National Consumer Disputes Redressal
Anubhav Gupta & 36 Ors. vs Cloud 9 Projects Pvt. Ltd. & Anr. on 7 May, 2024
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 938 OF 2017 1. ANUBHAV GUPTA & 36 ORS. D-701, Krishna Apra residency, Plot No. E-8, Sector - 61, NOIDA-201301 U.P. 2. POOJA GUPTA D-701, Krishna Apra Residency, Plot No. E-8, Sector - 61, NOIDA U.P. - 201301. ...........Complainant(s) Versus 1. CLOUD 9 PROJECTS PVT. LTD. & ANR. 225, Okhla Industrial Estate, Phase - III, NEW DELHI - 110 020. 2. THREE UNIVERSAL DEVELOPERS PVT. LTD., C-23, Greater Kailash Enclave, Part-1, NEW DELHI - 110 048. ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE A. P. SAHI,PRESIDENT
FOR THE COMPLAINANT : MR. UTTAM DATT, ADVOCATE
MS. SONAKSHI SINGH, ADVOCATE
MR.KUMAR BHASKAR, ADVOCATE. FOR THE OPP. PARTY : EX-PARTE VIDE ORDER DATED 31.08.2023
Dated : 07 May 2024 ORDER
This is a Consumer Complaint on behalf of the Flat buyers who were initially 37 in number but with the passage of time and the developments having taken place during the pendency of the Complaint, it appears that the Complaint essentially requires consideration only for 21 Flat buyers out of the list of 22 that has been handed down by the Ld. Counsel for the Complainants, as one of them, Mr. Sanjeev Arora who is the Complainant No. 13, has settled his dispute with the Opposite Parties. This detail is explained later with the help of the Chart handed over by the Ld. Counsel for the Complainants. But for the present, this dispute arose as the Complainants came up contending that inspite of having made the payments substantially, the possession of the Flats was not being handed over and consequently the Complainants had moved an interim application before this Commission being IA No. 10551 of 2017 calling upon the Opposite Parties to hand over possession. An interim Order was passed on 9.5.2019 and being dis-satisfied with the compliance, two applications were filed under Section 27 of the Consumer Protection Act, 1986 for ensuring compliance of possession being IA Nos. 16253 of 2019 and 11766 of 2019.
2. The main dispute was of non-delivery of possession and completion of the amenities about which deficiency has been complained of. It may be clarified, at the outset, that the Complainants have moved this Complaint with an application under Section 12(1)(c) of the Consumer Protection Act, 1986, praying that this Complaint be treated as a class-action and be proceeded accordingly as all the Complainants have essentially the same grievances and therefore there is a commonness and sameness of interest. Notice was issued on this application as well alongwith the Complaint but for one reason or the other, the application under Section 12(1)(c) remained pending and was ultimately allowed on 16.11.2022 by the following Order:-
"An Application, being I.A. No.5741 of 2017 under Section 12 (1) (c) of the Consumer Protection Act, 1986 has been filed by the Complainants to file the present Complaint for and on behalf of all the Complainants.
Heard the learned Counsel for the Complainants and perused the averments made in the Application.
There is sufficient commonality or sameness of interest or grievances of the persons on whose behalf the Complaint has been instituted. The Application is accordingly allowed.
Admit subject to just exceptions.
The Complainants shall get the Public Notice of this Complaint published in two newspapers, namely, "Indian Express (English) and Jansatta (Hindi) having wide circulation in the local area. The notice shall be returnable on 07.02.2023.
The Written Version be filed by the Opposite Parties, within 30 days from the date of receipt of the notice.
List on 07.02.2023."
3. Reverting back to the course of events in the present Complaint, the interim application for possession was taken up and Notices issued to the Opposite Party who was already represented and had filed a Written Version which is on record dated 23.7.2018.
