National Consumer Disputes Redressal
Lt. Col (Retd) Rakesh Bansal & Anr. vs Chairman Management Committee, Awho & ... on 26 November, 2024
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 474 OF 2016 1. LT. COL (RETD) RAKESH BANSAL & ANR. HOUSE NO. 42, SARASWATI VIHAR, RAIPUR ROAD, DEHRADUN - 248 001 UTTRAKHAND ...........Complainant(s) Versus 1. CHAIRMAN MANAGEMENT COMMITTEE, AWHO & ANR. ARMY WELFARE HOUSING ORGANISATION, KASHMIR HOUSE, NEW DELHI - 110 011 2. THE MANAGING DIRECTOR, AWHO ARMY WELFARE HOUSING ORGANISATION, KASHMIR HOUSE, NEW DELHI-110011 ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE A. P. SAHI,PRESIDENT HON'BLE DR. INDER JIT SINGH,MEMBER
FOR THE COMPLAINANT : COL. R.BANSAL, IN PERSON FOR THE OPP. PARTY : MR. A.K.TEWARI, ADVOCATE WITH
MR.RAHUL BURMAN, ADVOCATE
WITH MR. R.B.PRASAD,REP. OF AWHO
Dated : 26 November 2024 ORDER
DR. INDER JIT SINGH, MEMBER
The present Consumer Complaint (CC) has been filed by the Complainant against Opposite Parties (OPs) as detailed above, inter alia praying for directions to the OP(s) :-
a. to pay a sum of Rs.1,74,74,910/- towards cost of similar dwelling unit in Bangalore ( North) since dwelling unit of complainant is located in Bangalore ( North).
b. to pay a sum of Rs.12,36,000/- for lost returns / rent w.e.f. 01.01.2008 to 01.04.2016 ( 100 months )@ Rs. 8/- per sq. ft - 8 x 1545 x 100
c. to pay Rs.60,000/- incurred by the complainant for the visits from Dehradun to Bangalore
d. to pay the complainant Rs.12 lacs ( Rs. 6.00 lacs each) towards compensation / damages for mental agony and harassment and also 18% interest on the amounts till payment.
2. Notice was issued to the OP(s). Both the OPs are same organization, i.e. Army Welfare Housing Organisation ( AWHO), represented by two authorities / officers, hence they will also be referred to as OP / AWHO hereinafter. The main booking / allotment was in the name of Complainant no.1, with Complainant No.2 as the nominee. Hence, any reference to Complainant hereinafter would be reference to complainant no.1, who was the allottee. Parties filed Written Statement/Reply, Rejoinder, Evidence by way of an Affidavit and Written Arguments/Synopsis etc. as per details given in the Table at Annexure-A. The details of the flat allotted to the Complainant (s) /other relevant details, based on pleadings of the parties and other records of the case are also given in Annexure - A.
3. During the pendency of this Consumer Complainant, complainant no.2 Smt. Kumud Bansal expired and an IA No. 1993 of 2023 was filed for bringing LRs of complainant no.2 on record, which includes complainant no.1, two sons and one daughter of the deceased complainant. The application was allowed on 02.05.2023 and amended memo of parties was filed.
4. Brief facts of the case, as emerged from the pleadings of the parties and other case records are that Complainants in the year 2004 paid registration amount of Rs.90,500/- to the OP for housing project in Sector 82, Noida, U.P. However, due to inability on the part of the OP to provide a dwelling unit at Noida, complainants had to apply for change from Noida to Bangalore project and the OP carried out the changeover. The complainant booked an independent house in the housing project, namely, Yelahanka, Bangalore, measuring 300 sq. yds and OP allotted fresh membership registration number to the complainant.
5. It is the case of the complainant that OP issued booking letter without technical brochure in respect of said housing project but the said booking letter did not contain the details of house for which booking letter was issued. The complainant were required to pay Rs.3,65,000/- in two instalments and the completion of project was mentioned as 3 years in the said booking letter. The cost of the dwelling unit was Rs.14.7 lacs including cost of land but excluding escalation and cost of car parking.
6. The complainant paid the 1st and 2nd instalments of Rs.1,82,500/- and Rs.1,82,500/- and requested the OP to furnish full details of the house, plot and construction schedule of the dwelling unit alongwith technical brochure but OP failed to furnish the same. The OP had collected 31% of the cost of the dwelling unit without disclosing any information / details of the house, plot and construction of the dwelling unit. The OP revised the planning of the project and named it as Yelahanka project A and B and for the first time mentioned the super area i.e. 1520 sq.ft. The OP also revised the cost of the dwelling unit from Rs.14,70,000/- to Rs.18,90,000/- without assigning any reason for price increase.
7. On 06.01.2006 and after collecting 31% of the housing cost, the OP submitted an application before Bangalore International Airport Area Planning Authority (BIAAPA) for approval of their residential project. The BIAAPA issued a commencement certificate in respect of the project of the OP to the OP releasing only 60% construction site for construction with lot of conditions including that balance 40% will be released after development of the area. However, site of the complainant was not listed in the released 60% site.
8. On 20.04.2010, the OP issued second booking letter for the same project. The said letter was seen by the complainant on their return from abroad in September 2010. The OP in the said booking letter without any explanation and in violation of Karnataka Govt. Laws had increased the cost of dwelling unit to Rs.41,30,000/-. The complainant on seeing the booking / demand letter requested the OP to grant some time for payment of instalment which was not granted. However, the complainant paid all instalments as per schedule and continued to request the OP to furnish the details of the house, money demands / details of account statement, progress and cost of the project, which was also not given.
9. On 07.02.2013, the OP conducted draw for allotment of the dwelling units and vide the said draw, the complainant got dwelling unit no. P5-56 with car parking. The OP issued allotment letter to the complainant allotting dwelling unit no. P5-56.
10. On 20.10.2014, the OP unilaterally cancelled the allotment of the dwelling unit of the complainant. In the cancellation letter, OP stated that they would refund the amount paid by the complainant after deducting Rs. 500 + 20,000/- + delay payment interest towards application fee, penalty for withdrawal respectively, whereas the complainant never sought any withdrawal.
11. On 27.11.2014, the OP sent a letter with cheque of the huge amount to Punjab National Bank, Dehradun, which extended a small loan to complainant for closure of loan account of complainant held with the said Bank.
12. It is the case of the complainant that OP after having received a total amount of Rs.41,30,000/- failed to hand over the possession of the dwelling unit as promised and assured by the OP including the occupation certificate. Further, the OP unilaterally cancelled the allotment of the dwelling unit. Further, the OP failed to complete the project as per the schedule within 3 years from the date of first booking letter.
13. Case of complainant is that OP unilaterally and inexplicably increased the cost of the dwelling unit from Rs.14,70,000/- to Rs.41,30,000/-.Even no occupancy certificate was furnished to the complainants.
14. Being aggrieved of the said acts of the OP, the Complainants filed the present CC before this Commission.
15. The OP in their written statement/reply stated that Complaint is not maintainable as Complainants are not the consumers as they have been making investments for commercial profits while seeking allotment of dwelling units which they have sold subsequent to the allotment. It is stated in the
written statement that complainants are the owners of residential property no. 42, Saraswati Vihar, Rajpur Road, Dehra Dun, Uttarakhand. Complainant no.1 applied and registered for a dwelling in a group housing scheme developed by the OP at Sector 37, Arun Vihar, Noida, U.P and complainant no.1 in the said project named his wife as his nominee qua the allotment of a dwelling unit and based on the option given by complainant no.1, OP-Society allotted to the complainant no.1 a Type III Flat no. 1479 in Sector 37, Arun Vihar Group Housing Scheme at Noida, U.P. and after the purchase of the aforesaid dwelling unit, the complainant never resided therein and vide Transfer Cum Sale Deed, sold the said dwelling unit to one Sh. Satwinder Kumar Gupta.
16. It is further averred by the OP that complainant no.1 vide letter dated 29.07.2004 requested for change of his registration from Sector 82, Noida Scheme to group housing scheme proposed by the OP at Yelahanka, Bangalore. A booking letter was issued to the complainant no.1 in which a pre-assessed tentative cost of the dwelling unit was intimated to all the allottees and was subject to further revision. Further, it is stated that due to introduction of the statutory requirement of environmental clearance and also a notification issued by the Karnataka Government for a peripheral road passing through the middle of the plot of the OP-Society, the construction work could not commence, which delayed the construction, which was beyond the control of the OP-Society. The said development was conveyed to all the allottees of the project including complainant no.1. Accordingly, OP-Society had to de-novo carry out the town planning of the project to be developed on its 50 acres plot and seek approval from a newly constituted regulator and Town Planning Authority known as BIAAPA. The OP-Society even offered the allottees to opt out from the project scheme without being levied any penalty charges and complainants inspite of the knowledge of the status of the project continued to remain to be allottee in the housing project of the OP. It is further averred by the OP in their written version that reason for escalation of cost of the dwelling unit and all other relevant information asked by Complainant no.1 was intimated.
17. OP further stated in their written version that Whole Sale Price Index of all the commodities published by the Office of Economic Advisor, Govt. of India on August 2010 when AWHO received the tender for the housing project was 263.30 and subsequently increased to 318.78. Further, increase in the cost of the commodities required for the development of the group housing project was beyond the control of AWHO. Further, complainant no.1 had paid only Rs.39,50,400/- and balance Rs.5,14,865/- was due for payment.
18. It is further stated by the OP in their written version that complainant no.1 was repeatedly asked to pay the balance payment and furnish the mandatory legal documents ( affidavit, undertaking and photographs duly executed ) / attested ) to facilitate the handing / taking over of the dwelling unit, however, inspite of OP letters / emails, the complainant no.1 neither paid the balance amount nor submitted the above mentioned legal documents. Accordingly, failure to pay the balance cost of allotted dwelling unit, the allotment was cancelled in terms of paragraph no.52 of the terms of allotment as contained in the Master Brochure and complainants deposits were refunded to him and on not accepting the refund cheque, the same was paid to him through RTGS which too was returned and the OP have since kept the said amount in fixed deposit.
