020) 16 SCC 512 and DLF Home Developers Ltf. Vs. Capital Green Flat Buyer's Association, (2021) 5 SCC 537, held that delayed compensation is payable in the form of interest @6% per annum on the deposit of the home buyer from due date of possession till the offer of possession.
ORDER ln view of aforesaid discussions, the complaint is partly allowed. The opposite party is directed to pay delay compensation in the form of interest @6% per annum on the deposit of the complainants from 01.01.2016 till 19.11.2018, after adjusting balance amount as demanded vide letter dated 10.06.2017 and holding charges from 20.11.2018 till the date of taking possession. The opposite party will charge interest on the balance amount as demanded through letter dated 10.06.2017, @9% per annum, from 11.07.2017 till the date of payment of delay compensation. Aforesaid direction will be complied with within two months from the date of this judgment.
..................................................J RAM SURAT RAM MAURYA PRESIDING MEMBER ............................................. BHARATKUMAR PANDYA MEMBER