National Consumer Disputes Redressal
Rakesh Jhamb vs M/S. Wave Megacity Centre Pvt. Ltd. on 3 January, 2022
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 1883 OF 2017 1. RAKESH JHAMB S/O SH BAL MUKUND JHAMB,
R/O E-10,
WINDSOR PARK APARTMENT,
VAIBHAV KHAND,
INDRAPURA GHAZIABAD-201014 UTTAR PRADESH ...........Complainant(s) Versus 1. M/S. WAVE MEGACITY CENTRE PVT. LTD. THROUGH ITS MANAGING DIRECTOR, REGD. OFFICE AT: M-4, SOUTH EXTN., PART-II, NEW DELHI-110049 ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE RAM SURAT RAM MAURYA,PRESIDING MEMBER
For the Complainant : Ms. Sumati Sharma, Advocate For the Opp.Party : Mr. Sumeer Sodhi, Advocate
Mr. Arjun Nanda, Advocate
Ms. Riddhima Juneja, Advocate
Dated : 03 Jan 2022 ORDER
1. Heard Ms. Sumati Sharma, Advocate, for the complainant and Mr. Sumeer Sodhi, Advocate, for the opposite party.
2. Aforementioned complaint has been filed for directing the opposite party, (hereinafter referred to as the builder) (i) to return the money paid by the complainant, amounting to Rs.7205512/- along with interest @18% per annum, (ii) to cancel "Allottee Arrangement Agreement" dated 26.10.2012, (iii) to pay Rs.50/- lacs as compensation for mental agony and physical harassment (iv) to pay Rs.2/- lacs as cost of the litigation and (v) any other relief which may be deemed fit and proper, in the facts of the case, be passed.
3. The facts, as stated in the complaint and emerged from the documents attached with it, are that the builder was a company, engaged in the business of development and construction of residential and commercial buildings and selling its unit to the prospective buyers. In the year 2011, the builder propagated that they had licence for development in commercial plot No. CC-001, admeasuring 618952.75 square meters, at Sector-52A & 32, NOIDA, Gautam Budh Nagar. The builder launched a project of Super Premium/Serviced Residences in the name of "Wave City Center". The complainants booked a residential flat, in this project on 30.09.2012 and deposited Rs.1497509/-. They were allotted Unit No. 1202-H (area 2066.03 sq.ft.), at 12th Floor, Tower 4, Block-2-D, Block name Trucia. Allottee Arrangement Agreement was executed on 26.10.2012. As per schedule-1 of this agreement, payment plan was "construction linked payment plan". Entire sale price had to be paid in 17 instalments at different stages of the constructions. Basic sale price was Rs.14524190.90, service tax was Rs.511629.15 and other charges was Rs.856603/-. As per clause-5.1 of the Arrangement, possession had to be delivered within 48 months with extended period of 6 months, from the date of execution of the Arrangement. As per statement of account as maintained by the builder, the complainant deposited Rs. 1497509/- on 30.09.2012, Rs.650000/- on 28.12.2012, Rs.897509/- on 05.01.2013, Rs.1446878/- on 16.03.2013, Rs.985277/- on 02.01.2014, Rs.753180/- on 30.12.2014, Rs.17385/- on 23.03.2016, Rs.975202/- on 21.03.2016 and Rs.9752/- on 25.05.2016 (Total Rs.7205513/-). The complainants took loan of Rs.11000000/- from HDFC bank, for paying instalments. But when the complainants visited the site, they found that the construction was not likely to be completed in the time schedule as given in Arrangement nor in near future, then he gave registered notice dated 23.05.2017, cancelling the Arrangement and requested to refund his money of Rs.7205513/- with interest @18% per annum. But instead of returning the amount, the builder gave a vague reply dated 01.06.2017. Then this complaint was filed on 27.06.2017.