19. It is further averred that disputes relating to cancellation of allotment of the dwelling unit on account of complainant no.1 not paying the full cost of the dwelling unit is neither a consumer dispute nor has the complainant established any deficiency in service. The assessment of the complaint estimated at more than Rs.2.00 crores is without jurisdiction as the total cost of the dwelling unit allotted to the complainant is costing Rs.44,65,265/- and therefore, this Commission has no pecuniary jurisdiction to entertain the present consumer complaint.
20. Complainants in their rejoinder denied all the averments and allegations made by the Opposite Parties. However, the fact that complainants had and still has a residential house no 42, Saraswati Vihar, Rajpur Road, Dehradun is not disputed. Further, it is not disputed with regard to application made for a flat from AWHO at Sector -37, Noida in the year 1979 and allotment of same vide letter dated 10.02.1982.
21. Heard complainant no.1 who appeared in person on his behalf and on behalf of LRs of complainant no.2 and learned counsel for OP. Contentions/pleas of the parties, on various issues raised in the Complaint, based on their Complaint/Reply, Rejoinder, Evidence, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.
a. Complainant no.1 Col.) Retd.) Rakesh Bansal appeared in person and argued the case. It is argued by complainant no.1 that a Division Bench of Hon'ble Delhi High Court on 18.09.1990 declared the AWHO ( OP) an instrumentality of State. Further, it is argued that OP before advertising the project, had no sanction and for that matter had not even applied for the same, which fact was concealed by the OP. Even in July 2004, the OP had no sanctions. Further, it is argued that when the project was advertised, Karnataka Ownership Flats ( Regulation-Promotion, Construction, Sale, Management and Transfer ) Act, 1972 ( in short Karnataka Act 1972) and Karnataka Town and Country Planning Act 1961 was in existence and was operational. Further, OP have themselves gave no objection for co-opting complainant No.2 Mrs. Kumud Bansal as Co-borrower for housing loan and for joint registration of the property.
b. It is also argued that their complaint would have been dismissed in 2016 itself on admission stage itself if it had not been covered under the pecuniary jurisdiction of this Commission. Reliance has been placed on the order of the NCDRC in SwaranTalwar and Ors. Vs. M/s Unitech Limited decided on 14.08.2015 which has been upheld by the Hon'ble Supreme Court. The OP have themselves admitted that there is delay of 06 years between the date of booking i.e. in 2004 and start of construction in 2010, which constitutes deficiency in service as held by this Commission and Hon'ble Supreme Court. Complainant no.1 further argued that 15 months after issuance of 1st booking letter on 14.10.2004 OP demanded 31% of the booked dwelling unit and this was done while Karnataka Act 1972 was existing and operational which do not permit builder collecting more than 20% dwelling unit cost as advance. The OP never explained the increase of the price of the dwelling unit to Rs.43,96,719/- despite the repeated requests. It is argued that OP made all efforts to avoid registration under RERA in Tamil Nadu as RERA Act came into force on 22nd June, 2017.
c. Complainant no.1 further argued that OP wanted them to sign on dotted line on undertaking, however, no occupation certificate and completion certificate was given. Further, as a result of not submitting the undertaking as demanded by the OP, they cancelled the allotment despite making the payment. The booking of the dwelling unit, its processing and possession was governed by Karnataka Act, 1972 which was not followed by the OP. It is also argued that before filing the consumer complaint, a legal notice was served on OP seeking detailed statement of account with OP, full details and measurements of house and the plot and scanned copy of completion certificate issued by BIAAPA, however no information was sent till the filing of the Complaint. Further, it is argued that if OP had obeyed the statute of Karnataka Act, 1972,it could not have charged inflated cost of Rs.41.3 lacs.
d. It is further argued that booking letter for part cost was issued on 14.10.2004 but at that point of time, OP had no sanction for the project and application to obtain sanction was submitted only on 14.01.2006 which fact was concealed from plan sanctioning authority- BIAAPA that it had already advertised the project and by April 2005 had collected 31% of the dwelling unit cost. The said fact was also not disclosed to the applicants. Further, construction commenced in March 2010, however OP received 1st of the two commencement certificate on 10.09.2009 which was applied only on 14.01.2009 after collecting 31% of dwelling unit cost. No Builder-buyer agreement was executed between complainant and OP. Further, the layout plan comprises 271 various dimensions of residential sites, whereas OP constructed 381dwelling units and has occupation certificate for 75 dwelling units. No changes shall be made in the layout without prior approval from the Authority and for the sale of residential sites in the layout if any advertisement is to be issued, then approval number accorded with date is to be published.
e. The OP without waiting for 2nd commencement certificate, constructed entire project at one go. There were only 217 sites but 381 constructed which amounts to huge changes in the sanctioned plan and clear violation of condition of the Authority. Further sewerage treatment plans were non functional and no occupation certificate and completion certificate was in hand of the OP. The OP coerced people to take over the dwelling units and thus OP created 3rd party interest.
f. Complainant no.1 also filed his written submissions on 05.09.2024. In the said written submissions, it is stated that many Acts and Statutes were operational in 2002 when OP advertised demand survey for the project inviting applications like Karnataka Act, 1972, Karnataka Ownership Flats ( Regulations - Promotion, Construction, Sale, Management and Trf) Rules 1975 ( Karnataka Rules, 1975), Karnataka Town and Country Planning Act, 1961, Karnataka Municipal Corporation Act, 1976, Karnataka Muncipalities Act, 194 and Banagalore Mahapalike Building Bye-Laws 2003. It is further stated that OP did not give any substantial proof to prove cost escalation and did not produce any audit document, financial document, project accounts, contract deeds with the construction company and kept adding clauses arbitrarily to their advantage. It is further stated that in contravention of condition no.1 of the Commencement Certificate dated 28.11.2013, construction sites in the project were divided / reduced / amalmagated. Karnataka Act, 1972 prohibits change in plot, size ( after plan sanctioned) and mandates project to be constructed as per the sanctioned plan. It is also stated that Further the OP without waiting for the 2nd commencement certificate continued with the construction based on the 1st Commencement certificate which was objected to by the BIAAPA.
g. Complainant no.1 has further stated that negligence has been committed by the OP on the grounds that no sanction before the advertising the project was taken, violated the Karnataka Act, did not attach the technical brochure with the 1st booking letter, did not create and maintained four registers as mentioned in the Karnataka Rules, did not obtain building sanction for all 424 dwelling units and was granted approval for only 75 ( house of complainant no.1 not in the 75 approvals) and applied to BIAAPA for balance of 40% construction site only on 08.03.2013. It is further averred that as per original estimated cost dated 17.01.2005 i.e. 1st instalment of part cost, there is addition of 2 lacs from Rs.41,09,779/- ( basic cost) & Rs.86,940 ( addl.cost of land) which has been shown as Rs.43,96,719/-. , which amounts to cheating on the part of the OP.
h. Further, it is stated that OP for the first time applied to project sanctioning authority ( BIAAPA) after collecting 31% DU cost, which shows that on 04.07.2004, when OP advertised the project, it did not have sanction to advertise. From april 2005 to End march 2010, 31% of the dwelling cost was collected but no construction activity started. The construction work in the project has not started till March 2010. The dwelling units that had got the sanction were constructed with huge deviations from the sanctioned plan. The OP never bothered to specify in writing the date by which possession of the flat was to be handed over, which is vioilation of Karnataka Ownership Flats Regulation, Promotion, Construction, Sale, Management and Transfer) Act, 1972. The OP also did not reply to the various queries put up by him in relation to approval map signed by BIAAPA, commencement certificate etc.
i. Complainant no.1 further argued that instead of constructing stilt plus 2, the OP constructed stilt plus 7 storeyed dwelling units and after sanction of plan, reduced the plot sizes but continued to charge for full. Further OP did not get the mandatory inspection done at any stage.
j. Complainant no.1 has relied upon the several orders of the National Commission, High Court and Hon'ble Supreme Court, which are given below :
a. SwarnTalwar and Ors. Vs. M/s Unitech Limited - decided on 14.08.2015 ( upheld by the Hon'ble Supreme Court )
b. Brig. Kamal Sood Vs. DLF Universal decided by the National Commission on 20.4.2007.
c. M/s Fortune Infrastructure ( now known as Hicon Infrastructure ) and Anr. Vs. Trevor D'Lama and Ors. - Civil Appeal Nos. 353303534 of 2017.
d. Suman Kumar Jha and Anr. Vs. Mantri Technology Constellations Pvt. Ltd.-CC No. 54 of 2018 decided on 29.10.2021
e. Belaire Owner's Assocition Vs. DLF Ltd.
f. Inderjit Singh Bakshi Vs. S M V Agencies Pvt. Ltd, decided by National Commission on 30.11.2015
g. Emaar MGF Land Pvt. Ltd. Vs. Krishan Chander Chandna decided by National Commission on 29.09.2004
h. Faqir Chand Gulati Vs. Uppal Agencies Pvt. Ltd. and Anr. decided by Hon'ble Supreme Court on 10.07.2008
i. Padmavati Enterprises Vs.Dharshi Dedhia decided by National Commission in RP No. 3275 of 2010
j. Yar Mohammad Vs. Lakshmi Das LLR ( 1958) 2 All 394
k. Salem Advocate Bar Association, Tamil Nadu Vs. Union of India AIR 2005 SC 3353
l. Central Inland Water Vs. Brojo Nath Ganguly and Anr. decided by Hon'ble Supreme Court on 06.04.1986
m. Lucknow Development Authority Vs. M K Gupta decided by Hon'ble Supreme Court on 05.11.1993
n. Ghaziabad Development Authority Vs. Balbir Singh decided on 17.03.2004.