4. After hearing the Counsel for the parties, this Commission on 25.10.2018 passed the following Order :-
"Counsel on behalf of the complainants submits that they have submitted IA/10551/2017 with a view to obtaining from the opposite parties the following:
(i) Possession on the basis of fit out possession already offered by the opposite parties, subject to payment of undisputed amount as per the original builder buyer agreement;
(ii) Any demand over and above this also may be paid but only by depositing the amount in Court.
Counsel on behalf of the opposite parties undertakes to seek instructions from his client and file a reply to interim application. If the reply has already been filed, they may file another reply after consultation with their client.
IA/16531/2018 is an application for deletion on behalf of the complainant, namely, Sri Sunil Kumar Nigam. The application is allowed. His name may be deleted from the array of the complainants.
It is submitted on behalf of the counsels that reply to the complaint has already been filed on behalf of the opposite parties and has been received by the complainants. Complainants may file their rejoinder, if any, alongwith affidavit evidence within four weeks with advance copy to opposite parties. Opposite parties may thereafter affidavit evidence within a further period of four weeks.
List on 14.1.2019."
5. Consequently, the issue of grant of an interim relief for possession was taken up for consideration whereupon the parties were directed to file their Affidavit of Evidence and then on 9.5.2019, the following direction was given by this Commission as an interim measure:-
"On 14.1.2019, it had been specifically noted that the date was fixed for arguments on IA No. 10551/2017, an application by the complainants seeking interim relief.
On that date, proxy counsel appeared on behalf of Mr. Dhananjay Jain, and undertook to file vakalatnama of Mr. Dhananjay Jain with NOC from the previous counsel within a week.
In the order dated 14.1.2019, it was noted that the OPs had chosen to change their counsel instead of coming prepared to argue on the interim application for interim relief. A word of caution to the OPs had also been recorded, and, thereafter, the next date was fixed for 9.5.2019 i.e. today. Even today, not only does a proxy counsel appear on behalf of the OPs, he undertakes to file his vakalatnama within a week. As for Mr. Dhananjay Jain, his vakalatnama has still not been filed.
Proxy counsel, though not authorized, submits that his instructions are that only Tower 37 & 38 are yet to receive occupation certificate; the occupation certificates for the remaining Towers have been received and these flats are, therefore, ready for handing over of possession.
In view of the submission above, this interim application- IA/10551/2017, is partly allowed, and the OPs are directed to hand over possession of the flats to the complainants, without prejudice to their rights and contentions which are being agitated before this Commission and subject to outcome of this complaint.
It is submitted by the counsel for the complainants that the complainants are willing to pay the outstanding sale consideration as per the original sale-purchase agreement, without any interest or other penal charges being demanded by the OPs; however, given that the OP's current status is uncertain, they seek permission to deposit the amount with the National Commission.
In view of the special circumstances of this case, and the manner in which the OPs have pursued their defense in this complaint, prayer of the complainants is allowed. The complainants may prepare a statement of payments due to the OPs according to them, and with the list, deposit the amount with the National Commission within four weeks. They may share this list with the OPs.
The amount, if so deposited, may be kept in a fixed deposit initially for a period of one year, renewable thereafter.
List the matter on 14.11.2019."
6. A perusal of this above-quoted Order would indicate that even though the application under Section 12 (1) (c) had not been allowed, that Opposite Parties were directed to hand over possession of the Flats to the Complainants without prejudice to their rights and contentions in the Complaint itself.
7. It was also noted that the Complainants were willing to pay the outstanding sale consideration as per the original Agreement without any interest or other penal charges with a request that they be permitted to deposit the same before this Commission. The said prayer was allowed and a direction was issued that a Statement be prepared and the same may be filed with this Commission indicating the payments made.
