National Consumer Disputes Redressal
Neeraj Agarwal vs M/S. Wave Megacity Centre Pvt. Ltd. on 3 January, 2022
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 1884 OF 2017 1. NEERAJ AGARWAL S/o. Sh. Manmohan Aggarwal, R/o. S-102, Greater Kailash, New Delhi - 110 048. ...........Complainant(s) Versus 1. M/S. WAVE MEGACITY CENTRE PVT. LTD. Through It's Managing Director, Regd. Office At: M-4, South Extn., Part-II, New Delhi - 110 049 ...........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.10255852/- along with interest @18% per annum, (ii) to cancel "Allottee Arrangement Agreement" dated 27.02.2012, (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 complainant, his wife Smt. Shajali Aggarwal and his mother Smt. Sunita Aggarwal booked a residential flat, in this project on 30.09.2012 and deposited Rs.1820000/-. They were allotted Unit No. 202 (area 2100.32 sq.ft.), at 2nd Floor, Tower F, Block-2-B, Block name Amore. Allottee Arrangement Agreement was executed on 22.10.2012. 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.15076096.96, service tax was Rs.465951.40 and other charges was Rs.1070064/-. 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.1820000/- on 30.09.2012, Rs.1600000/- on 14.12.2012, Rs.842585/- on 07.06.2013, Rs.2035494/- on 03.02.2015, Rs.400000/- on 03.02.2015, Rs.400000/- on 01.04.2015, Rs.550000/- on 01.04.2015, Rs.54948/- on 01.04.2015, Rs.2000000/- on 15.05.2015 and Rs.552825/- on 15.05.2015 (Total Rs.10255852/-). But as and when the complainant visited site, he 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. 10255852/- with interest @18% per annum. But instead of returning the amount, the builder gave a vague reply dated 06.06.2017. Then this complaint was filed on 09.07.2017.
4. The builder contested the complaint and filed its written reply on 15.09.2017, in which, material facts have not been denied. It has been stated that the complainant invested money in real estate in order to earn profit. The market in real estate has gone down then, the complainant decided to withdraw from the Arrangement and return of his money along with interest. The complainant did not disclose his other properties. The complainant is not a consumer, within the meaning of Consumer Protection Act, 1986, rather an investor and the complaint was not maintainable. Mrs. Shajali Aggarwal and Mrs. Sunita Aggarwal were co-allottees under the Arrangement but they were not impleaded as the party. 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 complainant was 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 complainant was duly replied on 06.06.2017.
5. The complainant filed his replication on 23.02.2018, in which, the material facts stated in the complaint were reiterated. It has been denied that the complainant had invested money in this flat, for earning profit. Mrs. Shajali Aggarwal the co-allottee, is the wife and Mrs. Sunita Aggarwal, the other co-allottee is the mother of the complainant and all the action are being taken on their behalf also. If necessary, the complainant can obtain their Power of Attorney.
6. The complainant filed Affidavit of Evidence of Manmohan Agrawal. 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 and additional written arguments.
7. The builder filed Interim Application on 07.12.2021, for leave to file Additional Documents, which was allowed. It has been stated in this application that the builder had throughout made earnest efforts to complete the construction, which was completed in 2019. The builder applied for "Occupation Certificate" and partial "Occupation Certificate" was issued on 26.09.2019. The builder offered possession to the complainant through letter dated 22.09.2020.
8. I have considered the arguments of the counsel for the parties and examined the record. The alleged "Partial Occupation Certificate" dated 26.09.2019 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. 202, 2nd Floor, Tower F, Block-2-B, Block name Amore was complete and "Occupation Certificate" was in respect of this Tower-F.
9. As per clause-5.1 of the Allottee Arrangement, dated 22.10.2012, 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. According to the builder, he offered possession vide letter dated 22.09.2020. Thus there was more than three years five months delay in offer of possession. 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. There was about two years eight months delay. 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.
10. The builder took plea that the complainant was defaulter in payment of instalment. Payment plan was "Construction Linked Payment Plan". The builder could not file any demand notice, issued to the complainant before filing the complaint to show that in spite of service of demand notice, the complainant had committed default in payment, as such, it cannot be said that the complainant was 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