National Consumer Disputes Redressal
Anil Agarwalla & Anr. vs Imperial Housing Ventures Pvt. Ltd. & ... on 12 January, 2022
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 3321 OF 2017 1. ANIL AGARWALLA & ANR. ...........Complainant(s) Versus 1. IMPERIAL HOUSING VENTURES PVT. LTD. & ANR. Room No.205, Welcome Plaza S-551, School Block (11) ,Shakarpur, Delhi-110092 2. IMPERIAL HOUSING VENTURES PVT.LTD. 11th Floor, Paras Twin Tower (Tower-B) Secror-54 Golf Cours Road, Gurgaon-122002 HARYANA ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE RAM SURAT RAM MAURYA,PRESIDING MEMBER
For the Complainant : Mr. Anil Agarwalla, Advocate
:Ms. Neha Sharma, Advocate For the Opp.Party : Mr. Jay Savla, Sr. Advocate
:Mr. Akshay Sharma, Advocate
Dated : 12 Jan 2022 ORDER
1. Heard Mr. Anil Agarwalla and Ms. Neha Sharma, Advocate, for the complainants and Mr. Jay Savla, Sr. Advocate assisted by Mr. Akshay Sharma, for the opposite parties.
2. The complainants have filed the aforementioned complaint for directing the opposite parties (hereinafter referred to as the builder) (i) to refund their principal amount of Rs.7631013/- along with interest @18% per annum, (amounting to Rs.27/- lacs i.e. from the date of respective deposits till filing of the complaint), in the event the builder failed to handover possession of the flat to the complainants, complete in all respect, within 15 days of the filing of the complaint (ii) to pay Rs.15/- lacs as the compensation, (iii) Rs.5/- lacs as the compensation for mental agony and harassment, (iv) Rs.50000/- as cost of the litigation and (v) any other relief, which is deemed fit and proper in the facts and circumstances of the case.
3. The facts, as stated in the complaint 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 2010, the builder launched a project of group housing in the name of "Paras Tierea" in Sector-137, NOIDA, district Gautam Budh Nagar, Uttar Pradesh. On coming to know about this project, the complainants visited the office and site of the builder and discussed about the project. The representative of the builder showed a sample flat and the amenities and facilities provided to it. He assured that the project would be completed and possession be given to the buyers within 3 years. Believing upon the assurance, the complainants booked a 3BHK flat on 29.07.2012 and gave a cheque of Rs.710668/-. The builder allotted Unit No. T-28-2305, Tower No.-28, (super area 1592 sq.ft., basic sale price Rs.71.64/- lacs, (total sale price of Rs.7863888/- inclusive of Lease rent, Car Parking charge, Interest Free Maintenance Security Deposit and Internal Development Charge), on 29.08.2012. Along with Booking Application Form, "Construction Linked Payment Plan" was supplied. The complainants deposited instalments as per demand notices served upon them. The complainants paid Rs.710668/- on 18.08.2012, Rs.722132/- on 27.11.2012, Rs.44274/- on 27.11.2012, Rs.716400/- on 22.06.2013, Rs.22136/- on 22.06.2013, Rs.731151/- 26.03.2014, Rs.7386/- on 26.03.2014, Rs.548530/- on 30.07.2014, Rs.731373/- on 03.09.2014, Rs.551861/- on 05.09.2014, Rs.17982/- on 06.09.2014,Rs.179832/-on 26.11.2014, Rs.548364/- on 15.04.2015, Rs.792717/- on 01.07.2015, Rs.755474/- on 26.12.2015 and Rs.550733/- on 30.01.2016 (total Rs.7631013/-). Due date of possession was 28.07.2015 and with six month grace period was January, 2016. The complainants received a letter dated 28.04.2016, informing that the construction was in advance stage of finishing work of Tower-28 and possession would be offered till end of the year. The complainants received a demand letter dated 28.06.2016, demanding Rs.293053/-, in head of "on completion of electrical conduiting & wiring and previous dues". The complainants vide letter dated 05.07.2016, protested the demand as this instalment has already been paid in March, 2015 and sought for information regarding status of his flat and date of delivery of possession. The builder did not respond satisfactorily. The complainants again wrote letter dated 28.03.2017 and email dated 01.04.2017, seeking for information relating to delivery of possession. The builder sent an email dated 04.04.2017 that possession was likely to be given in June-July, 2017. Thereafter, the builder wrote another letter dated 09.05.2017, stating that possession would be delivered soon. The complainants, vide letter dated 22.05.2017, sought for information of actual position of the construction of his flat. The complainants received a letter dated 20.09.2017, giving statement of the account of the complainants, showing dues of Rs.836777/- under various heads. The complainants vide letter dated 25.09.2017, sought for information, as to whether, "Occupation Certificate" had been obtained. The builder, vide email dated 26.09.2017, sent a vague reply. The builder even did not permit to see the flat. The complainants wrote letter dated 27.09.2017 and reminders dated 06.10.2017 and 24.10.2017, demanding the documents, relating to completion of the construction but no reply was given. Then the complaint was filed on 13.11.2017, complaining deficiency in service.