8. As noted above, since the said directions were not being enforced, applications under Section 27 of the Consumer Protection Act, 1986 were moved where after the case could not be taken up as the pandemic had intervened. Notices were again issued and as per the Office Report dated 14.1.2021, they were served on the Opposite Parties. Notice on the application being IA No. 16253 of 2019 filed under Section 27 of the Consumer Protection Act was again issued by the Commission on 18.1.2021 noting that the Complaint had not been admitted as yet under Section 12 (1) (c). The Office Report dated 18.5.2022 states that the Notice was served on the Opposite Party No. 1 on 13.4.2022. However, on 19.5.2022 when the case was taken up, no one appeared for either of the Opposite Parties. The case was adjourned for 15.6.2022 on which date also the Opposite Party did not appear and the Counsel for the Complainants was directed to file details of the purchases/allotted Flats in the Project in question. This supplementary Affidavit was filed and on 16.11.2022 the Complaint was formally admitted under Section 12 (1) (c) which Order has already been extracted hereinabove. Accordingly, the direction for publication of Notice in two Newspapers was carried out and the Complaint was accordingly admitted as a Complaint under Section 12(1)(c ). The proof of publication of Notice is acknowledged by the Office in the Report dated 6.2.2023.
9. On 7.2.2023 when the case was listed, no one turned up on behalf of the Opposite Party and the same situation continued on 2.3.2023. The Office Report dated 12.5.2023 indicates that the Counsel for the Opposite Party was served on 27.3.2023. Fresh Notices were directed to be issued on 15.5.2023. The Counsel for the Opposite Party according to the Report dated 30.8.2023 was served but Notice issued to the Opposite Party Nos. 1 & 2 directly were not served and were reported with an endorsement that the "Addressee Left without instructions".
10. The case was again taken up on 31.8.2023 and after noting that possession has been handed over to 16 of the Complainants, the application under Section 27 of the Act moved earlier was disposed of and the compliance of deposit concerning one of the Complainants was directed. The Order dated 31.8.2023 is quoted herein as under :-
"Heard learned Counsel for the Complainant on Application No. 16253 of 2019. This Application was moved for compliance of the Interim Directions dated 09.05.2019.
It is stated at the bar by the learned Counsel for the Complainant that 16 Complainants have been handed over physical possession of their flats. In this regard no one else has come forward and therefore we see no reason to keep this Application under Section 27 pending and it stands disposed of subject to any Orders that may be passed finally in this Complaint.
We have also come across the Compliance Affidavit filed on behalf of the Complainants for tendering the Bank Drafts in lieu of the payments that they had to make. Annexure - C of the said compliance Affidavit dated 06.06.2019 are the details of the Bank Drafts that were tendered before the National Consumer Disputes Redressal Commission and according to the Office Report the same have been received and have been converted into Fixed Deposits that are lying with the National Commission.
There is another Compliance Affidavit dated 22.08.2019, vis-à-vis Mr. Deepak Agarwal and Ms. Rupali Agarwal who have tendered an Account Payee Pay Order in favour of the Registrar, NCDRC for a sum of Rs.4,94,296/-. It appears that the original Pay Order was appended along with the said Affidavit which is at Page No. 5. The said Pay Order appears to have neither been encashed nor deposited in the account of the NCDRC as the original is still punched in the file.
The date of the Pay Order dated 13.08.2019, and as it is obvious from the endorsement thereon, the validity of the said Pay Order is only for a period of three months. Consequently, as on date the said Pay Order will either have to be re-validated, in case it is permissible under the Banking Rules, or else Mr. Deepak Agarwal and Ms. Rupali Agarwal will have to tender a fresh Bank Draft in order to ensure the compliance of the Order dated 09.05.2019. The Registrar is therefore directed to hand over the said Pay Order back to the learned Counsel for Mr. Deepak Agarwal and Ms. Rupali Agarwal, who shall receive the same and instruct his client to tender a Bank Draft of the same amount to the Registrar, NCDRC within ten days. The same shall be accepted and treated in lieu of Pay Order which shall be returned back as directed above.