o. Pioneer Urban Land and Infrastructure Ltd. Vs. Govindan Raghavan - Civil Appeal No. 12238 of 2018.
p. Belaire Owners Association Vs. DLF Ltd. passed by CCI dated 12.08.2011
.
q. Friends Colony Development Committee Vs. State of Orissa 2004 (8) SCC 733 r. Faqir Chand Vs. Uppal Agencies Pvt. Ltd.
s. Priyanka Esttes Pvt. Ltd. and Ors. Vs. State of Assam and Ors. Insc 1782 (2009) decided on 03.12.2009 t. Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra II ( 2019) CPJ 29 SC.
u. Brig. Kamal SoodVs. DLF Universal Ltd- decided by this Commission on 20.04.2007 v. Brig. K G Kuthiala Vs. Army Welfare Housing Organisation decided by National Commission in FA No. 363 of 1994 w. Ganesh Prasad Vs. LDA - Diary No. 19506 dated 11.07.2022 x. Lochan Singh Sanodiya Vs. State of Madhya Pradesh y. Adhoc User Committee Vs. Adjutant General and Ors. CWP 20502 of 2015 z. Brig JS Dharmadheeran Vs. AWHO aa. Managing Director, AWHO and Anr. Vs. Brig. Pradeep Kumar Kashik bb. Managing Director, AWHO and Anr. Vs. Col. Ranjit Singh decided on 15.11.2022 cc. Deepak Agarwal and Anr. Vs.Three C Shelters Pvt. Ltd. decided on 21.01.2020 dd. Satish Kumar Pandey and Anr. Vs. Unitech and connected matters ee. Ambrish Kumar Shukla and Ors. Vs. Ferrous Infrastructure Pvt. Ltd.
ff. Emmar MGF Land Ltd.and Ors. Vs. Amit Puri II (2015) CPJ 568 gg. Harbans Singh Vs. Lucknow Development Authority 1995 (2) CLT 361 hh. Janak Gupta Vs. HP Housing Bd. 2002 (3) CLT 300
22. Learned counsel for the OP apart from repeating the points which been stated in their written statement from para 15 to 19, also argued that that Mrs. Kumud Bansal / complainant no.2 since deceased has no locus to file the present complaint as co-complainant no.2 as there is no privity of contract between complainant no.2 and OP. Further, learned counsel relied upon the order of this Commission in FA No. 367 of 2006- DLF Vs. Abdula Azim, CC No. 833 of 2020 - Pyaridevi Chbiraj Steels ( P) Ltd. Vs. National Insurance Co. Ltd and also judgment of the Hon'ble Supreme Court in (2000) 4 SCC 120 - Prashant Kumar Sahai Vs. Ghaziabad Development Authority, ( 2011) 6 Supreme Court Report - Tamil Nadu Housing Board Vs. Service Society and Ors and Rule 52 of its brochure. It is also submitted by learned counsel for the OP that since amount of Rs.40.54 lacs was returned by the complainant to the OP-Society, the same was invested in a Fixed Deposit and as on 05.01.2025 shall amount to Rs.67,67,800/- i.e. Rs.40,54,401/- being the principal amount of FD and Rs.27,13,300/- as interest thereon, if this Commission direct the OP to refund the aforesaid FD amount, the OP shall refund to complainant no.1 Rs.40,54,401 as principal amount in FD and interest accrued thereon on the date of payment.
23. OP (AWHO) contend that they are a registered society set up with objective of providing dwelling units to serving and retired personnel as well as their widows, all over India on' no profit and no loss basis'. OP Society develOP as a welfare measure, all its projects from the contributions made by the allottees apart from the short term borrowings from financial institutions. Issues relating to immunity of AWHO for any wrong doing or inefficiency or negligence or deficiencies in service came up for final consideration before this Commission in CC No. 836 of 2017 Brig J S Dharmadheeran Vs. Army Welfare Housing Organization ( AWHO) and Ors. and this Commission vide its order dated 06.04.2023 observed as follows :
OP has contended that AWHO (OP-1) is a society registered under Societies Registration Act, 1860, a welfare society committed to provide structurally sound, economically viable dwelling units to Armed Forces personnel including service personnel, retired veterans, war widows and family members of battle casualty. AWHO functions on 'no profit no loss basis', under self-financing model, it is not a commercial builder in any manner, it keeps 3% of total collections as establishment charges meant for salaries, office expenses, establishment expenses etc., Unlike commercial builders, AWHO primarily runs on the contributions by the allottees without any profit motive. The income and property of the society, whenever derived shall be applied by the society towards promotion of the objects of the society, no proportion by way of dividend or bonus or otherwise shall be paid to any person who at any time are or have been members of the society or to any person claiming through them. AWHO maintains separate accounts of each project, and also refunds the allottees in case any surplus is collected upon closure of project accounts. It is not engaged in commercial activities for generating profits. Any surplus of more than 3% is used to procure land for future use of the Army Personnel. If surplus amounts are more than the audited expenses then it is returned to the allottees as well. In the last 45 years AWHO has delivered about 120 projects for Army personnel involving construction of more than 33,500 dwelling units, the residential units delivered by AWHO are much cheaper when compared to private builders and of sound construction quality. AWHO is overseen by a Board of Governors comprising of the Chief of Army Staff, the Vice Chief of Army Staff, the Army Commanders and Adjutant General. The day to day management of AWHO is run by its Managing Director, who is an officer with requisite experience (serving/retired) in the rant of Lt. General or Major General of the Army.
Before we go further into the merits of the instant case, it would be essential to discuss here whether in the light of above stated contentions of OP about AWHO, can it claim total immunity for any wrong doings or inefficiencies or negligence or deficiency in service, whether intentional, or unintentional, on its part or on the part of its officials. As a project developer, can it delay the project(s) unreasonably without any accountability and answerability and compensation to the allottees, unless it establishes beyond reasonable doubt that such delay was on account of force majeure causes or reasons beyond its control and whether on account of its claim of working on 'no profit no loss basis', demand unreasonable enhancement in price of units from the one promised at the time of booking, can it pass on the burden of its inefficiencies/negligence or those of its officials to the allottees, especially when by its own admission such allottees happen to be armed forces personnel, serving as well as retired, war widows and members of battle casualty. In our considered opinion, such bodies like AWHO, notwithstanding their character of being a non-profit oriented organisation, being managed and supervised by senior army officers, many of whom have vast experience and technical expertise in the area, must show much higher standards of performance and efficiency and come true to the expectations of their clientele group by ensuring proper project planning and execution without unreasonable cost and time overruns and set an example for other similar construction agencies/bodies in civil government system as well as developers in the private sector. In fact issues relating to liability of AWHO to pay compensation to its allottees in some of its projects at different locations came up for consideration of this Commission in various cases, some of which went in appeal before the Hon'ble Supreme Court. It was held in these cases that AWHO is liable to pay delay compensation to its allottees where it could not deliver the possession as per the stipulated/committed timelines and could not establish that such delays were attributable to force majeure reasons. Some of these cases are briefly stated below:-
(i) First Appeal No. 2013 of 2018, Managing Director, AWHO and Anr. Vs. Brig. Pradeep Kumar Kaushik (Retd.) and connected matters decided on 16.03.2023 in which orders of State Commission ordering compensation for delay in project completion/delivery of possession was upheld, with a partial modification in the rate of interest.
(ii) R.P. No. 167 of 2017, Managing Director, AWHO and Anr. Vs. Lt. Col. Ranjit Singh (Retd.), decided on 15.11.2022 vide which orders of State Commission ordering delay compensation was upheld (with partial modification in rate of interest).
(iii) Although in CC 221 of 2021, Major Sandeep Vinayak and Ors. Vs. AWHO & Ors., which was dismissed by single Member of this Commission on 06.06.2022 holding that complainants are not entitled for delay compensation, considering inter alia that AWHO is working on 'no profit no loss' basis and is not a profit making organisation etc., in appeal which was preferred by several complainants, Hon'ble Supreme Court in Civil Appeal No. 8251 of 2022 decided on 12.12.2022, modified the above stated order of this Commission and directed that the appellants (complainants) be paid a sum of Rs.2.0 lakh each by respondents (AWHO) towards lump sum compensation for the delay in handing over the possession. Of course, it was observed by the Hon'ble Supreme Court that present order is passed in the peculiar facts and circumstances of this case and same may not be cited as precedent.
iv In RP No. 1982 of 2014 titled Lt.Col. Ajmer Singh (Retd.) Vs. Adjulant General and Ors. decided on 16.02.2015, orders of State Commission were set aside and complainants were granted delay compensation @15% interest. The SLP and subsequently Review Petition filed by AWHO against the said order was dismissed by Hon'ble Supreme Court vide orders in SLP NO. 15118 to 15122 of 2015 dated 06.04.2016 and 11.08.2016 respectively. Thus the division bench decision of this Commission in Lt.Col. Ajmer Singh (supra) attained finality.
v. It was observed by this Commission in Brig. Pradeep Kumar Kaushik (Retd.) (supra) and connected cases that 'decision of this Commission in Major Sandeep Vinayak (supra) is per incuriam because earlier decision of division bench of the Commission in Lt. Col. Ajmer Singh (Retd.) (supra) was neither referred to nor discussed by Ld. Single Member.