4. The builder contested the complaint and filed its written reply on 18.09.2017, in which, material facts have not been denied. It has been stated that the complainants invested money in real estate in order to earn profit. The market in real estate has gone down then, the complainants decided to withdraw from the Arrangement and return of his money along with interest. The complainants did not disclose their other properties. The complainants are not a consumer, within the meaning of Consumer Protection Act, 1986, rather an investor and the complaint was not maintainable. Under Clause-5.1 of the Arrangement, it was provided that the builder would endeavour to complete the construction within 48 months with extended period of 6 months from the date of the Arrangement, subject to force majeure conditions and timely payment of the instalments. After aforesaid period, the builder would be liable to pay delayed charges @ Rs.7.50/- per sq. ft. per month on the area under Clause-5.5 of the Arrangement. The builder could not complete the construction within stipulated period as National Green Tribunal vide its order dated 11.01.2013, passed in Original Application No.59 of 2011, restrained the builders in NOIDA from extracting ground water. Due to paucity of water, the construction was not smoothly progressed. Interim order was challenged in Supreme Court and was ultimately vacated on 18.10.2013. From July 2013, the farmer's agitations against acquisition of the land impeded the construction work, which continued till September, 2013. There was paucity of sand supply in NOIDA during that period. The complainants were defaulter in payment of the instalments. Due to all these reasons, the construction was delayed. There was no deficiency in service on the part of the builder. The notice of the complainants was duly replied on 06.06.2017.
5. The complainants filed Affidavit of Evidence of Rakesh Kumar Jhamb. The builder filed Affidavit of Evidence of Manoj Kumar Tripathi. Both the parties have filed various documentary evidence. Both the parties have filed their written arguments.
6. I have considered the arguments of the counsel for the parties and examined the record. The alleged "Partial Occupation Certificate" dated 26.09.2019, filed in CC/1883/2017, is vague. In paragraph-5 of this Certificate, it has been mentioned that "according to revised layout map sanctioned on 30.04.2014, in 2-B parcel, F.A.R. 65514 square meters have been shown. Presently, the allottee organization has done construction of 34997.121 square meters for 2-B parcel. For which the allottee organization has submitted affidavit that future construction would be done according to F.A.R. sanctioned in pocket No. 2-B dated 10.09.2014." There is nothing on record to show that the construction of Flat No. 1202-H, 12th Floor, Tower-4, Block-2-D, was complete and "Occupation Certificate" was in respect of this Tower-4.
7. As per clause-5.1 of the Allottee Arrangement, dated 26.10.2012, possession had to be delivered within 48 months with extended period of 6 months, from the date of execution of the Arrangement i.e. up to April, 2017. There is nothing on record to show that the construction was completed. So far as reason for delay in construction is concerned, the builder, in paragraph-16 of the written reply, has stated that interim order dated 11.01.2013 granted by National Green Tribunal had impact on the construction work during January, 2013 to July, 2013. Farmer's protest affected the work during July, 2013 to September, 2013. During same period, the sand supply was also poor. Thus explanation of maximum period of nine months for delay was given. Supreme Court in Fortune Infrastructure Vs. Trevor D' Limba, (2018) 5 SCC 442, Pioneer Urban Land & Infrastructure Ltd. Vs. Govind Raghavan, (2019) 5 SCC 725, Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, 2019 (6) SCALE 462 and Wg.Cdr. Arifur Rahman Khan Vs. DLF Southern Homes Pvt. Ltd., (2020) 16 SCC 512, held that the buyer cannot be made to wait for possession for unlimited period. In case of inordinate delay in offer of possession, the buyer was entitled for refund of money. So far as judgement of Supreme Court in Ireo Grace Realtech Vs. Abhishek Khanna, (2021) 3 SCC 241, is concerned, Supreme Court found that due date of possession would be 27.11.2018, while possession was offered on 28.06.2019 as such there was delay of about 7 months in offer of possession. As such, proposition of law, of this case is not applicable.
8. The builder took plea that the complainants were defaulter in payment of instalment. Payment plan was "Construction Linked Payment Plan". The builder could not file any demand notice, issued to the complainants before filing the complaint to show that in spite of service of demand notice, the complainants had committed default in payment, as such, it cannot be said that the complainants were defaulter.
O R D E R
In view of aforementioned discussions the complaint is allowed. The opposite party is directed to return entire money deposited by the complainant along with interest @ 9% per annum from the date of each deposit till actual payment. Aforesaid direction be complied with within two months from the date of judgment.
......................J RAM SURAT RAM MAURYA PRESIDING MEMBER