With the above developments, that have taken place the dispute now narrows down to the reliefs claimed in the Complaint vis-à-vis the delay compensation and other claims which have been made keeping in view the fact that possession has been taken over and it is only the accounting part of the claims and the counter claims that has to be adjudicated.
Consequently, since the matter has not to be heard finally and no one appears on behalf of the Opposite Parties which is evident from the previous Order sheets as well, the Complaint shall proceed ex-parte against the Opposite Parties and shall be finally heard on 05.01.2024."
11. The case was listed thereafter on 5.1.2024 when the following Order was passed:-
"Possession has been handed over in August, 2019 yet the Opposite Parties were called upon to answer the other allegations regarding deficiency in the constructions offered as also the claim regarding delay compensation as well as other ancillary reliefs that have been detailed in the relief clause of the complaint.
Learned Counsel submits that along with the application no. 16253 of 2019 certain facts have been indicated to demonstrate the continuing deficiencies in the constructions. In this complaint, there are 23 units which are subject matter of this complaint and as such it would be appropriate that a chart with regard to the exact nature of deficiencies of each of the units is prepared and placed before the Bench in order to proceed further in the matter. The Opposite Parties remain unrepresented today. It is evident that the Complainants had offered to deposit the payments as desired which they have made through demand drafts tendered before this Commission. Accordingly, the matter can proceed for final disposal. Let the chart with regard to the exact nature of deficiencies as claimed by the Complainants be placed which should be in accordance with the pleadings already on record.
List on 04.04.2024 at 2.00 p.m."
12. Accordingly, the matter was heard on 4.4.2024 and again finally on 9.4.2024. In compliance of the direction given to prepare the Chart of the balance of the reliefs that remained to be considered, the written arguments along with the Chart was filed on 1.4.2024, which is extracted herein as under:-
S.No.
Complainant
Unit No./ Tower
Specific Deficiencies
(as mentioned in I.A.No. 16253 of 2019)
Deposit made by Complainant as per Order dt. 09.05.2019 of the Hon'ble NCDRC
1.
Nitin Agarwal/ S K Aggarwal 203/ Tower 32
1. No wooden flooring in any of the 4 bed rooms.
2. Handle and Locks missing/broken in utility room.
3. No finishing paint coat.
4. Glass broken in Bathroom/ Bedroom
5. Flat in absolute dirty and filthy condition.
Fixtures of Bathroom & Kitchen dirty and unrecognizable.
All door handle dirty and rusted.
(Unit was not as per the specification mentioned in Annexure B of the Builder Buyers Agreement) Rs. 4,98,880/-
DD No. 682551
2. Sangeeta Gambhir 1703/ Tower 33 No wooden floorings in any of the bed rooms.
2. Broken Plaster and Seepage in the Drawing Room.
3. No doors in servant quarter's toilet.
4. No door separating Kitchen and Servant's Quarter.
5. Kitchen tiles broken and loosely placed, making noises while walking across it.
6. No finishing paint coat. Needs to be redone.
7. Fittings and Fixtures of bathroom/ kitchen are not working properly, rusted and damaged.
8. Aluminium Doors and Windows are either missing or damaged, as described below:
Aluminium Door have no lock and keys; Windows in all toilets (including servant quarters) missing;
3 Aluminium door of 3 three bedrooms are missing. Aluminium Frames and glasses damages;
No lock / keys in Aluminium doors.
