State Consumer Disputes Redressal Commission
Neeraj Kumar Gupta & Anr. vs M/S Panch Tatva Promoters Pvt. Ltd. & ... on 17 September, 2024
C-1132/2019 NEERAJ KUMAR & ANR. VS PANCHTATVA PROMOTERS & ORS. D.O.D.:17.09.2024
IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL COMMISSION
Date of Institution : 26.12.2019
Date of Reserving the order: 09.08.2024
Date of Decision: 17.09.2024
CC No. 1132/2019
IN THE MATTER OF
Neeraj Kumar Gupta &
Poonam Gupta
158,Sector 3-A, Vaishali
Ghaziabad-201019
(Through Anuj Chauhan, Advocate)
... Complainants
VS.
Panchtatva Promoters Pvt. Ltd.
Unit no. 105, First Floor,
Vardhman Sidhant Shopping Plaza
LSC Savita Vihar,
New Delhi - 110092
(Through Mr Amit Goel, Advocate)
...Opposite Party No.1
Greater Noida Industrial Development Authority
Knowledge Park-IV
Greater Noida, 201310
(deleted vide order dated 16.01.2020)
... Opposite Party No. 2
Pradeep Kumar Agrawalla
H-175, Sector-63, Noida
(deleted vide order dated 16.01.2020)
... Opposite Party No. 3
Allowed PAGE 1 OF 27
C-1132/2019 NEERAJ KUMAR & ANR. VS PANCHTATVA PROMOTERS & ORS. D.O.D.:17.09.2024
HON‟BLE MS. PINKI, MEMBER (JUDICIAL)
HON‟BLE MS. BIMLA KUMARI, MEMBER (FEMALE)
Present: Complainant no. 1 in person with his counsel
Mr. Amit Goel, Advocate for Opposite Party No. 1
MS. BIMLA KUMARI, MEMBER (FEMALE)
ORDER
1. The present consumer complaint has been filed under section 17 & 18 of the consumer Protection act, 1986 against the Opposite parties alleging deficiency of service.
2. Brief facts of the case are that the Complainants, who are husband and wife had booked a 3-bedroom flat in March 2013 in the Project of OP namely "Galaxy Vega" promoted by the OP no. 1. At the time of booking, certain representations were made by OP no. 1 and its marketing agents regarding the layout plans, which were under process of obtaining approval from Greater Noida Authority
3. It is the case of Complainants that they were allotted a 3 BHK flat, which was initially of 1340 Sq ft. super built up area in their project called "Galaxy Vega", in March 2013 for a total consideration of Rs.44,19,468/-, @Rs. 2,900/- per square ft. (additional Preferential location Charge @ Rs. 150/- for park facing and corner), additional price of Rs. 2,00,000/- for one car parking and service tax of Rs. 1,32,468/- as was applicable at the time of booking.
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4. It is the further the case of the complainants that the proposed layout plan which was initially shown to complainants at the time of booking was approved by OP no. 2 on 27.06.2013. In August 2013 the Opposite Party sent "letter of allotment" for signing by the Complainants. The letter of allotment was in standard pre- printed format. When the Complainants objected on few terms of the Letter of allotment, then OP no. 1 coerced and threatened the Complainants by saying that it would forfeit the booking amount, being the 10% of the total consideration, and compelled the Complainants to sign the Letter of Allotment on 30.08.2013.
5. It is also the case of the complainants that in July 2014, OP no. 1 sent a letter seeking permission from complainant to agree for change in specification of master bed room, from wooden flooring to vitrified tiles, which was denied by complainants. But, OP no. 1 did not ever inform them about proposed change in the project layout.
6. It is the further the case of the Complainants that the promised date for giving possession was 27.06.2016 with grace period of 3 months and thus effectively the promised date of possession was 27.09.2016. The Complainants had already made the payments of 90% of sale consideration as demanded by OP no.1 from time to time and last payment was made on 08.03.2016.