4. The builder filed its written reply on 06.02.2018, in which, material facts have not been denied. It has been stated that the period of possession was three years from the date of agreement, which was executed on 17.05.2013. Under the terms of the agreement, the builder was further entitled for extension of the period of construction for the force majeure and other causes mentioned in the agreement. The builder employed the requisite man power for the construction of the building and completed it and obtained Occupation Certificate on 18.09.2017. The builder offered possession to the complainants, vide letter dated 20.09.2017 and asked to pay the balance amount and complete the formalities. Instead of paying balance amount, the present complaint was filed on 13.11.2017, which was not maintainable. The complainants were defaulter in payment of instalment earlier also for which reminders letter dated 12.01.2015, 14.01.2016 and 28.06.2016 were issued to them. Since the complainants were themselves defaulter, as such, they cannot raise the issue in respect of delay of completion of the constructions. After 18.09.2017 about 2124 home buyers have taken possession in the flats allotted to them. The complainants are making excuse for not taking possession by writing one or other letters. The builder has given suitable reply of the letters/queries made by the complainants. The conduct of the complainants shows that they had purchased the flat for investment purpose and due to down fall in the market of Real Estate, now they want refund of their money as such they are not consumers. The total value of the flat was Rs.78,63,888/- as such this Commission has no pecuniary jurisdiction. This complaint is liable to be dismissed.
5. The complainants filed their rejoinder reply on 05.03.2018, in which, facts stated in the complaint were reiterated. It has been stated that the flat was booked for own residence and not for any commercial purpose. Mahesh Agarwalla, son of complainant-1 took admission in Lloyd Law College, Greater Noida. Existing residence of the complainants was at about 45 Km. from the aforesaid College, as such for their own residence, the flat was booked. The complaint was filed for refund of principal amount of Rs.7631013/- and the interest of Rs.2700000/- and Rs.1500000/- as compensation and total valuation comes to Rs.11831013/- as such this Commission has pecuniary jurisdiction. Perusal of the letter dated 20.09.2017 shows that it was issued merely to realise the money. In this letter, it was nowhere stated that Occupancy Certificate had been obtained, therefore, the complainants vide letter dated 25.09.2017 called for information regarding Occupancy Certificate/Completion Certificate and whether the unit allotted to the complainants was complete in all respect and ready for taking possession. The complainants have also raised their protest regarding liability to pay demanded money as given at Serial No.7, 8 and 9 in the letter/statement of account dated 20.09.2017. In the statement of account, further Rs.205606/- was shown as interest while the complainants had made timely payment of the instalments and no interest was liable to be charged. In response to the letter dated 25.09.2017, the builder by their e-mail dated 26.09.2017 and 05.10.2017 admitted that finishing work in the flat was yet to be carried out and same would be done post clearance of the dues. The builder refused to provide a copy of the occupancy certificate. The builder also denied the physical inspection of the flat by the complainants, which gave a reasonable doubt in the minds of the complainants, in respect of the completion of the construction of the flat. The possession was promised to be handed over within a period of 36 months with a grace period of six months from the date of allotment i.e. 29.09.2012, which had lost in January, 2015. Even in September, 2017, the builder has not supplied the copy of the Occupancy Certificate to the complainants although the complainants have made payment of more than 95% of the sale price, therefore, the complainants have no way but to file the present complaint. The builder has not only committed deficiency in service, but had also adopted unfair trade practice. The builder has realised the amount of 11 instalments till 30.01.2016. The letter dated 28.06.2016 amounts to illegal demand. The alleged agreement dated 17.05.2013 was not executed by the complainants and no reliance can be placed upon it.