(Unit was not as per the specification mentioned in Annexure B of the Builder Buyers Agreement) Rs. 2,56,338/-
DD No. 508823
3. Suresh Chand Mittal / Mradu Mittal 1704/ Tower 33
1. No wooden floorings in any of the 4 bed rooms.
2. No Keys for any Aluminium Doors handed over.
3. No seat covers (W.C) in all the 5 toilets.
4. No showerhead in 4 of the bathrooms.
(Unit was not as per the specification mentioned in Annexure B of the Builder Buyers Agreement) Rs. 5,02,784/-
DD No. 648470
4. Bhavna Sood 401/ Tower 35
1. Broken Plaster in all Bedrooms.
2. Bathroom attached with Bedroom was leaking and damped and damaged.
3. Most of the window handles missing.
4. No finishing paint coat. Needs to be redone.
5. Kitchen Fittings are not working as the same are rusted/damaged.
6. No Keys for any Aluminium Doors handed over.
(Unit was not as per the specification mentioned in Annexure B of the Builder Buyers Agreement) Rs. 4,42,881/-
DD No. 781545
5. Anubhav Gupta/ Pooja Gupta 2202/ Tower 35
1. Corners and Walls of flat misaligned and oblique.
2. Massive Seepage in drawing room.
3. All the doors including that of servant quarters are jammed.
4. No finishing paint coat. Needs to be redone.
No showerheads in any bathroom. Bathroom and kitchen fittings in not working.
No toilet seats in any toilets.
Aluminium doors and Windows misaligned and jammed. Locks not working.
Main entrance door damages, misaligned and need of replacement.
Balcony attached to living room has big cracks developing poses safety risk.
(Unit was not as per the specification mentioned in Annexure B of the Builder Buyers Agreement) Rs. 7,50,316/-
DD No. 524135
6. Venkatasubramanian Maruthai / Harshida Venkatasubramanian 1001/ Tower 34 No wooden floorings in any of the bedrooms.
Broken Plaster and Seepage in the Drawing room.
No finishing paint coat. Needs to be redone.
Bathroom and kitchen fittings not working- damaged and rusted.
All Aluminium Doors and windows either missing or damaged. In specific:
No aluminium door in drawing room. No Glasses in the window frames. Aluminium frame in windows broken and damaged.
Window frame needs repair.
1 door kept separately in the Flat.
Glasses kept separately from the window frames.
No locks/keys in the Aluminium doors.
Most knobs and handles missing from aluminium doors.
(Unit was not as per the specification mentioned in Annexure B of the Builder Buyers Agreement) Rs. 4,40,000/- DD No. 094798
7. Deepak Agarwal/ Rupali Agarwal 202/ Tower 38
1. No wooden floorings in any bedroom. No plaster.
Broken Plaster & Seepage in bathroom and kitchen.
Fittings/fixtures missing in all bathroom. Bathroom in bad shape. Minimal fittings/fixtures given are rusted and damaged.
Rs. 4,94,296 DD No. 752090 Later DD was revalidated in Compliance of Order dt 31.08.2023 Revalidated DD No. 752090 Kitchen tiles broken. Doors missing.
Entire electrical fittings and wiring missing.
No finishing paint coat. Needs to be redone.
Door locks and keys are missing.
Aluminium Doors and Windows damaged and broken.
(Unit was not as per the specification mentioned in Annexure B of the Builder Buyers Agreement)
8. Rohit Sethi/ Charu Swami 302/ Tower 38 No wooden flooring in any of the 4 bedrooms.
Broken plaster in drawing room, bedrooms, Kitchens, balconies and around the edge of windows and doors.
Big pile of debris and garbage stored in the drawing room. Entire flat has cobwebs and is uncleaned.
No Aluminium doors or window frames.
No sliding Aluminium door in the Drawing room.
Many Aluminium Doors/windows missing/not installed. Some with broken and missing frames and glasses.
No finishing paint coat on any door, window, balcony, window grills, ceiling and walls and lots of dust and marks. Needs to be redone.
No fittings/fixtures present in any bathroom or kitchen.
Many floor and walls titles in drawing room, balcony, dining room, bathroom and kitchen broken.
Master bedroom door locked and keys not available.
Electrical wiring is only partially done and missing in many rooms. Wires are hanging from all outlets. Electrical wall plates, switches and MCB are missing.
No granite counter top in kitchen.