7. It is the case of the complainants that on 07.05.2016, the Complainants came to know that the OP no. 1 has clandestinely and against the express provisions of UP Apartment Act, 2010, got Allowed PAGE 3 OF 27 C-1132/2019 NEERAJ KUMAR & ANR. VS PANCHTATVA PROMOTERS & ORS. D.O.D.:17.09.2024 the layout plan revised on 02.07.2015 without the consent of the Complainants, whereby number of flats were increased from 700 to 885 (26% change), open area was reduced by 14% (a reduction of 12746 Sq. Ft.), number of car parking was reduced by 33, number of trees reduced by 11%, estimated population was increased by 26%. The Complainants pointed out the same to OP no. 1 vide notice dated 20.06.2016 and called upon OP no. 1 to deliver the promised flat, as per originally sanctioned plan and made it clear that the Complainants were not interested in cancellation or refund but only in obtaining possession, as per agreed sanctioned plan dated 27.06.2013. In response to the said legal notice, the OP no. 1 filed reply and called the assertions of Complainants as mere confusion. The reply was responsed by Complainants vide rejoinder dated 19.07.2016.Since the issue was touching upon the rights of other allottees also, in December 2016 the Complainants approached the National Commission for permission to initiate class action. But, the permission was not granted by National Commission by holding that the Commission does not have the pecuniary jurisdiction to decide the complaint and Complainants were relegated to this Commission vide order dated 16.04.2018.
8. It is the further case of the Complainants that, on 22.12.2016 OP no. 1 fraudulently obtained Occupancy Certificate from Greater Noida Authority in violation of building bye-laws, without obtaining fire safety certificate, and the words "fire safety" were deliberately removed from the Occupancy Certificate. In fact, on 12.09.2018 some other allottees namely Mrs. Sangeeta Yadav & Rajesh Yadav Allowed PAGE 4 OF 27 C-1132/2019 NEERAJ KUMAR & ANR. VS PANCHTATVA PROMOTERS & ORS. D.O.D.:17.09.2024 also made complaint to the fire officer for violation of fire safety norms by OP and the Fire safety officers inspected the site and the Opposite Party was served with a fire safety violation notice, wherein it was clearly mentioned that the width of 6 meters fire tender road was absolutely necessary under U.P. Fire safety rules and Greater Noida building bye-laws. The Complainants visited the project site on 31.12.2018 and found that the fire tender road was only 1.5 meters.
9. It is also the case of the Complainants that on 07.01.2019 and 24.01.2019, the OP no. 1, frivolously and fraudulently, insisted the Complainants to take possession of flat by sending emails and attached the computation of interest @ 18% for delay in taking possession. There was an active concealment of the notice by OP sent by the fire Safety department and the fact of the project being fire unsafe. On 16.03.2019 Complainant no. 1 visited the district fire safety office at NOIDA and inquired about the status of complaint made by Mrs. Sangeeta Yadav. The concerned person retrieved the file from records and it was found that till that date, the compliance of notice of fire safety department was not made and the project was fire unsafe.
10. It is the further case of the Complainants that on 27.03.2019 the Opposite Party no. 1 sent a cancellation notice by email which was incidentally not seen by the Complainants as the same was classified as spam for unknown reasons and was responded on 25.04.2019 upon receiving another email from OP no. 1 of Allowed PAGE 5 OF 27 C-1132/2019 NEERAJ KUMAR & ANR. VS PANCHTATVA PROMOTERS & ORS. D.O.D.:17.09.2024 proceeding ahead with cancellation. The Complainants made it clear that an attempt to cancel the said unit, without paying the amount with 18% interest shall be at the risk of OP no. 1. The Complainants on 03.03.2017 sought the details of computation of super area in accordance with agreement dated 30.08.2013 but the details were never provided by Opposite Party to Complainants.
11. It is, thus, the case of Complainants that Opposite Party has failed to make a lawful offer of possession as mandated under law, but knowingly offered the possession of a unit, significantly different from the promised one, by actively concealing the fact of real and potential fire hazard. The conduct of OP amounts to fundamental breach of contract, unacceptable under the law and is amounting to unfair trade practice. The Complainants have requested that the OP no. 1 be directed to give possession of the Unit, as per the originally approved Plan dated 27.06.2013, after thorough safety audits and certification of the complex and to pay interest for delay, till such possession is offered.
Or in the alternative, order the refund of amount already paid by the Complainants with interest @ 18% till the date of actual refund.They have also requested for compensation amounting to Rs. 10 Lakhs and to award the costs of litigation.
12. Notice of the complaint was ordered to be issued only to OP No.1 by Ld Predecessor and OP No. 2 & 3 were deleted from array of parties vide order dated 16.01.2020.