It was held by the Hon'ble Supreme Court in Ghaziabad Development Authority Vs. Balbir Singh (2004) 5 SCC 65 "The Consumer Protection Act, 1986 has a wide reach and the Commission has jurisdiction even in cases of service rendered by statutory and public authorities. Such authorities become liable to compensate for misfeasance in public office i.e. an act which is oppressive or capricious or arbitrary or negligent provided loss or injury is suffered by a citizen. The Commission/Forum must determine that such sufferance is due to mala fide or capricious or oppressive act. It can then determine the amount for which the authority is liable to compensate the consumer for his sufferance due to misfeasance in public office by the officers. Such compensation is for vindicating the strength of the law. It acts as a check on arbitrary and capricious exercise of power. It helps in curing social evil. It will hopefully result in improving the work culture and in changing the outlook of the officer/public servant. No authority can arrogate to itself the power to act in a manner which is arbitrary. Matters which require immediate attention should not be allowed to linger on. The consumer must not be made to run from pillar to post. Where there has been capricious or arbitrary or negligent exercise or non-exercise of power by an officer of the authority, the Commission/Forum has a statutory obligation to award compensation. If the Commission/Forum is satisfied that a complainant is entitled to compensation for loss or injury or for harassment or mental agony or oppression, then after recording a finding it must direct the authority to pay compensation, and also direct recovery from those found responsible for such unpardonable behaviour. Where there is a specific finding of misfeasance in public office, compensation for mental agony can be granted."
xxxxx In view of foregoing discussion and keeping in view various judgments of this Commission and Hon'ble Supreme Court, We are of the view that AWHO is liable for its actions of poor project management leading to project's cost and time overruns unless it establishes that delay in project completion and delivery of possession was on account of force majeure causes and/or reasons beyond its control and for any unreasonable delay on the part of AWHO, the allottees shall be entitled to claim delay compensation. In the subsequent paras, we will discuss the rival contentions of the parties on the issues raised by complainants and reliefs sought in the complaint as well as contentions of OP on merits in the facts and circumstances of present case.
xxxxx Other contentions raised by OP OP argued that present complaint filed under section 12(1) (c) is not maintainable. The project comprises of total 400 dwelling units. However, apart from the Complainant Brig. J.S. Dharmadheeran, no other Complainant came forward. Two Applications for Impleadment were filed during the pendency of the Complaint, however, these Impleaded Complainant (Col. Manoj A.R., Indu S/o Sreedharan Nair) never came after filing the applications. They were also not present at the time of Final Arguments. This matter does not have the character of a class action. Hon'ble Supreme Court in the Judgment of Brigade Enterprises Limited Vs. Anil Virmani (2022) 4 SCC 138 has clearly held that that persons having distinctive interest and claim cannot be clubbed in a petition under Section 12(1)(c) (Section 35(1)(c) under the 2019 Act). In so far as the sole Complainant is concerned, this complaint is not maintainable for lack of pecuniary jurisdiction of the Hon'ble National Commission. The sale consideration for the Row House allotted to the sole Complainant was Rs. 46,08,500/-, even after inflating the claim with interest at the rate of 18%, compensation of Rs. 10,00,000/-, notional rent of Rs. 7.20 Lakhs and refund of Rs. 2.95 Lakhs, the claim does not cross the pecuniary limit of Rs. 1 Crore.
The complainant on the other hand argued that the issue of maintainability of the Complaint as well as the class action under section 12(1)(c) was decided by the Hon'ble Commission vide order dated 11.10.2017 by dismissing the application IA/8890/2017 filed by the OP. The order has attained finality and there can be no interference with the said order. Brigade Enterprises (supra) is not applicable to the facts of the present case for two reasons:- (i)The sameness of interest of class members is specifically pleaded in para 2 of the Complaint. Also, there are specific pleadings on behalf of class in the complaint. The prayer is also on behalf of all class members.(ii) The class representative filed declarations by way of affidavit on behalf of as many as 29 class members (18 class members vide diary number 32251 on 04.08.2017 and by 11 class member vide diary number 38955 on 19.09.2017) covering all possible types of dwelling units in the project. The same were taken on record vie order dated 11.10.2017 by allowing the application IA 14193/2017.
24. The unit in question was booked vide letter dated 20.04.2010, the tentative cost of the unit was Rs.41,30,000/-, subsequently the cost was cost was enhanced to Rs.44,65,265/-, the complainant paid Rs.41,30,000/- till 14.11.2003, additional / enhanced amount of Rs.3,48,302/- was not paid, OP due to non payment of balance amount cancelled the allotment vide letter dated 20.10.2014 and issued a refund cheque on 24.06.2015 for Rs.40,54,401/- which was declined by the Complainant. Subsequent RTGS was also declined, hence OP have kept the said amount in fixed deposit with a bank since 06.10.2015 which will now mature on 05.01.2025 with maturity amount of Rs.67,67,800/- ( Rs.40,54,401/- principal amount and Rs.27,13,399/ interest amount. OP has no objection in releasing this amount to the Complainant. It is the case of the OP that out of unpaid balance of Rs.5,14,865/-, a sum of Rs.1,79,600/- was paid by Complainant no.1 on 24.04.2013 and balance cost of Rs.3,35,265/- with interest thereon w.e.f. 23.05.2013 was still outstanding. The complainant no.1 was repeatedly asked to pay the balance payment and furnish the mandatory legal documents ( affidavit, undertaking and photographs duly executed / attested ) to facilitate the handing / taking over of the DU ( dwelling unit ) allotted to him. However, complainant no.1 neither paid the balance amount nor submitted the required legal documents in terms of conditions of allotment for handing over the physical possession of the dwelling unit to the allottees. Hence the said dwelling unit no. P-5-56 at Yelahanka Part A ( Vasanth Vihar) Project at Bangalore was cancelled on 24.10.2014 in terms of para 52 of the terms of allotment as contained in the Master Brochure of OP and deposit amount of Rs. 40,54,401/- was refunded on 24.06.2015 through cheque, which was not accepted, hence sent to him through RTGS on 24.09.2015, which too was refused, hence the amount was kept in the fixed deposit.
25. Complainant have contended that they have agreed to be shifted to Bangalore project because OP was not in a position to allot and they were at wait list 22 at OP's Sector 82 Noida Project. OP have not received the mandatory completion and occupation certificate till today. OP did inexplicable cost escalations. For delay on the part of the OP in completing the project, Complainant is not responsible, therefore, he is not required to pay the escalation charges due to such delay. As per section 3 (2) (f) of Karnataka Act, 1972, the escalation cost is required to be borne by the builder. OP wanted the Complainant to take possession of the allotted house without mandatory completion certificate / occupation certificate after paying additional amounts, OP are not justified in escalating the dwelling cost from Rs.14.7 lacs in mid 2004 to Rs.44,65,265/- by March 2013, the cancellation of the dwelling unit on grounds of non-payment of balance amount was illegal and untenable. As per provisional letter dated 14.10.2004, the projection completion period was 3 years i.e. by 14.10.2007 with additional grace period upto 31.12.2007. OP applied for first time to project sanctioning authority (BIAAPA on 14.01.2000 after collecting 31% of the dwelling unit cost. OP did not have the sanction to advertise the project in 2004. It was only on 10.09.2009 that OP got the Ist of the two commencement certificate for construction on 60% site and complainant's unit was not in this, it was only on 28.11.2013 that complainant's construction site was released. It is contended by the complainant that OP were to perform the contract within the reasonable period of 3 years from the date of agreement, when a party sustains loss by reason of breach of contract, the damages are to be granted so as to place the suffering party in the same position as if the contract had been performed, hence the damages other than consequential loss have to be measured at the time of the breach.
26. The contention of OP that this Commission lacks pecuniary jurisdiction is not valid. Under Section 21 of the Act, Commission has the jurisdiction where value of goods and services and compensation, if any, claimed exceeds Rs. one crore. In the present case, value of goods and services and compensation claimed by complainant in the complaint exceeds Rs.One Crore. Hence, this Commission has the pecuniary jurisdiction. The contention that complainant is not a consumer and it is not consumer dispute as he has purchased the unit for commercial/investment purposes is also rejected as no such evidence has been adduced by the OP(s) in this regard. It has been observed by this Commission in various cases (Kavita Ahuja Vs Shipra Estates Ltd, CC 137 of 2010, decided on 12.02.2015, Santosh Johri Vs M/s Unitech Ltd, CC 429 of 2014 and connected Cases, decided on 08.06.2015, Aloke Anand Vs M/s Ireo Grace Pvt Ltd & Others, CC no 1277 of 2017 decided on 01.11.2021) that purchase of a house can only be for a commercial purpose if the purchaser is engaged in the business of purchasing and selling houses or plots on a regular basis, solely with a view to make profit by way of sale of such houses, if the house is purchased purely as an investment and the purchaser is not undertaking the trading of houses on regular basis, then it would be difficult to say that he had purchased it for commercial purpose. The plea of OP that delay was due to reasons beyond their control is not valid as even after a gap of more than 7 years from the original likely completion date, this project was not completed and, possession of flat has not been given. There is no documentary evidence to support the contention of the Opposite Parties that the reasons pleaded by them, can be construed as 'Force Majeure. As regards OP's objection that complainant no.2 has no locus to file the present complaint as there is no privity of contract by and between the OP Society, it is admitted by OP that complainant no.2 is the nominee in the application qua allotment of the unit by OP in favour of complainant no.1. Hence, there is no merit in the contention of OP that complainant no.2 has no locus to file present complaint. In any case, the complaint has been filed jointly by complainant no.1 and complainant no.2 and we are ordering refund / payments as per this order to complainant no.1 directly. Hence, this objection will have no relevance.
27. We have gone through the Master Brochure July 87 ( as amended upto May 2014, as placed on record by the parties. Extract of relevant portion of the brochure is reproduced below :
Plans and Specifications
17. Plans and specifications will generally be drawn up to conform to the type of dwelling units indicated above. These will conform to the statutory regulations/bye- laws laid down by the civil authorities and the same shall have their approval. It will take into account specifications generally required by common engineering/local practices. Proper use will be made wherever possible to incorporate materials as per Indian Standards and as per local availability. These plans and specífications will generally be indicated through a Technical Brochure along with the Booking Letter. Details given in the technical brochure are only a guide and may be varied for individual stations to suit architectural, climatic, design requirements and availability of material during the planning and execution of the housing project.