No doors installed in Kitchen and Servant quarters.
(Unit was not as per the specification mentioned in Annexure B of the Builder Buyers Agreement) Rs. 4,61,824/- DD No. 513878
9. Kavita Dogra 901/ Tower 32 No laminated wooden flooring in any of the rooms. No Flooring of any kind.
All three shafts in all three bathrooms are open and gaping with the window frames lying on floor with the glass broken and in irreparable condition.
3. Hardware and sanitary ware is mostly missing, broken or malfunctioning.
Main door and doors of living/dining room are indilapiated conditions. Handles and locks of the door are missing/ malfunctioning.
No video-door-phone at the entrance of flat.
No change in size of the apartment. Built-up area like servant quarters, washrooms and balconies etc. smaller than initially claimed.
7. No club facilities as promised. No functioning lift/escalator in the club.
(Unit was not as per the specification mentioned in Annexure B of the Builder Buyers Agreement) Rs. 3,67,913/-
DD No. 216016
10. Lalit Gupta/ Savita Gupta 902/ Tower 36
1. No Wooden Flooring in any of the Bedrooms.
2. Broken Plaster and Seepage.
3. No finishing paint coat. Requires to redone.
4. No Windows and Aluminium doors, either missing or broken
5. Flat in absolute dirty and Filthy Condition.
6. Glasses in the Windows and Doors are missing or broken.
7. No Oil bound distemper in the walls.
8. Poor quality of tiles provided.
Unit was not as per the specification mentioned in Annexure B of the Builder Buyers Agreement (Please refer to Annexure- H @1010 wherein OPs admit that final finishing is incomplete wrt Tower No. 36) Not mentioned in I.A No. 16253 of 2019 NA
11. Ashok Bhasin/ Kiran Bhasin 1203/ Tower 33 Unit was not as per the specification mentioned in Annexure B of the Builder Buyers Agreement Not mentioned in I.A No. 16253 of 2019 Rs. 5,10,000/-
DD No. 517468 (Filed on 08.08.2019 vide Diary No. 33419)
12. Saurabh Dhawan 1501/ Tower 32 Unit was not as per the specification mentioned in Annexure B of the Builder Buyers Agreement Not mentioned in I.A No. 16253 of 2019 Rs. 4,53,706/- DD No. 887980
13. Sandeep Malhotra 303/ Tower 37 Unit was not as per the specification mentioned in Annexure B of the Builder Buyers Agreement Not mentioned in I.A No. 16253 of 2019 Rs. 4,78,060/- DD No. 670758
14. Shobhna Gupta/ Subhash Chand Gupta 502/ Tower 33 Unit was not as per the specification mentioned in Annexure B of the Builder Buyers Agreement Not mentioned in I.A No. 16253 of 2019 Rs. 4,53,706/- DD No. 512805
15. Madhura Bhudolia 902/ Tower 32 Unit was not as per the specification mentioned in Annexure B of the Builder Buyers Agreement Not mentioned in I.A No. 16253 of 2019 Rs. 4,32,565/- DD No. 201270
16. Gaganbir Singh Kular 1102/ Tower 35 Unit was not as per the specification mentioned in Annexure B of the Builder Buyers Agreement Not mentioned in I.A No. 16253 of 2019 Rs. 4,06,324/-
DD No. 339528
13. On the date of final arguments, an additional Chart has been given indicating the status of the 22 Complainants who are pursuing this Complaint except one i.e. Sanjeev Arora, Complainant No. 13 who has already settled the dispute. A copy of the Chart handed over indicating the same is extracted herein as under:-
"S.No. Complainant Unit No./ Tower Status
1. Nitin Agarwal/ S K Aggarwal Petitioner No. 4/ 5 203/ Tower 32 Possession Taken pursuant to Or dt 09.05.2019.
Balance Sale consideration deposited in Court.