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13. OP No.1 (herein referred to the Opposite Party) filed written statement, wherein preliminary objections were raised that the Hon‟ble Commission does not have pecuniary and territorial jurisdiction. The complaint is barred by limitation. The complaint is bad for mis-joinder of parties as OP No. 3 is neither a service provider nor a necessary party. The allegations levelled by Complainants need elaborate evidence and cannot be decided by summary procedure. There is no deficiency in service on the part of OP. The Complainants does not fall under the definition of Consumers as they have purchased the flat for purpose of investment.
14. It is the further case of Opposite Party that it is a real estate company and launched a housing project in the name and style of "Galaxy Vega." The project was to be developed on the lease hold land, allotted by GNIDA. The Greater Noida Authority sanctioned the plan of the said project on 27.06.2013 and revised sanction plans were approved on 02.07.2015. The sanctioned plan was revised because the OP No. 1 purchased the additional FAR, when the same was offered by the GNIDA. The construction of the project was completed in phase wise manner and tower-wise Occupancy Certificate was obtained by the Opposite Party. The "O.C." of Tower „E‟ in which the Complainants have their apartment was issued by the OP No. 2 on 22.12.2016. The Society consists of 882 flats and out of those 882 Flats, 881 are already sold, and more than 850 families have already moved in. More than 50% of the allottees Allowed PAGE 7 OF 27 C-1132/2019 NEERAJ KUMAR & ANR. VS PANCHTATVA PROMOTERS & ORS. D.O.D.:17.09.2024 have purchased the flats, after the OC was granted by OP No. 2, after getting fully satisfied of the amenities and safety.
15. It is further submitted by Opposite Party that the brokers of the Complainants explained all the terms and conditions of the application form and Complainant No. 1 being a law professional, himself gone through the terms and conditions of the application form dated 10.03.2013.After obtaining the Occupancy Certificate for Tower C, D &E from the concerned authority, the Opposite Party offered possession to the Complainants vide letter dated 28.12.2016 and they were apprised about the balance amount to be paid by them. However, the Complainants refused to take possession of the apartment/flat booked on one pretext or other. Thereafter, several reminders were issued to the Complainants and they were informed about the interest on delayed payments. But, the Complainants failed/ avoided to take the possession of the apartment/ flat and also failed to make the balance payment. Thereafter, as a last opportunity, the Opposite Party sent a letter dated 24.01.2019 and informed the Complainants to take possession of flat, deposit the stamp duty and complete the registration of Tripartite Sub-Lease Deed. But, the Complainants chose not to take possession of flat. Thereafter, the Opposite Party was constrained to cancel the allotment of flat via email dated 27.03.2019 and also informed the Complainants that 10% of the cost of apartment had been forfeited and they can contact to its office for refund of balance amount.
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16. It is further stated by the Opposite Party that the Complainants were aware of the fact that the plan shown to them was tentative and could be changed by the Opposite Party at any time. By signing the Allotment letter, the Complainants consented for the modifications done by the Opposite Party and also agreed that the Opposite Party could do the changes. The Opposite Party has prayed that the complaint filed by the Complainants be dismissed with costs.
17. The Complainants have filed rejoinder to the written statement of Opposite Party, wherein they have denied the averments made by the Opposite Party and reiterated all the facts narrated by them in their complaint.
18. The Complainants have filed the evidence by way of their affidavit wherein they have reproduced all the facts, which are mentioned by them in their complaint and the same are not discussed here to avoid repetition.
19. The Opposite Party has filed the evidence by way of affidavit of Mr. Ajay Bisht, A.R. of the Opposite Party.
20. The Complainants and the Opposite Party have filed their respective written arguments.
21. During arguments, Ld counsel for Complainants has submitted that Complainants want refund of their amount.
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22. First of all, we would like to deal with the preliminary objections taken by the OP No. 1.
"The Commission has no Pecuniary Jurisdiction."
23. It is a case of the opposite party that this Commission does not have pecuniary jurisdiction to entertain the complaint.
24. To deal with this contention, we would like to refer Section 17 of the Consumer Protection Act, 1986 which runs as below:
"(1) Subject to the other provisions of this Act, the State Commission shall have jurisdiction-
(a) to entertain-
(i) complaints where the value of the goods or services
and compensation, if any, claimed [exceeds rupees twenty lakhs but does not exceed rupees one crore]
25. Perusal of Section 17 of Consumer Protection Act, 1986 makes it clear that state commission shall have jurisdiction to entertain a complaint where the value of goods or services and compensation claimed exceeds Rs. 20 Lakhs but does not exceeds Rs. 1 crore.
