State Consumer Disputes Redressal Commission
Harish Kumar Kaushik vs Kashi Promoters Pvt. on 10 June, 2022
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA PANCHKULA Consumer Complaint No.573 of 2017 Date of the Institution:15.09.2017 Date of Decision: 10.06.2022 Harish Kumar Kaushik S/o Sh.Surender Sharma R/o H.No.580, Sector 6 Bahadurgarh, Distt.Jhajjar. Surender Kumar Parashar S/o Sh.Bhagirath Sharma R/o H.No. 601, Sector 6 Bahadurgarh Distt. Jhajjar. .....Complainants Versus Kashi Promoters Pvt. Ltd. regd. Office A-348 Meera Bagh, Main Outer Ring Road, New Delhi-110087 through its Authorised Signatory Sh.Yash Pal Sharma and Sailesh Gahlaut. Yash Pal Sharma Authorized Signatory, Kashi Promoters Pvt.ltd. Admin office 2nd Floor Ruhil Tower Mie Part B Delhi Rohtak road Bahadurgarh, Jhajjar Haryana 124507. Sailesh Gahlaut, Authorized signatory, Kashi Promoters Pvt. Ltd. Admin Office 2nd Floor Ruhil Tower Mie Part B Delhi Rohtak Road Bahadurgarh, Jhajjar Haryana 124507. .....Opposite Parties CORAM: S.P.Sood, Judicial Member Suresh Chander Kaushik, Member Present:- Mr.S.K.Bhardwaj, Advocate for the complainant. Mr.Kamaljeet Dahiya, Advocate for the Opposite Parties. O R D E R
S P SOOD, JUDICIAL MEMBER:
The brief facts giving rise for the disposal of the present complaint are that they (complainants) applied for allotment of 2 BHK flat measuring 1250 sq.ft. in group housing Complex, known as Ruhil Residency to be developed at Sector-3, Bahadurgarh,Haryana. The opposite parties allotted independent flat No.304 Block G-4, Floor 4, Ruhil Residency, Sector Bahadurgarh Haryana for a total sale consideration of Rs.32,52,500/- including all the charges. On 02.08.2013, buyer's agreement was executed between the parties. In total, the complainants had paid Rs.27,29,785/- to the OPs. As per agreement, the construction of the flats were to be completed within a period of 36 months from the date of signing of the agreement. The possession was to be handed over by the end of 2016 but construction was not even started by the OPs. Thus there was deficiency in service as well as unfair trade practice on the part of the OPs.
2. Notice of the complaint was issued against the O.Ps. and the written statement was filed, wherein the O.Ps. alleged that the complainants have not paid the total sale consideration according to the construction linked payment plan and there was an interest of Rs.45,992/- due to delayed payments and the same was still outstanding. The total amount paid by the complainants was Rs.21,29,785/- as stated in the para 8 of the complaint. The total sale consideration was Rs.32,52,500/- excluding other charges, securities taxes etc. The construction of the unit has been completed about 85%and occupation certificate shall be applied by June 2019 and after receiving the same, the respondent will start the process of offering the possession. Thus there was no deficiency in service or any sort of unfair trade practice on the part of the OPs. Other objections about maintainability of complaint, accruing cause of action, concealment of material facts etc. were also raised and requested to dismiss the complaint.
3. When the complaint was posted for recording evidence of the parties, complainant No.1-Harish Kumar in his evidence has tendered the affidavit Ex.CA and affidavit of Surender Kumar as Ex. CB vide which he has reiterated all the averments taken in the complaint and further tendered the documents Ex.C-1 to Ex.C-5 and closed his evidence.
4. On the other hand, in order to rebut the evidence led on behalf of the complainant, O.Ps. has also tendered the affidavit of Mr.Sunil authorized representative Ex. RA alongwith documents Ex. R-1 and closed its evidence.
5. This argument have been advanced by Sh.S.K.Bhardwaj, learned counsel for the complainants as well as Sh.Kamaljeet Dahiya, learned counsel for the opposite parties. With their kind assistance entire record including documentary evidence as well as whatever the evidence had been led during the proceedings of the complaint had also been properly perused and examined.