2. Sangeeta Gambhir Petitioner No. 14 1703/ Tower 33 Possession Taken pursuant to Or dt 09.05.2019.
Balance Sale consideration deposited in Court.
3. Suresh Chand Mittal/ Mradu Mittal Petitioner No. 17 1704/ Tower 33 Possession Taken pursuant to Or dt 09.05.2019.
Balance Sale consideration deposited in Court.
4. Bhavna Sood Petitioner No. 20 401/ Tower 35 Possession Taken pursuant to Or dt 09.05.2019.
Balance Sale consideration deposited in Court.
5. Anubhav Gupta/ Pooja Gupta Petitioner No. 1/2 2202/ Tower 35 Possession Taken pursuant to Or dt 09.05.2019.
Balance Sale consideration deposited in Court.
6. Venkatasubramanian Maruthai/ Harshida Venkatasubramanian Petitioner No. 24/ 25 1001/ Tower 34 Possession Taken pursuant to Or dt 09.05.2019.
Balance Sale consideration deposited in Court.
7. Deepak Agarwal/ Rupali Agarwal Petitioner No. 5 202/ Tower 38 Possession Taken pursuant to Or dt 09.05.2019.
Balance Sale consideration deposited in Court.
8. Rohit Sethi/ Charu Swami Petitioner No. 37 302/ Tower 38 Possession Taken pursuant to Or dt 09.05.2019.
Balance Sale consideration deposited in Court.
9. Kavita Dogra Petitioner No. 12 901/ Tower 32 Possession Taken pursuant to Or dt 09.05.2019.
Balance Sale consideration deposited in Court.
10. Lalit Gupta/ Savita Gupta Petitioner No. 21/ 22 902/ Tower 36 Possession Taken pursuant to Or dt 09.05.2019.
No amount due to the OPs hence, balance consideration not deposited in Court
11. Ashok Bhasin/ Kiran Bhasin Petitioner No. 31/ 32 1203/ Tower 33 Possession Taken pursuant to Or dt 09.05.2019.
Balance Sale consideration deposited in Court.
12. Saurabh Dhawan Petitioner No. 26 1501/ Tower 32 Possession Taken pursuant to Or dt 09.05.2019.
Balance Sale consideration deposited in Court.
13. Sandeep Malhotra Petitioner No. 33 303/ Tower 37 Possession Taken pursuant to Or dt 09.05.2019.
Balance Sale consideration deposited in Court.
14. Shobhna Gupta/ Subhash Chand Gupta Petitioner No. 8/ 9 502/ Tower 33 Possession Taken pursuant to Or dt 09.05.2019.
Balance Sale consideration deposited in Court.
15. Madhura Bhudolia Petitioner No. 34 902/ Tower 32 Possession Taken pursuant to Or dt 09.05.2019.
Balance Sale consideration deposited in Court.
16. Gaganbir Singh Kular Petitioner No. 23 1102/ Tower 35 Possession Taken pursuant to Or dt 09.05.2019.
Balance Sale consideration deposited in Court.
Petitioners who have not deposited the amount in compliance of order dated 09.05.2019 of Hon'ble NCDRC, however, have filed their Affidavit of Evidence .
17. Dhir Anup Ramdas/ Monica Anup Dhir Petitioner No. 35/36 801/ Tower 37 Balance Sale consideration not deposited in Court.
Possession not taken.
Petitioners who have or not filed Affidavit of Evidence and/ or settled
18. Nikhil Tripathi/ Sonal Gupta Petitioner No. 10/ 11 301/ Tower 33 Affidavit of Evidence not filed.
Possession not taken.
Balance consideration not deposited in court
19. Sanjeev Arora Petitioner No. 13 1704/ Tower 38 Affidavit of Evidence filed.
Settled dispute with the OPs.
20. Anil Kumar Dhanda /Anita Dhanda Petitioner No. 27/ 28 1203/ Tower 38 Affidavit of Evidence not filed.
Possession not taken.