26. Now, coming to the facts of present case, the complainants have placed on record the copy of statement of account dated 24th January 2019 (page 121 of complaint) issued by the opposite party to the complainants. Now, perusal of this statement shows that the opposite party has received a total sum of Rs.39,95,599/-
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from the complainants, as per clause „F‟ of the said statement dated 24th January 2019. Since, the opposite party has received an amount of Rs.39,95,599/-, we are of the considered view that this court has pecuniary jurisdiction to entertain this complaint and the above contention of the opposite party is answered in negative.
"The Commission has no Territorial Jurisdiction."
27. To resolve this contention, we would like to refer Section 17 (2) of the Consumer Protection Act, 1986 which is reproduced herein for ready reference:
A complainant shall be instituted in a State Commission within the limits of whose jurisdiction-
(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain;
or
(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office or personally works for gain, provided that in such case either the permission of the State Commission is given or the opposite parties who do not reside or carry on business or have a branch office or personally works for gain, as the case may be, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises."
In Rohit Srivastava Vs. Paramount Villas Ltd. 017 SCC OnLine NCDRC 1198, it was inter-alia held as under:
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"Having heard Learned Counsel for the parties at some length, we are of the opinion that the order cannot be sustained. It is not in dispute that the Registered Office of Opposite Party No 1 Company is situated in Delhi, i.e. within the territorial jurisdiction of the State Commission at Delhi and therefore, in the light of clear provision contained in Section 17(2) (a), which stipulates that a Complaint can be instituted in a State Commission, within the limits of whose jurisdiction, the Opposite Party actually carries on business. In view of the said provision, we have no hesitation in coming to the conclusion that since the Registered Office of the first Opposite Party is situated in Delhi, the State Commission did have the territorial jurisdiction to entertain the Complaint. In the light of the said provision, in our view, it was open to the Complainant to choose the Forum to file the Complaint, which on the second occasion he decided to file before the State Commission at Delhi."
28. Now, coming to the facts of the present case, it is to be noted that opposite party, is having its office at Vardhman Sidhant Shopping Plaza, LSC, Sarita Vihar, New Delhi, as per memo of parties. Since, the opposite party is having its registered office at Sarita Vihar, New Delhi, we are of the considered view that this commission has the territorial jurisdiction to entertain the complaint of the complainants. Hence, this contention of the opposite party is also answered in negative.
"The complaint is barred by limitation."
29. To deal with this issue we would like to refer Section 24A of the Consumer Protection Act, 1986, which is also reproduced here for ready reference:
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(1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.
In Mehnga Singh Khera and Ors. Vs. Unitech Ltd. I (2020) CPJ 93 (NC), the Hon‟ble National Commission has held as under:
"It is a settled legal proposition that failure to give possession of flat is continuous wrong and constitutes a recurrent cause of action and as long as the possession is not delivered to the buyers, they have every cause, grievance and right to approach the consumer courts."
30. It is the case of the opposite party that earlier the complainants filed the complaint no.1778/2016 before the NCDRC. The said complaint was disposed of by the NCDRC vide order dated 11.11.2016 with liberty to the complainants to file fresh complaint before the appropriate forum. Thus, the period of limitation started from 11.11.2016 and the said period was over by 10.11.2018. Since, the complainants have filed the present complaint in September 2019 the same is liable to be dismissed being barred by limitation.
31. On the other hand, it is the case of the complainants that the period taken by them in filing the complaint before NCDRC is liable to be excluded in terms of Section 14 of the Limitation Act. Further, the opposite party had repeatedly communicated and insisted the complainants to take possession of flat and therefore each time the fresh period of limitation was there in their favour. The last such Allowed PAGE 13 OF 27 C-1132/2019 NEERAJ KUMAR & ANR. VS PANCHTATVA PROMOTERS & ORS. D.O.D.:17.09.2024 offer was made by the Opposite Party on 07.01.2019 and therefore, the complaint is within limitation as the same amounts to acknowledgement of liability by the Opposite Party. The complainants have also submitted that since opposite party has failed to deliver the possession of flat as promised one and also failed to refund the amount paid by them with interest, the cause of Action further arose in their favour on 18.03.2018, when the occupation certificate was obtained by the opposite party. Further, the cause of action also arose in the March 2019, when the flat was cancelled by the opposite party on 27.03.2019 (page 123) of the complaint.