Technical Brochure
18. Technical Brochure is issued along with the Booking Letter indicating all important details pertaining to construction. By and large, attempts will be made to adhere to the plans and specifications given in the Technical Brochure, but some changes may become inevitable and may have to be incorporated as deemed necessary during the planning and execution of the housing project. Allottees will be required to accept DUs as finally constructed.
xxxxx
24. Nomination
(a) Each registrant shall nominate from the following categories only in the space prescribed in the application form:-
(i) Wife/husband
(ii) Son/daughter
(iii) Legally adopted child
(iv) Parents, if the registrant does not have wife/husband, son/daughter or legally adopted child.
(b) Benefits accruing to the nominee from booking/allotment already issued, in respect of a plot or a dwelling unit, as the case may be, shall be transferred to the nominee as a custodian of the allottee's interest and liabilities under these rules. Allotment to the nominee shall however be subject to the provisions of Rules 10 and 11 of the Master Brochure.
(c) Where booking/allotment of a plot or dwelling unit has not been issued prior to demise of the registrant, the registration shall be transferred to the following categories :-
(i) Widow.
(ii) Anyone of the children/parents (in case the Allottee is unmarried), who is either serving in the Army or is othenbe eligible and fulfils the allotment criteria as specified in rule 12 for that particular scheme announced by AWHO.
(d) To avoid any litigation amongst surviving heirs, it would be prudent that the nominee should be the same person who is the beneficiary under the "Will" if any, executed by the applicant. The "Will" should preferably be registered.
(e) Where nominee fails to fulfill the aforesaid eligibility and allotment criteria, in such a case, the liability of AWHO shall be only to refund the deposits made by the registrant/allottee as the case may be.
xxxxx Change of Station and Type of Dwelling unit
29. Change of station and type of dwelling unit before booking letter is issued to registrants will be permitted throughout the year. After first change applied and accepted by the AWHO, the second change for the same applicant for a Specific Registration Number will be allowed only after six months of first change.
xxxxx Combined Schedule of Payments i.e. Part cost and Construction Cost
34. Generally the Schedule of Payments will be as under :
Instalments Percentage Due Date 1st 20% cost of DU 3 months from the date of booking letter 2nd 20% cost of DU 6 months from the date of booking letter 3rd 20% cost of DU 12 months from the date of booking letter 4th 20% cost of DU 18 months from the date of booking letter 5th 15 % cost of DU 24 months from the date of booking letter 6th 5% Cost of DU plus escalation if any and cost of parking 3 months before possession of DU.
xxxxx Booking Letters
38. The Booking Letter will indicate the tentative cost of dwelling units. The exact cost of the dwelling unit will be indicated through the statement of account on allotment of the specified unit. Final cost of same type of units in same general area may vary due to price differential on account of compound areas for ground floor, terraces / balconies for upper floors as also preferential locations like corner plots or flats overlooking gardens etc or any other inter-se benefits.
xxxxx Changes in Payment Schedule
40. Though every effort will be made to indicate the price of dwelling units as accurately as possible but due to market trends and general escalation in the prices, the final cost may vary. In that case, the difference may be recovered / refunded through a separate intimation. Adjustment in payment schedule may be necessitated, commensurate with the progress of construction.
Xxxxx Termination of Registration / Allotment
52. The management reserves the right to terminate the registration of allottees and cancel their booking / allotment without any notice for any of the following reasons :-
a. In case of default in schedule of payment beyond 30 days. b. In case of non submission of mandatory legal documents i.e. affidavit, undertaking, special power of attorney and Photographs etc. within 120 days from the date of letter giving offer of possession to the allottee. c. In case of non-taking of the DU beyond 120 days from the date of issue of clearance letter of the DU.
Note - In such cases the refund of deposits will be processed under paras 47 to 50.
xxxxx When Entitled
68. An allottee shall be given possession of his/her dwelling unit given in the Allotment Letter only on completion of the following:-
(a) Has paid all dues demanded.
(b) Has paid service charges if any.
(c) Has submitted the required affidavits.
(d) Has complied with all the Rules and Regulations of the Organisation.
(e) Has paid all dues, as on the date of possession, of the loaning agencies in case he/she has taken loan from any loaning agencies and has insured the dwelling unit against fire etc.
(f) Has become a member of User's/Maintenance Society of Allottees
(g) Has given an undertaking that any future demand for marginal adjustment in development cost, court/arbitration awards etc. will be honoured.
69. Organisation may at its discretion, on a written request from the Allottee give possession on such conditions as it may stipulate before instruments of transfer are executed and registered.
xxxxx Delay in handing over of the Dwelling Unit
74. No compensation will be paid by AWHO to the allottee in case handing over of a dwelling unit is delayed for the reasons beyond the control of AWHO.
28. We have carefully perused various documents. Complainant no.1 in February 2004 had applied for a housing project of OP in Sector 82 Noida. On 29.07.2004 he applied for a change from Noida to Bangalore. Vide letter dated 18.08.2004, OP allowed complainant no.1 change of station / type of dwelling unit before issue of booking letter from Noida Sector 82 to Bangalore and type of accommodation from Economy Apartment to DSU - 300 sq.yds. Booking letter is dated 14.10.2004 as per which Complainant no.1 keeping in view his eligibility and seniority based on draw held on 23.09.2004 and in accordance with rules laid down in Master Brochure-July 87, ( as amended ) was booked for Duplex Single Unit on 300 sq. Yds at Bangalore. As per this letter, the pre-assessed tentative cost of the allotted dwelling unit ( DU ) including the land cost share but excluding the cost of car / scooter parking and escalation was mentioned as approx.. Rs.14,79,000/-. This letter stated that tentative cost of the DU may have to be revised if necessary after tender action is completed and contract is accepted. It further states that the project is likely to take 3 years. Since AWHO ( OP) is operating on self financing basis, the registrants eligible for allotment should pay the instalments towards part cost of the project. The payment schedule towards part cost was follows:
Part Cost
35. In projects where substantial amount of funds towards part cost have been invested by the AWHO, the share of allottees towards the part cost may be recovered prior to the commencement of construction as under :-
Instalment Percentage Due Date Ist 34% of Part cost ( less registration amount) 2 months from the date of Booking Letter 2nd 33% of Part Cost 4 months from the date of Booking Letter 3rd 33% of Part Cost 6 months from the date of Booking Letter The letter further states construction plan is under finalization. The balance cost of DU along with payment schedule will be intimated later on. The Complainant contends that this booking was sent without Technical Brochure, as warranted under Para 18 of Master Brochure ( reproduced in preceding paras). This letter contains provisions for incentives of 1% rebate on amount of instalment if payment is made in full by due date or earlier. The letter contains provisions for extension of time to deposit instlments with interest @ 10%. This letter states that a statement of account will be issued after allotment of specific DU and on finalization of cost of construction at that stage. Final cost will be intimated when all claims / bills of contractors, suppliers and statutory authorities are received and consequently accounts of the project are reconciled, audited and closed. The complainant claims to have paid the Ist instlment on 07.01.2005 ( against due date of 17.01.2005) and second instalment on 05.04.2005 ( against due date of 18.04.2005). Hence, OP collected 31% of DU by 05.04.2005 without disclosing any information / details of the house.
29. Complainant further contends that OP revised the planning of project, named as Yelahanka Project A and B and on 16.12.2005 for the first time indicated site area as 1520 sq. yds. and also revised the cost from Rs.14,70,000/- to Rs.18,90,000/- ( 29% increase). On 10.09.2009, BIAAPA released only 60% construction site and Complainant's site was not included in it. OP issued a second Booking letter dated 20.04.2010 stating that contract for Yelahanka Part A ( 50 acre plot) has been accepted and work has commenced and it has been decided to allot DUs to allottees as per their seniority in the project. The details of construction and tentative cost were intimated vide this letter as approx.. super area 1545 sq.ft, tentative cost Rs.41.30 lacs ( only GF). This letter states that if Complainant opts to withdraw from the schemed due to revised cost, no penalty shall be charged except 2% handling charges on registration fee and non refundable application fee. 60 days time was given to withdraw from the scheme as thereafter it will be governed under para 47 of the Master Brochure and allottee will be liable for forfeiture. Following payment schedule was given as per this letter :
"5. As intimated the tender of the project has been accepted and construction has since commenced. Accordingly, you are required to remit further payments towards the construction cost of Duplex Single Unit on 300 SQYD at Bangalore ( Yelahanka) project as under
Tentative cost including part cost Amount already paid Balance to be paid Including registration Amount with AWHO and Interest thereon Rs.41,30,000/- Rs.4,55,750.00 Rs.36,74,250/-
PAYMENT SCHEDULE : CONSTRUCTION COST Instalment No. Type of Payment Amount ( Rs.) Due Date 1 20% of Construction Cost 7,35,000/-
20 Jul 2010
2.
20% of Construction Cost 7,35,000/-
18 OCT 2010
3. 20% of Construction Cost 7,35,000/-
12 APR 2011
4. 20% of Construction Cost 7,35,000/-
11 OCT 2011
5. 15% of Construction Cost 5,51,000/-
12 APR 2012
6. 50% of construction cost plus escalation as indicated in statement of account and any other additional cost 3 months before possession date and will be intimated later.
This letter states details of DU will be intimated later after the computerized draw is held on completion of the project. Letter contains certain incentives for payment, extension of time etc. As per this letter, probable date of completion is December 2012. As per the draw held on 07.02.2013, Complainant got dwelling unit no. P5-56 with parking area PP-P5-56 and an allotment letter dated 01.03.2013 was issued by the OP informing about allotment of DU P5-56 with paring PP-P5-56. Time to pay last instalment was 22.05.2013.