6. As per the basic averment taken in the complaint and the reply filed thereto including the contentions raised by the learned counsel for the parties, the foremost question which requires adjudication by this Commission is as to whether the present complainants is entitled to get refund the deposited amount alongwith interest?
7. While unfolding the arguments, it has been argued by S.K.Bhardwaj, the learned counsel for the complainants that as far as the executing the buyers agreement is concerned it is not in dispute. It is also not in dispute that the basic price of the flat was Rs.28,12,500/-. A total sum of Rs.27,29,785/- had been paid by the complainants to the O.Ps. As per the buyers agreement and the terms and conditions incorporated therein including date of delivery of the possession of the flat, the possession complete in all respect was to be delivered to the complainants by the O.Ps. within 36 months subject to some reservations. The period within which, the possession of the flat was to be delivered had already expired despite depositing the amount of Rs. 27,29,785/-. The project of the OPs was incomplete. In these circumstances the complainants had no other option, but, to seek the refund of the deposited amount alongwith interest.
8. On the other hand, it has been argued by Mr. Kamaljeet Dahiya, the learned counsel for the O.Ps. that complainants has not paid the installment as per the repayment schedule. The actual amount received by OPs was Rs. 27,29,785/- (R-1). There was a delay in making the payment of the amount. It is true that the documents were executed between the parties, which includes the buyers agreement containing all the terms and conditions for allotment of the flat, for payment of the installments, charging the interest for delayed payment and delivering of possession. Since, there were some unavoidable circumstances and certain reasons which were beyond the control of the O.Ps. and the possession of the flat could not be delivered to the complainants in time. Counsel has placed on record occupation certificate dated 17.03.2022, which shows that some dwelling units were completed and the OPs were ready to offer the possession of the flat. The answering O.Ps. have not committed any breach of agreement. The Haryana Real Estate Regulatory Authority,Panchkula has granted special extension of three months from 01.04.2021 to 30.06.2021 due to second wave of Covid 19 as a force majeure event. Thus the complainants are not entitled to the relief as prayed for.
9. In view of the above submission and after careful perusal of the entire record, it is not in dispute that upon floating a project by the builders, flat was purchased by the complainant for a cost of Rs. 32,52,500/- against which an amount of Rs. 27,29,785/- had been paid. Buyer agreement is also not disputed. As per buyer agreement, the possession of the flat was to be delivered within period of 36 months complete subject to some reservation. To the utter surprise of this Commission and is very pity that inspite of the fact that period of more than 10 years had expired, the possession of the flat has not been delivered by O.Ps. As such, there is a clear breach of terms and conditions of the buyers agreement on behalf of the O.Ps. It is the normal trend of the developers/O.Ps. that developer would collect their hard earned money from the individuals and would invest the funds in other projects as a result thereof the project for which the investors have invested their hard earned money is not completed.
10. The OPs are relying upon letter dated 17.03.2022 treating it to be completion certificate and occupation certificate to have been issued by the concerned authority i.e. DTCP. Perusal of the said letter shows that vide said letter the DTCP has granted occupation certificate subject to following conditions detailed below:-
"i. The building shall be used for the purposes for which the occupation certificate is being granted. Any violations of this condition shall render this Occupation Certificate null and void.
ii. That you shall abide by the provisions of Haryana Apartment Ownership Act, 1983 and Rules framed thereunder. All the flats for which occupation certificate is being granted shall have to be compulsorily registered and a deed of declaration will have to be filed by you within the time schedule as prescribed under the Haryana Apartment Ownership Act 1983. Failure to do so shall invite legal proceedings under the statute.