32. Now, coming to the facts of case, it is to be noted that opposite party has neither handed over the possession of flat nor refunded the amount to the Complainants. We are of the considered view that cause of action was lying in favour of the complainants on 27.03.2019, when the opposite party cancelled the flat, allotted to the complements. It is worth noting that the complainants have filed the complaint on 26.12.2019. In these facts and circumstances of case, we are of the considered view that complaint is not barred by limitation and this contention of opposite party is also answered in negative.
"The case involves complicated questions of facts and law which cannot be decided by summary proceedings."
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33. To deal with this issue, we would like to refer the judgment In J.J. Merchant Verus Shrinath Chaturvedi (2002) 6 SCC 635 wherein it was inter alia held by the Hon‟ble Supreme Court as under:-
"Under the Act the National Commission is required to be headed by a retired Judge of this court and the State Commission is required to be headed by a retired High Court Judge. They are competent to decide complicated issues of law or facts. Hence, it would not be proper to hold that in cases where negligence of experts is alleged, consumers should be directed to approach the civil court.
It was further held that merely because it is mentioned that the Commission or Forum is required to have summary trial would hardly be a ground for directing consumer to approach the civil court. For the trial to be just and reasonable, long-drawn delayed procedure, giving ample opportunity to the litigant to harass the aggrieved other side, is not necessary. It should be kept in mind that the legislature has provided alternative, efficacious, simple, inexpensive and speedy remedy to the consumers and that should not be curtailed on such ground. It would also be a totally wrong assumption that because summary trial is provided, justice cannot be done when some questions of facts are required to be dealt with or decided. The Act provides sufficient safeguards."
34. It is the case of opposite party that allegations leveled by the Complainants need elaborate evidence and the issues cannot be decided by way of summary procedure.
35. However, in the present case, the Complainants are simply seeking only refund of their amount alongwith interest and compensation for mental harassment and litigation costs, as the opposite party is Allowed PAGE 15 OF 27 C-1132/2019 NEERAJ KUMAR & ANR. VS PANCHTATVA PROMOTERS & ORS. D.O.D.:17.09.2024 not able to give possession of the flat as agreed between the parties. In these facts and circumstances of case, we are of the considered view that the case of Complainants does not require any elaborate evidence and can be decided by way of summary procedure. Hence, this contention of opposite party is also answered in negative.
"Whether the Complainants have purchased the flat for commercial purpose."
36. It is the case of opposite party that Complainants have purchased the flat for the purpose of investment and they are not „Consumers.‟
37. To resolve this issue, we would like to refer the judgment of Narinder Kumar Bairwal and Ors. vs. Ramprastha Promoters and Developers Pvt. Ltd. and Ors. decided on 01.11.2019, wherein, the Hon‟ble National Commission has held as follows:
"19. The contention of the Learned Counsel that the said Flats were purchased for commercial purpose is not supported by any documentary evidence as the onus shifts to the Opposite Parties to establish that the Complainant have purchased the same to indulge in 'purchase and sale of flats' as was held by this Commission in Kavit Ahuja vs. Shipra Estates I (2016) CPJ 31. The Opposite Parties failed to discharge their onus and we hence hold that the Complainant are 'Consumers' as defined under Section 2(1)(d) of the Act."
In Anju Vinod Saraswat (Mrs.) Vs. Sahara Prime City Limited IV (2022) CPJ 206 (NC), it was held as under:
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"Onus of establishing that complainant was dealing in real estate, i.e., in purchase and sale of plots/flats for commercial purpose to earn profits lies upon opposite party."
38. Now, coming to the facts of case, the opposite party has not been able to place on record any material that complainants are engaged in the business of purchasing and selling the properties on regular basis. Hence this contention of opposite party is also answered in negative.
39. The last question is whether there is deficiency of service on the part of the opposite party.
40. To resolve this issue we would like to refer Section 2 (1) (g) of Consumer Protection Act, 1986, which is reproduced herein for ready reference:-
(g) "deficiency" means any fault, imperfection. shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.
Further, we would also like to refer the judgment in Arifur Rahman Khan and Ors. vs. DLF Southern Homes Pvt. Ltd. and Ors.2020 (3) RCR (Civil) 544, wherein it has been discussed as follows:
24. A failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within a contractually stipulated period amounts to a deficiency There is a fault, shortcoming or inadequacy in the nature and Allowed PAGE 17 OF 27 C-1132/2019 NEERAJ KUMAR & ANR. VS PANCHTATVA PROMOTERS & ORS. D.O.D.:17.09.2024 manner of performance which has been undertaken to be performed in pursuance of the contract in relation to the service. The expression 'service' in Section 2(1) (0) means a service of any description which is made available to potential users including the provision of facilities in connection with (among other things) housing construction.