6. The complainants filed Affidavit of Evidence of Anil Agarwalla. The builder filed affidavit of evidence of Mr. Mahesh Kumar Tripathi and Affidavit of Admission/Denial of the documents of the complainants. Both the parties have filed their short synopsis.
7. I have considered the arguments of the counsel for the parties and examined the record. This complaint has been filed on 13.11.2017, for refund of sale consideration of Rs.76,31,013/- paid to the builder, if the builder is failed to failed to give possession within 15 days. According to the builder, they had already offered possession, vide letter dated 20.09.2017. Before taking possession, the buyers had to clear the dues according to the Terms and Conditions and complete other formalities, for execution of conveyance deed. So far as final finishing work is concerned, it is always completed after final payment, so that at the time of taking possession, nothing remained incomplete. Instead of making final payment and completing other formalities, the complainants wrote letter dated 25.09.2017, 27.09.2017, 06.10.2017 and 24.10.2017 and ultimately filed this complaint. As such the complaint is liable to be dismissed as the relief as claimed has already been offered to them before filing the complaint.
8. The complainants submitted that the flat was allotted to them on 29.07.2012. At the time of allotment, they were assured that possession would be given within 36 months with grace period of six months, which was completed in January, 2016. Till 30.01.2016, the complainants have paid Rs.7631013/- (i.e. more than 95% of sale price), but the builder was not in a position to give possession to them. The builder vide letter dated 28.06.2016, raised illegal demand of Rs.293053/-, which was protested at that time. Then the builder kept silence for about one year. In the alleged possession letter dated 20.09.2017, it was nowhere mentioned that "Occupation Certificate" had been obtained. In the statement of account as supplied along with letter dated 20.09.2017, again (i) one time electricity connection charges (ii) Labour cess (iii) Core cutting/DG indicator and (iv) Interest of Rs.205606/- were demanded. In the absence of any indication of "Occupation Certificate" in this letter, the complainants demanded information regarding issue of "Occupation Certificate". In spite of various letters, the builder did not supply copy of "Occupation Certificate" nor permitted physical inspection of the flat, as such, the complainants were compelled to file this complaint.
9. A perusal of the letter dated 20.09.2017, shows that it does not indicate anywhere that "Occupation Certificate" had been obtained. In view of previous demand letter dated 28.06.2016, this letter created a doubt in the mind of the complainants about the completion of the flat. In spite of various letters, the builder did not supply copy of "Occupation Certificate" nor permitted physical inspection of the flat, as such, the complaint was filed and it is maintainable. The builder was bound to disclose "Occupation Certificate" and also permit physical inspection. The complainants had already deposited Rs.7631013/- till 30.01.2016. Denial of physical inspection and "Occupation Certificate" was unfair, which compelled the complainants for filing this complaint.
10. The builder filed a copy of an agreement dated 17.05.2013. The complainants have denied execution of this agreement. The agreement does not contain signature of the complainants. Therefore, no reliance can be placed on it. The builder took the case that at the time of allotment on 29.07.2012, they were assured that possession would be delivered within three years i.e. up to July 2015. The builder did not take plea of force majeure for delay in construction. Six months grace period was also expired in January, 2016.The builder has filed only one reminder dated 12.01.2015, which is prior to the promised date of possession, as such, the complainants cannot be said as a defaulter. By not supplying "Occupation Certificate" and not permitting inspection, the builder has committed unfair trade practice. In present case, offer of possession was delayed for about one year eight months.
11. 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 the buyer cannot be made to wait for unlimited period for possession. In case of inordinate delay in offer of possession, the buyer was entitled for refund of money. So far as judgment of Supreme Court in Ireo Grace Realtech Vs. Abhishek Khanna, (2021) 3 SCC 241, is concerned, in this case, delay in offer of possession was found as 7 months. As such Supreme Court held that the buyer was obligated to take possession.
O R D E R
In view of aforesaid discussions the complaint is allowed. The opposite parties are directed to refund entire amount of Rs.7631013/- along with interest @ 9% per annum, from the date of each deposit till actual payment, to the complainants, within two months from the date of this judgment.
......................J RAM SURAT RAM MAURYA PRESIDING MEMBER