iii That you shall be fully responsible for supply of water as per norms. iv. That you shall obtain the connection for disposal of sewerage and drainage from HSVP after laying the services to the point of external services on payment of prescribed fees and charges including the cost of such connection. You shall also maintain the internal services to the satisfaction of the Director. v. That you shall be solely responsible for disposal of sewerage and storm water of building till such times the services are made available by HSVP/State Government as per their scheme. vi. That in case of some additional structures are required to be constructed as decided by HSVP at later stage, the same will be binding upon you. vii. That you shall maintain roof top rain water harvesting system properly and keep it operational all the time. viii. That the outer façade of the buildings shall not be used for the purposes of advertisement and placement of hoardings. ix. That you shall neither erect nor allow the erection of any communication and Transmission Tower on top of the building blocks. x. The basements and stilt shall be used as per provisions of approved zoning plan and building plans. xi. That you shall comply with all the stipulations mentioned in the Environment clearance issued by the MOEF vide memo dated 10.03.2017. xii. That you shall comply with all the conditions laid down in the Memo No.FS/2021/25 dated 28.08.2021 & Memo No. FS/2021/60 dated 30.12.2021 of Fire Station Officer, Bahadurgarh with regard to fire safety measures and you shall be fully responsible for fire safety measures. xiii. That you shall use light-emitting diode lamps (LED) for its campus as well as building. xiv In case the electricity is supplied through Generators then the tariff charges should not exceed the tariff being charged by DHBVN. xv That you shall impose a condition in the allotment/possession letter that the allottee shall used light emitting diode lamps (LED) for internal lighting, so as to conserve energy. xvi The day & night marking shall be maintained and operated as per provision of International Civil Aviation Organization (ICAO) standard. xvii That you shall comply with all the conditions laid down in form-D issued by under sub section (2) of Section 4 of Haryana Lifts and Escalators Act, 2008 (27 of 2008)
xviii That provision of parking shall be made within the site earmarked/designated for parking and no vehicle shall be allowed to park outside the premises of the site."
Without compliance of these conditions it cannot have been treated as occupation certificate for all intents and purposes nor this can be treated and used by the OPs as occupation certificate free from conditions. OPs has not placed on the file any evidence for compliance of these conditions and in specific about connection of water, electricity, sewerage and storm water that appears to be the reason as to why the offer of possession was being issued to different persons at different times. Had the tower been complete in all respects, there was no reason as to why piece meal offer of possession was not being issued to different allottees. More particularly, whether the conditions imposed by the competent authorities while granting occupation certificate, a conditions included the provisions of electricity, such as water supply, sewerage, drainage, rain harvesting system, LED in the building, street lighting, storm water and environmental clearance, which were certainly basic necessities for residence. This was certainly an unfair trade practice on the part of the OPs by giving offer of possession for incomplete building and charging interest/holding charges from the complainants.
11. Resultantly, the delivery of possession or completion of the project was delayed in the present case. When the project is not complete as such, this Commission is of the considered opinion that there is deficiency in service of opposite parties and thus, complainants are well within his legal rights to get the interest on the deposited amount. Even otherwise also there is a strong element of the physical and mental agony caused to the complainants for investing a huge amount and still deprived of not being put into possession of the same and under these constrained circumstances, he had to knock the door of this Commission even for seeking new possession letter and interest on the deposited amount. In such like cases the Commission had to deal with the developers/O.Ps. with severe hands who are misusing the funds of the individuals. As such the question is answered in the affirmative.
12. In the light of the above observations, we are of the considered view that the opposite party is found deficient in rendering proper service to the complainants and have indulged in unfair trade practice. Hence, the present complaint of the complainants deserves to succeed against the opposite parties. Accordingly, the complaint stands allowed with directions to the opposite parties to refund Rs. Rs.27,29,785/- to the complainants alongwith interest @ 9% p.a. on the deposited amount from January, 2016 till realization as the tentative date for delivery of possession i.e. December 2015. The OPs are also directed to pay compensation of Rs.50,000/- (Fifty thousand only) on account of deficiency in service, harassment and mental agony suffered by the complainants by the acts of the OPs alongwith Rs.25,000/- as litigation expenses. In case, there is a breach in making payment within the stipulated period of 30 days, in that eventuality, the complainants would further be entitled to get the interest @ 12% per annum, for the defaulting period. It is also made clear that for non-compliance, the provisions enshrined under section 72 of the C.P.Act would also be attracted.
June 10th, 2022 Suresh Chander Kaushik, S.P.Sood Member Judicial Member S.K.(Pvt.Secy)