National Consumer Disputes Redressal
Amlan Ghose & Anr. vs Brahma City Private Limited (Earlier ... on 23 November, 2022
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 308 OF 2018 1. AMLAN GHOSE & ANR. ...........Complainant(s) Versus 1. BRAHMA CITY PRIVATE LIMITED (EARLIER KNOWN AS: KRRISH BUILDTECH PVT. LTD. & LATER AS: BRAHMA KRRISH BUILDTECH PVT. LTD.) ...........Opp.Party(s)
BEFORE: HON'BLE DR. INDER JIT SINGH,PRESIDING MEMBER
For the Complainant : Mr. Rudra Dutta, Advocate
Mr. P. Sinha, Advocate
Mr./Ms. Kashvi Dutta, Advocate For the Opp.Party : Mr. Sanyat Lodha, Advocate
Ms. Seema Sundd, Advocate
Mr. Abhishek S., Advocate
Dated : 23 Nov 2022 ORDER
DR.INDER JIT SINGH, MEMBER
1. The present Consumer Complaint (CC) has been filed by the Complainants against the opposite party as detailed above, inter aila praying for directing the opposite party:-
(i) to refund of the entire amount of Rs.1,67,77,712/- paid by the complainants along with interest @24% p.a. from the date of their respective deposits till the date of realization,
(ii) to pay Rs.20,00.000/- as compensation on account of physical harassment, mental agony, inconvenience, damages on account of deficiency of service, unfair trade practice, loss of expectation and enjoyment of the said plot,
(iii) to pay Rs.2,50,0000/- towards cost of litigation.
2. Notice was issued to the opposite party on 13.04.2018 giving them 30 days' time to file their written statement.
3. It is averred/stated in the complaint that:-
i) That the complainants vide application for allotment dated 27.09.2012 applied for allotment of the residential Plot No. Y-62, admeasuring 411.720 sq.yds. in the township of OP namely, "Brahma City" situated at Sectors 60, 61, 62, 63 and 65, Gurgaon. As per an extract of the plans at the time when the complainants applied for allotment with the OP, the said Plot was a corner plot, facing a park at the cross section of two roads each of 12 mts. Width and North-West facing. As per clause 13 of the terms and conditions forming a part of the said Application for allotment, it is provided that the OP shall endeavour to offer possession within 36 months from the date of execution of Plot Buyer's Agreement. On 11.10.2012, on receipt of earnest money, the OP informed the complainants regarding the provisional allotment of Plot Y-62. Plot Buyers Agreement was entered into between the parties on 13.08.2013 for allotment of the said plot for a total consideration of Rs.3,02,61,640/-. The proposed date of possession was 13.08.2016. The complainants have paid Rs.1,67,77,712/- till 12.08.2013.
ii) The complainants came to know that one M/s Fondant Propbuild Pvt. Ltd. was likely to challenge the layout plan and the licence granted in favour of the OP, which information was substantiated upon the Writ Petition (being C.W.P. No. 27665 of 2013) being filed in the High Court of Punjab and Haryana by M/s Fondant Propbuild Pvt. Ltd. and Ors. Against the State of Haryana and Ors., including the OP. In view of the said Writ, the future of the said Project becoming uncertain. The complainants withheld future payments subject to the judgment of the court in the said Writ Petition, whereafter the issue of allotment of a plot equivalent in all respect/aspects to the said plot viz Y-62 remains unresolved. Vide judgment dated 05.02.2015 by the Hon'ble High Court of Punjab & Haryana at Chandigarh, the Licence No. 64 of 2010 dated 21.08.2010 granted in favour of OP was quashed and the matter was remanded back to the DTCP for reconsidering the OP's application afresh strictly in accordance with the provisions of the Haryana Development and Regulation of Urban Areas Act, 1975 and the Haryana Development and Regulation of Urban Areas Rules, 1976. Vide letter dated 16.04.2015, the OP informed the complainants about the judgement dated 05.02.2015 and requested for some more time to take necessary actions. Alongwith the said letter, the OP also enclosed an undated letter accepting the OP's ignorance regarding addition of a piece of land of 2.29 acres being in ownership of another company in the land schedule of the said project, which the DTCP had de-licensed and excluded the above mentioned piece of land. On perusal of the said letter, it is clear that the OP had misrepresented facts earlier and was trying to underplay or hide the illegality or error that had been committed by the OP with malafide intentions.
