National Consumer Disputes Redressal
Suresh Mangal & Anr. vs M/S. Wava Megacity Centre Private Ltd. on 13 October, 2022
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 278 OF 2019 1. SURESH MANGAL & ANR. ...........Complainant(s) Versus 1. M/S. WAVA MEGACITY CENTRE PRIVATE LTD. Registered Office at; A-25, Mohan Co-operative Industrial Estate, Main Mathura Road, New Delhi-110044 ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE RAM SURAT RAM MAURYA,PRESIDING MEMBER HON'BLE DR. INDER JIT SINGH,MEMBER
For the Complainant : Mr. Paban K. Sharma, Advocate
Mr. Pranab Kumar Nayak, Advocate For the Opp.Party : Ms. Tanya Verma , Advocate
Dated : 13 Oct 2022 ORDER
1. Heard Mr. Paban K. Sharma, Advocate, for the complainants and Ms. Tanya Verma, Advocate, for the opposite party.
2. Above complaint has been filed for directing the opposite party to refund the entire amount of Rs.6541000/- along with interest @18% p.a. from the date of deposit till the date of refund, Rs.25 lacs as compensation for loss of opportunity to the complainants, Rs.5 lacs as compensation for mental agony and harassment, Rs.100000/- as litigation cost and any other relief which is deemed fit and proper in the facts of the case.
3. The complainants stated that M/s. Wave Megacity Centre Private Ltd. (the opposite party) was a company registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing project. The opposite party launched a project in the name of "Trucia" at Block 2D, Wave City Centre, Noida, in the year 2011 and made wide publicity. The complainants were in need of residence. On coming to know about the project, they booked a flat on 04.05.2013 and deposited the booking amount. The opposite party issued allotment letter dated 06.05.2013 and executed "Serviced Residences" Allottee Arrangement dated 22.05.2013 in which Flat no.2701 covered area of 2066.03 square feet, @ basic sale price of 7220/- sq. ft. has been allotted to the complainants. As per Clause-5 of this Arrangement, the possession has to be delivered within 48 months with extended period of six months from the date of execution of the arrangement. The payment plan was "Construction Linked Payment Plan". As per demand, the complainants deposited total amount of Rs.6541000/- upto 12.08.2015. Thereafter, the opposite party did not proceed with the construction nor any demand was raised by the opposite party. Then this complaint has been filed on 15.02.2019 for refund of the amount along with other ancillary reliefs.
4. The opposite party filed its written reply on 10.05.2019 in which the material facts relating to the booking of the flat, allotment as well as execution of arrangement in favour of the complainants and deposit made by the complainants have not been disputed. The facts that the construction is neither completed nor occupation certificate is obtained are not disputed. The opposite party, however, took the plea that due to force majeure reason, the construction has been delayed inasmuch as National Green Tribunal vide order dated 11.01.2013 restrained all the builders in Noida and Greater Noida for extracting ground water for the purpose of construction. Although the builder challenged the order of National Green Tribunal before Supreme Court, but their appeals have been dismissed by order dated 18.10.2013. Due to which, the construction has been delayed.
5. The complainants filed Rejoinder Reply, Affidavit of Evidence and Affidavit of Admission/Denial of documentary evidence of Mr. Suresh Mangal. The opposite party filed Affidavit of Evidence and Affidavit of Admission/Denial of documentary evidence of Manoj Kumar Tripathi. Both the parties have filed their short synopsis. In the short synopsis, opposite party has stated that the construction has been completed in the year 2020 and the report has been submitted to RERA on 31.12.2021, but nothing is on record to prove that occupation certificate has not been issued till today.
6. We have considered the arguments of the counsel for the parties and examined the record. As per Clause-5 of the Arrangement, due date of possession has expired in November, 2017. So far as force majeure reason is concerned, the same reason was pleaded by the opposite party in CC 640 of 2018, Ramkrishna Sharad & anr. Vs. M/s. Wave-Megacity Center Pvt. Ltd. decided on 20.09.2019 has not been accepted by this Commission. It is well known that the builders in Noida and Greater Noida are using STV water for construction and not ground water. Supreme Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, (2019) 5 SCC 725, Bangalore Development Authority Vs. Syndicate Bank, (2007) 6 SCC 442, Fortune Infrastructure Vs. Trevor D'Lima, (2018) 5 SCC 442 and Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, 2019 SCC OnLine SC 438, held that a home buyers cannot be made to wait for possession of the flat for unlimited period. In such circumstances, claim of the complainants for refund of the principal amount with interest is liable to be allowed. So far as interest is concerned, the Supreme Court in DLF Homes Panchkula Pvt. Ltd. Vs. D.S. Dhanda, (2020) 16 SCC 318 and Expersion Developers Pvt. Limited Versus Sushma Ashok Shiroor, 2022 LiveLaw (SC) 352, held that interest @9% per annum is restitutory and compensatory both. In Bangalore Development Authority Vs. Syndicate Bank, (2007) 6 SCC 442, held that in the matter of contractual obligation, there is no scope for compensation for mental agony and harassment. As such compensations claimed by the complainants in other head are not liable to be allowed.
ORDER
In the result, the complaint is partly allowed with cost of Rs.50000/-. The opposite party is directed to refund the entire amount deposited by the complainants along with interest @9% per annum from the date of respective deposit till the date of payment, within a period of two months from the date of this judgment.
......................J RAM SURAT RAM MAURYA PRESIDING MEMBER ...................... DR. INDER JIT SINGH MEMBER