Under Section 14(1)(e), the jurisdiction of the consumer forum extends to directing the opposite party inter alia to remove the deficiency in the service in question. Intrinsic to the jurisdiction which has been conferred to direct the removal of a deficiency in service is the provision of compensation as a measure of restitution to a flat buyer for the delay which has been occasioned by the developer beyond the period within which possession was to be handed over to the purchaser. Flat purchasers suffer agony and harassment, as a result of the default of the developer Flat purchasers make legitimate assessments in regard to the future course of their lives based on the flat which has been purchased being available for use and occupation. These legitimate expectations are belied when the developer as in the present case is guilty of a delay of years in the fulfillment of a contractual obligation.
41. In the present case, it is the case of opposite party that there is no delay on the part of the opposite party in construction of the flat as construction was to be completed within 36 months from the date of sanction plans plus additional period of 3 months as per allotment letter dated 30.08.2013. It is further submitted by the opposite party that after completion of the construction of the project, the Greater Noida Development Authority issued occupancy certificate on 22.12.2016 and opposite party offered the possession of the flat to the complainants on 28.12.2016. However, the complainants refused to take possession of the flat on one pretext or the other. The Complainants also failed to make the Allowed PAGE 18 OF 27 C-1132/2019 NEERAJ KUMAR & ANR. VS PANCHTATVA PROMOTERS & ORS. D.O.D.:17.09.2024 balance payments as per the payment plan agreed between the parties. Thereafter, several reminders were sent to the complainants and they were informed about the interest on the delayed payments. The complainants were also informed that upon deposit of the balance payment, the formalities for registration of Tripartie Sub lease deed would be completed by opposite party. The opposite party vide letter dated 09.02.2018 requested the complainants to make the balance payment but the complainants opted not to reply the letter and failed to make balance payments. The opposite party once again offered the possession of the flat vide letter dated 07.01.2019 but no response was received from the complainants. Thereafter, another letter dated 24.01.2019 was written to the complainants but the complainants did not pay any heed to the letter of the opposite party. Ultimately, the opposite party no. 1 cancelled the allotment of the flat on 27.03.2019. The opposite party also informed the bank of the complainants in order to free the unit from encumbrance but the complainants interfered in the process of loan closure and stopped the bank from doing the needful. Therefore, the opposite party could not refund the amount to the complainants. The opposite party has further submitted that as per clause 4 of allotment letter dated 30.08.2003 the building plans were tentative and opposite party was empowered to make changes, modifications, alteration and addition as maybe deemed necessary by the Company, Government or any other local authority or body having jurisdiction. The complainant no. 1, who is an advocate by profession, was well conversant with the terms and conditions of the allotment letter and signed the allotment Allowed PAGE 19 OF 27 C-1132/2019 NEERAJ KUMAR & ANR. VS PANCHTATVA PROMOTERS & ORS. D.O.D.:17.09.2024 letter after reading and understanding the terms and conditions of the allotment letter. The opposite party has also submitted that once the possession of the flat is offered along with occupancy certificate it was obligatory on part of allottees to take possession of the flats and they cannot refuse to take possession in view of the judgments of Hon‟ble NCDRC in Sudha & Ors. v. Jaiprakash Associates Ltd. C.C. No. 2804/2017 2017 decided on 29.04.2021; 2021 (2) C.P.R 585 And Mrunmaya Kar v. Piyush Heights (Piyush Group) M/s. Piyush Buildwell India Ltd. C.C. No. 363/2015 decided on 12.05.2022; 2022 (3) C.P.R 222
42. On the other hand, it is the case of the complainants that the judgments relied upon by opposite party are not applicable to their case because there are valid grounds and reasons for them to refuse to take possession of the flat, which was offered by the opposite party with occupancy certificate.