30. As per statement of accounts, as on 25.02.2013, balance amount payable was shown as Rs.5,14,865/- with rebate of Rs.4500/- if amount is paid on or before 22.05.2013. As per statement of accounts dated 14.11.2013, the balance payable is shown as Rs.3,48,302/-. Extract of this letter is reproduced below :
SETTLEMENT OF ACCOUNTS FLAT / NO. P5-56 PROJECT : PART 'A' (VASANTH VIHAR)
1. Reference Statement of Accounts dated 25-FEB-13 in respect of your P5-56 Block / Floor No. ASP/A.
2. A sum of Rs.514865 was to be paid by you as per the statement of account by 22-MAY-13. On review of your account held with us, it is seen that as on date you have to still pay Rs.348302 as per details below :-
3. Amount Due 514865
(a) Amount due as per FSA
(b) Amount due on account of interest @ 10% on From To Days Interest On Rs. 270369 22-MAY-13 14-Nnov-13 176 13037 On Rs.
On Rs.
On Rs.
( c) Total amount due :- Rs. 527902 4. ( a) Amount received 24-APR-13 179600 After issue of FSA ( b) Total Rs. 179600 ( c) Amount still to be paid by Your ( Para 3 ( c) minus 4 ( b) Rs. 3,48,302
5. You are, therefore, required to remit Rs.348302 by Demand Draft in favour of MD, AWHO drawn any nationalized bank in Delhi to enable us to issue final clearance for taking over of your flat.
Note : Add intt.10% onRs.270369 from 14 Nov 13 to till Paid @ Rs.74.07 per day. Please clear the dues immediately
31. This was followed by letter dated 20.12.2013 from OP to Complainant, which is reproduced below :
AWHO SCHEME : BANGALORE, YELAHANKA PART 'A' (VASANTH VIHAR)
1. Reference our letter EOF/DS3/98301/Ar/Bangalore/2004 dated 10 Mar 2013 ( instruction for Handing / Taking over of dwelling units ( DUs)
2. Mandatory legal documents ( Affidavit, undertaking and photographs) duly executed / attested as asked for vide Para 8 and 11 of our letter under reference and balance payment as intimated vide the statement of account / our e-mail dated 03 Sep 2013 have not yet been received.
3. Delay in payment / submission of mandatory documents has the following implications :-
( a) Loss of rebate on timely payment. (b) Levy of interest @ 10% per annum on the outstanding instalment / amount for the delayed period. ( c) Recovery of care-taking charges.
4. In addition to the above, the defect liability period will end on 31 Mar 2014. Therefore, it is your interest that you take over the DU earliest.
5. You are once again requested to make the balance payment and submit the mandatory documents as mentioned above, at the earliest to facilitate us to issue the clearance ( letter for handing / taking over the possession of your DU No.P5-56 at our Bangalore ( Yelahanka Part 'A') project
32. On 28.11.2013, BIAAPA issued second commencement certificate releasing balance 40% sites. Vide letter dated 20.10.2014, OP cancelled the said allotment and terminated the registration under Rule 52 of the Master Brochure. Extract of this letter is reproduced below :
CANCELLATION OF BOOKING / ALLOTMENT ; BANGALORE YELAHANKA PART 'A' (VASANTH VIHAR) PROJECT Please refer the following-
(a) Our e-mail dated 01 Apr 2014,
(b) Our letter No EOF/DS3/98301/AR/BGY/2004 dated 14 Jul 2014.
(c) Our letter No EOF/DS3/93301/AR/Bangalore/2004 dated 08 Aug 2014.
2 Inspite of repeated request / reminders you have not paid the balance payment (due date of payment was 22 May 2013) and not submitted the mandatory documents.
3: In view of above, your allotment of DSU 300 Sq Yds dwelling unit (DU) No P-5-56 alongwith Porch Parking No PP-P5-56 at Bangalore, Yelahanka Part 'A' (Vasanth Vihar) project is hereby cancelled and registration terminated under Rule 52 of AWHO Master Brochure-Jul 1987 (as amended).
4. While we will be trying to refund your deposits less permissible deductions as shown below under Rule 47 to 50 of AWHO Master Brochure - Jul 1987 (as amended) as early as possible, please do bear with us for a maximum period of six months :-
(a) Application Fee Rs 500.00 (b) Withdrawal Penalty Rs 20,000.00
( C) Interest on delayed payment of installment (s) @ 10% % per annum for delayed period as applicable period (as applicable).
5. We assure you that the matter of early refund within the stipulated period will be priority consideration with us and no reminder shall be necessary.
33. We have also perused other communications between the parties. Vide communication dated 24.01.2014, OP informed the complainant no.1 'completion certificate for the project and your dwelling unit ( DU) cannot be issued as on date'. Extract of relevant portion of this communication is reproduced below :
2. Completion certificate for the project and your dwelling unit (DU) cannot be issued as on date. In this connection, it is brought out that as per official procedure for plotted colony, on completion of 60% Dus and common area, the balance 40% plots are released. These 40% plots have been released recently and DU wise completion for these have to be applied for. On receipt of DU wise completion for all DU's, AWHO will apply for completion of the project.
xxxxx
4. You are once again requested to make the balance payment and submit the mandatory documents as mentioned above, at the earliest to facilitate us to issue the clearance letter for handing / taking over the possession of y our DU No. P5-56 at our Bangalore ( Yelahanka Part 'A) project. Your attention is also invited to Chapter VII i.e. possession of Dwelling Units of the AWHO Master Brochure - Jul 1987 ( as amended) which shall be binding.
34. From the above communication, it is clear that OP was offering possession to the Complainant without having a valid completion certificate for the project / DU in question. This is evident from their communication dated 27.02.2014 wherein they informed the complainant that almost all the allottees of the project have since taken over the possession of their respective DUs. Possession / offer of possession without a valid completion certificate / occupation certificate of the competent authority is not a valid possession / offer of possession and constitutes a deficiency in service and unfair trade practice on the part of OP. Such violations are not expected from a builder like OP who happens to be a society administered by senior officers of the defence forces. It was held by Hon'ble Supreme Court in Wg. Cdr. Arifur Rahman Khan and Aleya Sultana and Ors. vs DLF Southern Homes Pvt. Ltd.& Ors.(2020) 16 SCC 512, "failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within the contractually stipulated period, amount to deficiency". It was held by Hon'ble Supreme Court in Bangalore Development authority Vs Syndicate Bank (2007) 6 SCC 442 and Fortune Infrastructure Vs Trevor D' Lima (2018) 5 SCC 422 "Home buyers cannot be made to wait for position of the flat for indefinite period". It was held by Hon'ble Supreme Court in Wg. Cdr. Arifur Rahman Khan ( supra)....jurisdiction of the consumer forums to award just and fair compensation as an incident of its power to direct the removal of deficiency in service is not constrained by terms of a rate which is prescribed in an unfair bargain. "The word "Compensation" is of a very vide connotation. It may constitute actual loss or expected loss and may extend to compensation for physical, mental or even emotional suffering, insult or injury or loss. The provisions of CPA enable a consumer to claim and empower the commission to redress any injustice done". compensation in excess of that stipulated in the agreement- grantable, where the stipulated compensation is unreasonable, one-sided and unfair". "held, the court and the consumer forums must take a robust and common sense based approach by taking judicial notice of the fact that flat purchasers obtain loans and are required to pay EMIs to financial institutions for servicing their debt- thus the award of compensation has to be based on a finding or loss of injury and must corelate to it" further, clarifying the ruling in D.S. Dhanda (2020) 16 SCC 318, held "there is no absolute embargo on the award of compensation beyond the rate stipulated in the flat buyers agreement where handing over of the possession of a flat has been delayed". In Ireo Grace Realtech Pvt Ltd Vs Abhisek Khanna and Ors (2021)3 SCC 241 Hon'ble Supreme Court held "Developer is obligated to pay delay compensation for period of delay which has occurred from due date of handing over possession till date of offer of possession was made to the allottees".
35. Extract of communication dated 31.03.2014 from OP to Complainant is reproduced below :
To: Lt Col Rakesh Bansal
1. Reference various e-mails forwarded by you to AWHO 2 In view of the large quantum of time and effort that was being expended in voluminous correspondence from just one single allottee; legal opinion was sought on how to address the issue.
3. The legal advice offered included the following:-
(a) The allottee be advised to refrain from infructuous correspondence
(b) To examine any document, the allottee may visit HQ AWHO after fixing an appointment.
(c) The allottee be advised to comply with all such formalities as are required in terms of AWHO Master Brochure before taking over the possession of his allotted dwelling unit (DU) No 56 in Pocket - 5 of Bangalore, Yelahanka Part 'A' (Vasanth Vihar) project, failing which consequences may follow as are provided in AWHO Master Brochure will Love to be undertaken
4. It is again highlighted that you have not yet paid the balance payment (due date of payment was 22 May 2013) and not submitted the following mandatory documents duly executed / attested, within 120 days from the date of letter giving offer of possession to the allottee ie, the instruction for handing / taking over the dwelling unit issued to you on 01 Mar 2013 -
(a) Affidavit
(b) Undertaking
(c) Two photographs
5. Due notice of the above may please be taken and the needful done at fo earliest, failing which the AWHO would be constrained to cancel the allotment of you above mentioned DU in accordance with Para 52 of above Master Brochure.
It is not understandable how the correspondence from Complainant can be classified as 'infructuous by the OP when issues of Complainant still remains to be resolved.
36. OP wrote to Complainant vide their letter dated 08.08.2014 as follows :
1 Reference Para 11 of our letter dated 10 Mar 2013 (Instruction for Handing / Taking over of dwelling units (DUs)) and our e-mail dated 31 Mar 2014 and letter dated 16 Jun 2014 and 14 Jul 2014.
2 Mandatory legal documents (Affidavit. Undertaking and two photographs) duly executed/ attested as asked for vide Para 8 and 11 of our letter dated 10 Mar 2013 anc balance payment as intimated vide the statement of account has not yet been received.