iii) Vide letter dated 15.05.2015, the OP informed the complainants that the DTCP had reviewed the OP's application for license afresh and also that the DTCP had opined that the said Licence 64/2010 deserves to be restored for 141.781 acres from 21.08.2010. The area of the said Project got reduced pursuant to the judgment dated 05.02.2015 and vide letter dated 15.01.2016, pursuant to the order dated 02.12.2015 of the DTCP, the OP informed the complainants that DTCP had invited objections/suggestions for the revised layout cum demarcation plan of the said Project.
iv) The complainants vide letter dated 16.02.2016, pointed out that delivery of the plot was overdue and that facts had been misrepresented by the OP. It was also stated by the complainants that they had applied for and been allotted one said plot, which had specific characteristics, but were now being offered plot which is not at all equivalent to and/or similar in characteristics to the said Plot. Vide letter dated 14.03.2016, the complainants informed the OP of their intention to seek legal recourse in the event of the OP not responding to the Complainants' letter within two weeks.
v) Vide email dated 28.07.2016, the OP's authorised representative -Mr. Harsh Vardhan Chatterjee proposed 5 locations within the said Project for re-location of the complainants from their previously allotted Plot No. Y-62. In reply to the said email, the complainants indicated that they can accept the re-location from Y-62 to J-149 in the said Project on the condition that there would be no change in the commercial terms other than proportionate variation in total Basic Selling Price. Vide letter dated 04.08.2016, the complainants informed the DTCP that the complainants were willing to agree on provisional allotment of Plot No. J-149 in lieu of Plot No. Y-62 but were unable to do it as the OP indicated that they intended to levy PLC charges in addition to the terms agreed in the said Plot Buyer's Agreement. Vide letter dated 02.11.2016 passed by DTC), the objections raised by the Complainants with regard to change in plot from Y-62 to K-32 were over ruled even though it was recorded in the office comments that the new plot was neither facing park nor was it a corner plot as was the earlier plot/ location and that there was a minor change in the size of the new plot.
vi. The opposite party rather than making amends for lapses in fulfilment of the said Plot Buyers Agreement, the OP has tried to use the revised layout cum Demarcation Plan of the said project as a means to unfairly extort money from the complainants by levying the PLC that was waived/not charged in the said Plot Buyers Agreement and the OP did not give response to the complainants' communications. Vide notice dated 24.07.2017, the complainants raised a demand for refund of Rs.1,37,77,712/- with interest due thereon as well as compensation for failure to deliver possession within the stipulated time period. In its amended complaint, the complainants have contended that demand for refund was inadvertently mentioned as Rs.1,37,77,712/- instead of Rs.1,67,77,712/-. It is only on or about 05.08.2018, that the complainant No.1 while going through his bank account statements/cheque-book record slips, realised that the said payment of Rs.30,00,000/- had also been made to the Opposite Party. In response to the said notice, the OP sent rejoinder dated 03.10.2017 denied the statements made in the notice. Hence, the complainants approached this Commission. CC/1594/2016 is also pending before this Commission in the case of Uday Raj Aggarwal Vs. M/s Brahma City Pvt. Ltd.