43. It is the case of the complainants that they booked a 3BHK flat in the project of opposite party in March 2003 for a total consideration of Rs. 44,19,468/. The layout plan of the said project was approved on 27.06.2013. Thereafter, the complainants were made to sign onthe pre printed one sided, standard agreement/Allotment letter dated 30.08.2013 which prima facia was illegal and meant to defeat the provisions of UP Apartments Act, 2010 and thus, void under Section 23 of the Contract Act 1872. It is further submitted by the Allowed PAGE 20 OF 27 C-1132/2019 NEERAJ KUMAR & ANR. VS PANCHTATVA PROMOTERS & ORS. D.O.D.:17.09.2024 complainants that in July 2014 the opposite party sought permission for change in the specification of master bedroom from wooden flooring to vitrified tiles for which they did not agree. But the opposite party never informed them about the proposed change in the layout plan of the project. In July 2015, opposite party got the layout plan of the project revised from Greater Noida in a deceitful and clandestine manner. It is the grievance of the complainants that as per the revised layout plan of the project, the flats were increased from 700 to 885, open area was reduced by 14%, number of car parking was reduced by 33%, number of trees were reduced by 11% and etc. It is also the grievance of the complainants that the lay out plan of the project was revised without their knowledge and consent, which was necessary in view of Section 4 of UP Apartments Act 2010.
Section 4 of UP Apartments Act 2010 is reproduced herein for ready reference:-
"4. General Liabilities of promoter (1) Any promoter who intends to sell an apartment, shall make a full and true disclosure in writing of following to an intending purchaser and the Competent Authority-
(a) rights and his title to the land and the building in which the apartments have been or proposed to be constructed;
(b) all encumbrances, if any, on such land or building, and any right, title, interest or claim of any person in or, over such land or building;
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(c) the plans and specifications approved by or submitted for approval to the local authority of the entire building of which such apartment forms part
(d) detail of all common areas and facilities as per the approved lay-out plan or building plan:
(e) the nature of fixtures, fittings, and amenities, which have been or proposed to be provided,
(f) the details of the design and specifications of works or and standards of the material which have been or are proposed to be used in the construction of the building, together with the details of all structural, architectural drawings, layout plans, no objection certificate from Fire Department, external and internal services plan of electricity, sewage, drainage and water supply system etc. to be made available with the Association;
(g) all outgoings, including ground rent, municipal or other local taxes, water and electricity charges, revenue assessments, maintenance and other charges, interest on any mortgage or other encumbrance, if any, in respect of such land, building and apartments;
(h) such other information and documents as may be prescribed.
(2)......
(3)......
(4) After plans, specifications and other particulars specified in this section as sanctioned by the prescribed sanctioning authority are disclosed to the intending purchaser and a written agreement of sale is entered into and registered with the office of concerned registering authority. The promoter may make such minor additions or alterations as may be required by the owner or owners, or such minor changes or Allowed PAGE 22 OF 27 C-1132/2019 NEERAJ KUMAR & ANR. VS PANCHTATVA PROMOTERS & ORS. D.O.D.:17.09.2024 alterations as may be necessary due to architectural and structural reasons duly recommended and verified by authorized Architect or Engineer after proper declaration and intimation to the owner:
Provided that the promoter shall not make any alterations in the plans, specifications and other particulars without the previous consent of the intending purchaser, project Architect, project Engineer and obtaining the required permission of the prescribed sanctioning authority, and in no case he shall make such alterations as are not permissible in the building bye-laws."
44. It is the further grievance of the complainants that the opposite party fraudulently and unlawfully obtained the occupancy certificate from the Greater Noida Authority without obtaining fire safety certificate. The complainants have submitted that the fire safety violation notice was also served upon the opposite party which is admitted by opposite party. The complainants have also submitted that it is mandatory that fire tender road should have minimum width of 6 meters but the fire tender road in the project of opposite party is having a width of 1.5 meters only. Therefore, the fire tender cannot access to the project because of the lack of adequate width and the words „fire safety‟ were deleted from the occupancy certificate, which was unlawfully obtained by the opposite party. The opposite party had failed to offer the possession of the flat, as per original promised layout plan. The opposite party has violated the rights of complainants regarding the protection against the marketing of goods, Allowed PAGE 23 OF 27 C-1132/2019 NEERAJ KUMAR & ANR. VS PANCHTATVA PROMOTERS & ORS. D.O.D.:17.09.2024 products or services which are hazardous to life and property due to violation of fire safety standard.
45. It is the further grievance of the complainants that opposite party no. 1 cannot make any alteration in the revised layout plan without their previous consent and their prior consent was necessary before doing any proposed change in the layout plan of the project. The opposite party has relied upon an inbuilt consent clause in the Allotment letter which is ex facie illegal and unconscionable. They have stated that the 'consent' means 'an informed consent' which is given freely after entire proposed changes are made available to the buyer as per the judgment of Bombay High Court in Bajranglala Eriwal & Ors Vs. Sagarmal Chunilal & Ors. 2008(6) AIR (Bom) 312.