3 It has been decided by AWHO Management to complete the handing / taking over process of all remaining DUs of Bangalore, Yelahanka Part 'A' (Vasanth Vihar) project by 10 Sep 2014. Therefore, please make the balance payment and submit the document as mentioned at Para 2 above by 25 Aug 2014, to facilitate us to issue the Clearance letter for handing / taking over the possession of your DU, and ensure the taking over of DU by 05 Sep 2014, without any further delay Thereafter, the following will be effected
(d) Deterioration of DU AWHO will not be responsible for any defect deterioration of your DU and will not provide any further maintenance / defer rectification
(e) Care taking charges. As intimated vide Para 14 of the landing / taking over instructions quoted above
(f) Recovery of Rs 2,500/- per month by the Residence Welfare Association (RWA), as monthly maintenance charges.
6. Termination of registration and cancellation of allotment under Para 52 of AWHO Master Brochure - July 1987 ( as amended ) after 10 Sep 2014 without any further Notice, may be initiated and processed. Therefore, please accord TOP PRIORITY, in your own interest.
37 This letter was followed by cancellation letter dated 20.10.2014 which has already been reproduced in the preceding paras. Thereafter, OP wrote to Complainant vide letter dated 14.10.2015, which is extracted below :
CANCELLATION OF BOOKING AND REFUND BANGALORE, YELAHANKA PART 'A' (VASANTH VIHAR) PROJECT
a) HQ AWHO letter No EOF/DS3/98301/AR/Bangalore/2004 dated 01 Ma 2013 (Instruction for handing/taking over of dwelling unit (DU) alongwith statement of account).
(b) HQ AWHO e-mail dated 03 Sep 2013.
(c) HQ AWHO No EOF/DS3/98301/AR/BGY/2004 dated 14 Nov 2013.
(d) HQ AWHO letter No EOF/DS3/98301/AR/BGY/2004 dated 20 Dec 2013.
(e) HQ AWHO e-mail dated 24 Jan 2014.
(f) HQ AWHO e-mail dated 28 Feb 2014.
(g) HQ AWHO e-mail dated 01 Apr 2014.
(h) HQ AWHO e-mail dated 17 Apr 2014.
HQ AWHO letter No EOF/DS3/98301/AR/BGY/2004 dated 21 Apr 2014.
(k) HQ AWHO letter No EOF/DS3/98301/AR/BGY/2004 dated 14 Jul 2014 an e-mail dated 15 Jul 2014.
(1) HQ AWHO letter No EOF/DS3/98301/AR/Bangalore/2004 dated 08 A 2014.
(m) HQ AWHO letter No EOF/DS3/98301/AR/BGY/2004 dated 20 Oct 2014.
(n) Your e-mail dated 27 Oct 2014,
2. Despite repeated requests/ reminders as mentioned above, you had neither paid the balance amount as intimated vide AWHO letter No EOF/DS3/98301/AR/BGY/2004 dated 14 Nov 2013 nor submitted the mandatory documents (Affidavit, Undertaking and Photographs) duly executed / attested as asked for vide our Para 8 and 11 of letter (Instruction for handing / taking over of dwelling unit (DU) referred at Para 1 (a) above) to facilitate us in issuing Clearance Letter for handing over the possession of DU No P-5-56 at Bangalore Yelahanka Part 'A' (Vasanth Vihar) project, allotted to you. Therefore, your allotment of above DU had been cancelled and registration terminated on 20 Oct 2014, under the provisions of Para 52 of AWHO Master Brochure - Jul 1987 (as amended).
3. Your financial liabilities and dues were thereafter worked out for carrying out necessary refund to you. Refund Cheque of Rs 40,54,401.00 sent vide Registered Post No RD520034364IN dated 16 Jul 2015 was refused to be accepted. Therefore, an amount of Rs 40,54,401/- had been remitted to your account No 0616000300210601 with PNB, Dehradun by RTGS on 24 Sep 2015. Your statement of account showing details of amount refunded under cover of HQ AWHO letter of even number dated 28 Sep 2015 was also intimated vide e-mail dated 28 Sep 2015.
4. It is noted that an amount of Rs 40,54,401/- has now been transferred by you vide RTGS into HQ AWHO Bank Account No 000701247532 with ICICI Bank on 28 Sep 2015.. Please be informed that as your booking with AWHO stands cancelled, the amount has been parked in short term deposit and can be claimed by you as and when you demand.
5. This is for your information.
38. Earlier, OP vide its letter dated 14.03.2007 addressed to Complainant informed the status of the Project. This letter is extracted below :
(DELAY IN COMMENCEMENT OF PROJECT : BANGALORE & YELAHANKA, PART'A')
1. There have been repeated enquiries about the progress of the above project from the allottees. The Demand Survey for the project was done in mid 2002 and the Scheme was opened for Registration in mid 2004, but due to some unavoidable reasons it has not been possible to commence the work on ground.
2. It is brought to the notice of all allottees that Government of India issued an order for Environmental Clearance for large projects from the Ministry of Environment and Forests in 2005. This provision was not applicable earlier, and involved a study of the Environment and Traffic Pattern in the area over a period of minimum three months by a Consultant and preparation of a Rapid Environment Assessment Report which had to be cleared by the Karnataka State Pollution Control Board after advertising in the Local Newspapers and holding a Public Hearing at Site. Thereafter, the report was submitted to the Ministry of Environment and Forests in Jun 2006 and a Presentation for Environment Clearance was given to the Environment Advisory Committee in Nov 06 in which some observations were raised and the Committee advised some changes in the Layout Plan. After incorporating the changes another Presentation was given by the Environment Consultant to the Environment Advisory Committee in Dec 06. Final clearance from the Ministry has been received on 09 Feb 07.
3. It has now been given to understand that Karnataka Government has issued a notification for a Peripheral Road including service roads and green area of approx 50 m width which is passing right through the middle of our 50 acre plot. This is adversely affecting the planning of the project as our project now gets split into two halves. Also lose out on many DUs which fall under the alignment of this road. We have now been asked by the authorities to submit a fresh proposal showing the alignment of this road in our complex. The plans are therefore now being resubmitted, taking the above requirement into account, for approval. All out efforts are however still being made to get the road alignment changed out of our plot area. A case has also been taken up with the Honourable Defence Minister for using his good offices with the Karnataka Govt to shift the road out of AWHO land.
4. In case the Master Plan of the City/Area with the road passing through our plot is not changed, then the number of Dwelling Units in the 50 acre plot will reduce, and it will not be possible to accommodate all registrants in this plot. However, the reduced number of DUs will be adjusted in the 11 acre plot which is nearby to the 50 Acre plot.
5. In view of the above, the allottees may kindly bear with us. The events happening are not within our control and we are doing our best. Notwithstanding the delay, the complex would be a good one inspite of the changes required to be made.
6. As per the latest notification of the Govt the whole area has been declared as an agricultural zone and no more complexes can come up in the area. Hence there will be greenery all around.
7. Inspite of the above if anyone is desirous of pulling out from the project, then no penalty will be charged, except for the mandatory application fee and handling charges, and the money will be returned with interest as applicable.
39. This was followed by letters dated 28.08.2009 and 25.11.2009, 04.03.2010, 20.04.2010, 07.07.2011 which are also extracted below :
Letter dated 28.08.2009 1 Reference your e-mail dated 11 Aug 09
2. The delay in the construction of the project has been made known to the registrants through correspondence as well as through AWHO website on the Internet and Army Intranet. The delay in commencement of the project has been beyond the control of this organisation. However, now the layout plan of Bangalore Yelahanka Part 'A' has been sanctioned by Bangalore International Airport Area Planning Authority and contract action is in hand.
3. The costs of the DUs will be worked out based on the lowest quoted tender after competitive tendering. The work is expected to start by end of this year and further details regarding cost of DUs will he intimated to you after acceptance of the tender.
Letter dated 25.11.2009 AWHO SCHEME : BANGALORE ( YELAHANKA PART 'A')
1. Reference your e-mail dated 10 Nov 2009.
2 Layout plan has since been sanctioned by Bangalore International Airport Area Planning Authority (BIAAPA). Contract action is DSU (300 Sq Yds) at the above project in progress. You are an allottee of DSU ( 300 Sq. Yds.) at the above project.
3. The construction work in the project is likely to commence early next year and tentative PDC will be mid 2012. The cost of the dwelling unit (DU) will be worked out based on the lowest quoted tender after receipt of quoted tenders, and the cost of DU alongwith payment schedule will be intimated accordingly.
4 As regards to the impediments that prevented AWHO to commence the project, the same have been explained in detail in our letter of even number dted 14 Mar 2007 (Photocopy enclosed as Appendix 'A') and also updates in our web page enclosed as Appendix 'B'.
5 As regards to your deposits and interest please refer to Para 43 (e) of AWHO Master Brochure Jul 1987 (as amended). You may also refer to Para 7 of our letter dated 14 Mar 2007 (Appendix 'A').
Letter dated 04.03.2010 AWHO SCHEME : BANGALORE ( YELAHANKA PART 'A') PROJECT
1. Tenders for Bangalore ( Yelahanka Part 'A') project ( 50 Acre plot) have been accepted and the work is likely to commence soon.
2. There is a scope of construction of DSU Type 'A & 'B' ( 400 sq. yds. & 300 sq. yds) in double storey construction as per the following details :
Sl. No. Type Details of Accommodation Approx. Super Area ( Sq.ft.) Tentative Cost (Rs. Lacs) Only G.F. GF + FF 1 DSU Type 'A' ( Double Storey in approx. 400 sq.yds. plot Ground Floor : Living Room, Dining / Lobby, Master Bedroom, Bedroom, Two Toilets, Dress, Kitchen, Staircase, Verandahs, Driveway, Pathway and Porch 1767 48.45 58.10 First Floor : Bedroom, Dress, Toilet, Passage and Terrace 2347 ( excl Terrace)
2.