4. OP in their written statement/reply stated that :-
It is contended by the OP that the delay in offering the possession was beyond the control of the Opposite Party. Vide letter dated 15.05.2015, the OP informed the complainants that in compliance of directives dated 05.02.2015 issued by the Hon'ble Punjab and Haryana High Court, DTCP vide its order dated 08.05.2015 opined that License No. 64 of 2010 for 141.781 acres deserved to be restored from original date i.e. 21.08.2010 and vide letter dated 16.01.2016 and email dated 18.12.2015 the OP informed the complainants that the office of DTCP has reviewed the application for licence afresh and vide their order dated 02.2.2015, restored the Licence No. 64 for an area admeasuring 141.66875 acres as per revised land schedule.
It is contended that the OP has made the best possible endeavour and all efforts at every stage to handover the possession on time but was delayed due to the order of the Hon'ble Punjab & Haryana High court. It is also contended by the OP that to allay any sort of apprehension in the minds of the allottees, compensation clause in the Agreement was provided to adequately compensate the allottees subject to the terms and conditions. As per clause 12(d) of the Agreement it is stipulated that in case of delay in handing over the possession beyond 36 months from the date of Agreement and subject to other terms of the Agreement, the complainants can be compensated @Rs.300/- per sq.mtr.
It is further contended by the OP that vide letter dated 15.01.2016, the OP invited objections/suggestion on revised Layout cum Demarcation Plan, post restoration of quashed license 64 of 2010. The OP allowed the complainants to resolve issues/queries by inviting them to the corporate office and also providing opportunity to file the same in the office of the District Town Planner, Sector 14, Gurgaon.
It is also contended by the OP that vide letter dated 14.06.2013 and statement of delayed interest, the complainants were informed of the default in timely payment on multiple occasions. However, as a gesture of goodwill, the OP had waived off the delayed interest vide letter dated 12.08.2013.
The other contents purported in the complaint were denied by the OP.
5. Evidence by way of affidavit was filed by the complainants and affidavit of evidence was filed by the OP broadly on the lines of averments made in the complaint.
6. Heard counsels of both sides. The details of the flat allotted to the Complainants/other relevant details of the case are given in the Table below:-
Sr No
Particulars
1
Project Name/Location etc.
"Brahma City", Sectors 60,61,62,63 and 65 , Gurgaon
2
Plot no.
Y-62
3
Size
411.720 sq.yds.
4
Date of application for Allotment
29.09.2012
5
Date of signing Buyers' Agreement
13.08.2013
6
Committed date of possession as per Buyers' Agreement (with Grace period, if any)
13.08.2016
7
Total Consideration
Rs.3,02,61,640/-
8
Amount Paid
Rs.1,67,77,712/- (as per amended complaint)
9
D/o Filing CC in NCDRC
31.01.2018
10
D/o Issue of Notice to OP
13.11.2018
11
D/o Filing Reply/Written Statement by OP
18.06.2018
12
D/o filing Rejoinder by the Complainants
29.07.2020
13
D/o Filing Evidence by way of Affidavit by the Complainants
29.07.2020
14
D/o Filing Evidence by way of Affidavit by the OP
03.02.2021
15
D/o filing Written Synopsis by the Complainants
25.08.2020
16
D/o filing Written Synopsis by the OP
7. The main reason for complainants seeking refund is on account of change of the plot originally allotted to them by the Opposite Party (Y-62) to a new Plot (K-32) which is differently located, is of a smaller size and not having preferential location features like corner plot etc. and delay in handing over of the possession from committed date of delivery as per agreement dated 13.08.2013, i.e. 13.08.2016 (36 months). It was stated that the originally approved lay out plan was changed. License of OP remained suspended for some time and was restored later on as per amended lay out plan under which the complainants have been given a changed plot viz K-32. It was contended by the OP that the change is approved by DTCP. However, it was pointed out that it is not DTCP who has changed the location and number of plot of the complainants from the original plot No. Y-62 to K-32. The revised plan proposed by the OP under which complainants have been given new plot K-32 instead of earlier Y-62 has been approved by DTCP vide order dated 02.11.2016. This was proceeded by in-principle approval of revised layout plan dated 02.12.2015 for inviting objections from the allottees. It is stated in the approval dated 02.11.2016 conveyed by DTCP to OP that objections received on the revised layout plan have been examined and objections have been decided by the Director General, Town and Country Planning vide order dated 02.11.2016. A perusal of the relevant portions of the order dated 02.11.2016 of Director General, Town and Country Planning pertaining to the case of complainants show that plot No. Y-62 for an area measuring 411.72 sq.yards was allotted in the earlier approved layout plan which has been changed to K-32 for an area measuring 379.08 sq.yards in the revised layout plan by the colonizer (OP). It is seen/observed in this order of D.G. that earlier plot was on 12m and the new proposed plot is also on 12m road as shown in the plan. According to this observation there is minor change in the size of the plot (as stated above).