46. It is the case of the complainants that their consent was neither free nor there is anything on record to prove that the details of proposed changes were ever made available to them before signing of Allotment letter or before applying for revision of layout plan. In fact the original plan was approved on 27th June 2013 i.e. 2 months prior to the Allotment letter and the inbuilt consent clause in the allotment letter was one sided and was intended to defeat the provisions of Section 4 of the UP Apartments Act 2010. The one sided terms of Contract Act have been declared as unconscionable, unfair trade practice and void by Hon‟ble Supreme Court in Pioneer Urban Land & Infrastructure Ltd. Vs Govindan Raghvan (Common Order in Civil Appeal N.12238 of 2018 and Civil Appeal no.1677 of 2019).
Allowed PAGE 24 OF 27 C-1132/2019 NEERAJ KUMAR & ANR. VS PANCHTATVA PROMOTERS & ORS. D.O.D.:17.09.2024
47. It is further case of the complainants that at the time of revised layout plan no such consent of the complainants was ever taken and the layout plan cannot be changed without the consent of allottees in view of the judgment of Hon‟ble Supreme Court in Supertech Ltd. Vs. Emrald Court Owner Resident Welfare Association (Civil Appeal 5041 of 2021) wherein the Hon‟ble Supreme Court inter-alia held as under:
(vii) The first revised plan of 29 December 2006 contained a clear provision for a garden area adjacent to T-1. In the second revised plan of 26 November 2009, the provision for garden area was obliterated to makeway for the construction of Apex and Ceyane (T-16 and T 17). The common garden area in front of T-1 was eliminated by the construction of T-16 and T-17. This is violative of the UP Apartments Act 2010 since the consent of the flat owners was not sought before modifying the plan promised to the flat owners;
48. Since, the offer of possession of the flat with occupancy certificate by the opposite party was not as per initial layout plan and the opposite party did not take the prior consent of the complainants at the time of revised layout plan, which was mandatory, as discussed above, we are of the considered view that opposite party cannot force the complainants to take possession of the flat, which is fire unsafe. In view of the settled law referred above, we are of the considered view that opposite party no. 1 did not obtain the valid consent of the complainants at the time of revised layout plan of the project and the inbuilt consent clause in the allotment letter was one sided and was intended to defeat the provisions of Section 4 of the UP Apartments Act, 2010. Therefore, the offer of possession Allowed PAGE 25 OF 27 C-1132/2019 NEERAJ KUMAR & ANR. VS PANCHTATVA PROMOTERS & ORS. D.O.D.:17.09.2024 along with alleged occupancy certificate by opposite party was not valid and justified.
49. We are of the considered view that there is deficiency in service on the part of opposite party.
50. Accordingly, the complaint filed by the complainants is allowed.
51. The opposite party is directed to refund the amount of Rs.39,95,599/- to the complainants as per the following arrangement:
52. An interest @ 10.25% p.a. as the complainant has taken loan from Nationalized Bank for purchase of the flat, calculated from the date on which each installment/payment was received by the Opposite Party till 17.09.2024 (being the date of the present judgment);
A. The rate of interest payable as per the aforesaid clause (A) is subject to the condition that the Opposite Party pays the entire amount on or before 16.11.2024.
B. Being guided by the principles as discussed above, in case the Opposite Party fails to refund the amount as per the aforesaid clause (A) on or before 16.11.2024, the entire amount is to be refunded along with an interest @ 11% p.a. calculated from the date on which each installment/payment was received by the Opposite Party till the actual realization of the amount.
Allowed PAGE 26 OF 27 C-1132/2019 NEERAJ KUMAR & ANR. VS PANCHTATVA PROMOTERS & ORS. D.O.D.:17.09.2024
53. In addition to the aforesaid and taking into consideration the facts of the present case, the Opposite Party is directed to further pay a sum of A. Rs. 1,00,000/- as cost for mental agony and harassment to the complainant; and B. The litigation cost to the extent of Rs. 50,000/-.
54. Applications pending, if any, stand disposed of in terms of the aforesaid judgment.
55. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
56. File be consigned to record room along with a copy of this Judgment.
(PINKI) Member (Judicial) (BIMLA KUMARI) Member (Female) PRONOUNCED ON 17.09.2024 Allowed PAGE 27 OF 27