DSU Type 'B' ( Double Storey in approx. 300 sq.yds. plot Ground Floor : Living Room, Dining / Lobby, Master Bedroom, Bedroom, Two Toilets, Dress, Kitchen, Staircase, Verandahs, Driveway, Pathway and Porch 1545 41.30 49.95 First Floor : Bedroom, Dress, Toilet, Passage and Terrace 2068 ( excl.Terrace)
3. Tentative plans of the DSUs are attached.
4. Please intimate your option as per appendix attached as to whether you prefer DSU Single storeyed or double storeyed. Your option is requested at the earliest but not later than 30 mar 2010. Please forward your option through Fax/e-mail followed by inksigned hard copy by post for our further action. If no option is received by due date, your option will be considered as single storeyed.
Letter dated 20.04.2010 BOOKING LETTER FOR CONSTRUCTION COST : DSU - 400 SQ.YDS ( SS/DS) / DSU - 300 SQ.YDS (SS/DS) / DELUXE APARTMENT / MODERN APARTMENT AT BANGALORE (YELAHANKA)
1. Further to our booking of even number dated 14.10.2004
2. Contract for Yelahanka Part 'A' ( 50 Acres plot ) has been accepted and work has commenced. It has been decided to allot Dwelling Units ( DUs) to allottees as per their seniority in the project.
Letter dated 07.07.2011 AWHO SCHEME ; BANGALORE, YELAHANKA PART 'A' (VASANTH VIHAR) PROJECT
1. Reference e-mail dated 17 Jun 2011 from your wife and nominee Ms K Bansal
2. The required information is given below
(a) The Demand Survey for Bangalore, Yelahanka project (11 Acre plot) had been advertised on 10 May 2002 482 Applicants registered for the scheme during the Demand Survey The scheme was converted to Annual Registration (AR) in Mar/Apr 2003 Only 227 Demand Survey registrants were converted to AR scheme
(b) Meanwhile, AWHO acquired about 50 Acres of land at Billamarnahalli (presently known as Yelahanka Part 'A') and the scheme was re-opened with effect from 15 Jul 2004 vide our advertisement dated 04 Jul 2004. The initial draw for fixation of seniority was held on 23 Sep 2004. 479 Applicants (including you, and the Demand Survey registrants mentioned above) were registered for the scheme by that date. Registrants who had applied on or before 17Jul 2004 (Date of Demand Draft / Date of transfer, as per Para 31 of AWHO Master Brochure - Jul 1987 (as amended)) came in the allotment zone of DSU (400 Sq Yds) at that time. You had come up in the allotment zone of DSU (300 Sq Yds) and Booking letter for Part cost for the same was issued on 14 Oct 2004.
( C) However, the construction works in the project could not be commenced due to the reasons intimated vide our letter dated 14 Mar 2007
(d) The construction works at Yelahanka Part B project (11 Acre plot) commenced in Oct 2008 43 DSU (400 Sq Yds) have been constructed in this project and the same were allotted to the initial registrants in the order of seniority. The construction works of the above dwelling units (DUs) have since been completed and handing / taking over possession of the DUs are in progress.
(e) Construction works at Yelahanka Part A project (50 Acre plot) were commenced in Feb 2010 381 dwelling units (DUs) (167 DSU-400 Sq Yds (DS4), 102 DSU-300 Sq Yds (DS3). 84 Deluxe Apartments (DXAs) and 28 Modern Apartments (MDAs) are under construction at this project and the work is progressing almost as per schedule These Dus were also allotted to the remaining registrants as per seniority The construction works are expected to be completed by Dec 2012
(f) Further, seeing the overwhelming response to Bangalore station, about 30 Acres land was acquired at Whitefield in 2005, 1524 DUs (Apartment type) are under construction at this project. Almost all the DUs (except widow quota) have since been booked. However, the registration is still open against withdrawal / cancellation and is likely to continue till the completion of handing / taking over the possession of all DUs as per the existing policy.
(g) Registration amount (Rs 90,000/- in your case) has attracted interest as per Para 43 of AWHO Master Brochure Jul 1987 (as amended) and the same had been adjusted against the payment of your DU cost In this connection, please refer to Para 3 of our Booking letter dated 14 Oct 2004
(h) Further, projects in Bangalore station will be taken up based on demand and availability of suitable land.
3. Kindly note that as a Rule to safeguard the interest of registrant/allottees, AWHO is not required to correspond or entertain letters/queries from anyone except the registrant/allottee.
40. After careful consideration of all the facts and circumstances of the case, perusal of various documents placed on record by the parties, communications that took place between the parties and rival contentions of both sides, we are of the considered view that OP has delayed the project inordinately. Original likely date of completion was 14.10.2007. While some time runs in such construction project is understandable, delay of more than 7 years in the given facts and circumstances is not justified. Reasons for delay given by OP are not convincing. OP who happens to be a registered society managed by senior officers of defence forces, having vast experience in the field, having executed many such projects in various parts of the country and having many engineers and other technical personnel on its roles, ought to have done a proper project planning and obtained requisite clearances of the competent authorities in time in due observance of legal requirements under the local Acts and Rules and ought to have floated / advertised the project only after completing basic requirements and satisfying itself about the possibility of completing it in a reasonable time frame as per the declared likely date of completion. Further, giving possession / offering possession to be allottees without obtaining requisite completion certificate / occupation certificate is not a valid possession / offer of possession. Although some cost overruns in such projects are understandable, but in the present case, cost escalation was about 190% ( from Rs. 14,70,000/- as per original letter dated 14.10.2004 to Rs. 41,30,000/- as per letter dated 20.04.2010. The complainant no.1 paid Rs.41,30,000 /- out of the finally fixed cost of Rs. 44,65,265/- which constitutes more than 90% only an amount of Rs. 3,48,302/- remained to be paid. In the given circumstances narrated in the preceding paras, Complainant no.1 was justified in withholding the balance payment of Rs. 3,48,302/-. Action of OP in cancelling the allotment on account of non payment of balance amount of Rs. 3,48,302/- and non submission of some documents, in the absence of a valid completion certificate / occupation certificate at the time of offering possession to the complainant was not correct and cannot be sustained. However, the said unit having been cancelled 10 years back, it is not feasible to order possession of this unit to the complainant no.1 and neither a prayer for possession of this unit has been made in the complaint. Hence, at this stage only course of action open is to order refund with interest and reasonable amount of compensation on account of deficiency in service and unfair trade practice on the part of OP and harassment and mental agony undergone by the complainant in all these years. However, we are of the considered view that we cannot award compensation equal to the present cost of similar dwelling unit in Bangalore as has been prayed for. We can only award a just and fair amount of compensation alongwith refund of amount deposited by complainant no.1 alongwith interest it could have earned in the normal course if put in a fixed deposit with a bank.
41. For the reasons stated hereinabove, and after giving a thoughtful consideration to the entire facts and circumstances of the case, various pleas raised by the learned Counsel for the Parties, the Consumer Complaint is allowed/disposed off with the following directions/reliefs: -
(i) The OP (AWHO) shall refund to complainant no.1 the entire principal amount of Rs.41,30,000/- (Rupees Forty One Lakh Thirty Thousand only) paid by complainant no.1 to the OP, alongwith compensation in the form of simple interest @ 12% per annum from the date of each payment till the date of refund on account of deficiency in service / unfair trade practice on the part of OP and mental agony and pain undergone by the complainant in all these years.
(ii) The OP (AWHO) shall also pay a sum of Rs.2.00 lacs as cost of litigation to the complainant no.1..
(iii) The liability of the OPs, who are authorities /officers of AWHO shall be joint as well as several.
(iv) The payment in terms of this order shall be paid within 75 days from today.A period of 75 days has been granted to enable the OP to receive the amount kept in Fixed Deposit from its bank on its maturity date i.e. 25.01.2025 and pay the total amount as per this order by adding balance from its own fund.
(v) In case of failure to make all payments within 75 days as per this order, the amount payable at the expiry of 75 days shall carry interest @ 15% p.a. from the expiry of 75 days till the date of actual payment.
42. The pending IAs, if any, also stands disposed off.
.................................................
(A.P. SAHI, J) PRESIDENT .................................................
(DR. INDER JIT SINGH) MEMBER Annexure-A Details of the Unit and other related details Sr No Particulars
1. Project Name/Location etc Yelahanka Part'A', Bangalore 2 Apartment no DU : P5-56 3 Size (Built up/Covered/Super Area) 300 sq.yds
4. Date of Registration for Noida Project 27.02.2004
5. Date of change of registration from Noida to Bangalore Project 29.07.2004
6. Date of original booking letter 14.10.2004
7. Date of revised booking letter 20.04.2010
8. Date of Draw 07.02.2013
9. Date of allotment 01.03.2013
10. Date of Cancellation 20.10.2014
11. Committed likely date of possession as per booking letter / Allotment letter dated 14.10.2004 03 years i.e. 14.10.2007 (December 2012 as per revised booking letter dated 20.4.2010)
12..
Tentative cost as per booking letter dated 20.04.2010 14.7 lacs as per Ist booking letter dated 14.10.2004 which got increased to 41,30,000/- as per 2nd booking letter dated 20.04.2010
13. Amount Paid Rs.41,30,000/-
14. D/o Filing CC in NCDRC 09.03.2016 ( originally filed) 31.05.2016 (amended complaint)
15. D/o Issue of Notice to OP(s) 31.05.2016 16 D/o Filing Reply/Written Statement by OP 21.07.2016
17. D/o filing Rejoinder by the Complainant(s) 06.04.2017
18. D/o Filing Evidence by way of Affidavit by the Complainant(s) 06.04.2017
19. D/o filing Affidavit of admission/denial of documents filed by Complainant(s) 06.04.2017
20. D/o Filing Evidence by way of Affidavit by the OP 14.07.2017
21. D/o filing Affidavit of admission/denial of documents filed by OP 28.11.2018
22. D/o filing Written Synopsis by the Complainant(s) 20.12.2021, 31.12.2021 and 05.09.2024
23. D/o filing Written Synopsis by the OP 09.08.2021, 12.08.2021 13.08.2021 and 12.08.2024 .........................J A. P. SAHI PRESIDENT ................................................ DR. INDER JIT SINGH MEMBER