"It is further stated that this plot was neither facing park nor corner plot as per earlier location. The new plot allotted does not have inferior location in comparison to earlier plot in the old layout plan".
8. From the above, it is clear that the plot now offered/allotted to the complainants is not of the same size, not at the same location and does not have same preferential location features as that of the earlier allotted plot. Moreover, there is inordinate delay on the part of the OP to deliver the plot to the complainants in accordance with the committed date in the agreement. In view of this, the complainants have a legitimate right to seek refund of the entire amount paid by them to the OP without any cancellation charges/penalties/deductions etc.
9. The contention of OP that this Commission lacks pecuniary jurisdiction is not valid. Under Section 21 of the Act, Commission has the jurisdiction where value of goods and services and compensation, if any, claimed exceeds Rs. one crore. The objection that the Complaint is barred by limitation is also not accepted. The OP has failed to deliver the possession of the unit to the complainants within the stipulated time and therefore, the cause of action is continuing. The contention that complainants are not a consumer as they purchased the unit for investment purpose is also rejected as no such evidence has been adduced by the OP in this regard. The plea of OP that delay was due to force majeure circumstances is not valid as even after a gap about six years from the committed date given in the Agreement, possession of flat has not been given. There is no documentary evidence to support the contention of the Opposite Party that the reasons pleaded by the OP, can be construed as 'Force Majeure. The contention of the OP that the parties are bound by the agreement is also not acceptable. Hon'ble Supreme Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raglivan II (2019) CPJ 34 (SC) decided on 02.04.2019 held that "a term of a contract will not be final and binding if it is shown that the flat purchasers had no option to sign on the dotted line, on a contract framed by the builder ......... the incorporation of one sided clause in an agreement constitute an unfair trade practice as per Section 2 (r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling flats by the builder ........., the appellant-builder cannot seek to bind the respondent with such one sided contractual terms."
10. In the instant case, there is an inordinate delay in handing over the possession of plot by the OP. The complainants cannot be made to wait for an indefinite time and suffer financially. Hence, the complainants in the present circumstances have a legitimate right to claim refund alongwith fair delay compensation/interest from the OP. The plea of OP for entitlement of compensation to the complainants in accordance with provisions of Plot Buyer's Agreement is not valid. Further, OP has failed to give possession of the plot as originally promised and alternate offered plot does not have certain preferential features, and is also of smaller size.
11. 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) OP is directed to refund the entire amount of Rs.1,67,77,712/-(Rupees one crore sixty seven lakh seventy seven thousand seven hundred and twelve only) paid by the complainants to OP alongwith delay compensation in the form of simple interest @ 9% p.a. within two months of date of this order.
(ii) The OP shall pay a sum of Rs.25,000/- as cost of litigation to the complainants.
(iii) The payment in terms of this order shall be paid within three months from today.
(iv) In case the complainants has 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 complainants.The complainants would submit the requisite documents from the concerned bank(s)/financial institution(s) to the OP four weeks from receipt of this order to enable them to issue refund cheques/drafts accordingly.
12. The pending IAs, if any, also stand disposed off.
...................... DR. INDER JIT SINGH PRESIDING MEMBER