Balance consideration not deposited in Court
21. Anubhav Rai Adlakha/ Asha Adlakha Petitioner No. 29/30 301/ Tower 34 Affidavit of Evidence not filed.
Possession not taken.
Balance consideration not deposited in Court.
22. Nita Nagraj/ Sudhanagraj Petitioner No. 15/16 1502/ Tower 37 Affidavit of Evidence not filed.
Possession not taken.
Balance consideration not deposited in Court.
Status of OP No. 2, Three C Universal Developers Pvt. Ltd.- Under Moratorium as per Order dated 17.12.2019 passed by Hon'ble NCLT, New Delhi in (IB)-2582 (ND) 2019 in Jakson Limited v. Three C Universal Developers private Limited."
In order to complete the background of the case, the Project under which these Flats were booked is known as "Espacia". The initial bookings were of 2009 when it was represented that the construction would be completed within 36 plus 3 months. It is on this representation that the bookings were undertaken by the Complainants and the details of the bookings, payments and the date of handing over possession have all been indicated in the Chart extracted hereinabove. The fact remains that possession was not handed over within the time and there was a delay which also stood acknowledged in the letter dated 2.6.2016 that was sent to the Flat Buyers. The said letter is extracted herein as under:-
"Dear Sir/Madam, At the outset let us thank you for partnering with us in our Green Journey through our flagship Green Residential Project "Lotus Boulevard Espacia".
We are pleased to inform you that we have initiated the process of Sub Lease Deed Registration for Towers 32 to 36. We are very well aware that final finishing is still in progress for tower 36 however considering the fact and the recent update regarding the probable increase in stamp duty charges from 5% to 7% by Registrar, Noida. We are sending this communication (Offer of Possession) basis on the discussion we had with larger group of Lotus Boulevard Espacia wherein customers have proposed to issue the letters for possession for tower 36 also in order to save 2% increase in stamp duty charges. Please note that this offer is optional and 30 day timelines for remittance of dues will not be applicable for tower 36 customers as the tower is still in final finishing stage. Kindly ignore the 30 days; timeline to attend the dues mentioned in the attached letter as it is a system generated document.
We request you to clear the balance dues (as specified in the tatement of accounts as Annexure 1) and submit al the requisite documents along with address proof of all the applicants for enabling us to start the registration process. Please find attached copy of offer of possession & news article for your reference.
Kindly Note : Consideration for Stamp duty calculation to be mentioned in E stamp paper is Rs. 1,03,03,281/-
Below are the details of stock holding for procurement of E-stamp paper:-
M/S. STOCK HOLDING CORPORATION OF INDIA LTD.
203, SECOND FLOOR, OCEAN PLAZA, P-5 SECTOR- 18 , NOIDA PHONE- 0120-4217033, 4217037 Looking forward to your continued support in making Lotus Boulevard Espacia a landmark housing complex.
Regards Team 3C"
15. Ld. Counsel for the Complainants, therefore, contends that the delay is admitted on the part of the Opposite Parties and possession was taken only pursuant to the Orders passed by this Commission on 9.5.2019. It is urged that this delay deserves to be compensated and the possession having been handing over, the relief prayed for in this Complaint, survives for delay compensation and also some of the deficiencies that have been indicated in the Chart extracted hereinabove. The contention therefore is that the period of delay has to be counted from the date of expected possession that was offered by the Opposite Parties after the expiry of 39 months from the date of allotment. The delay has to be counted till 9.5.2019 which is the date on which direction to hand over possession was given.
16. The second aspect of deficiencies which have been pointed out in the Chart and have not been rectified according to the Complainants, is unrebutted as no one has turned up on behalf of the Opposite Parties to contest this Complaint inspite of service of Notice on several occasions as indicated above.
17. In this background, the Ld. Counsel for the Complainant urges that the balance of the amount which has been respectively paid by each of the surviving Complainants and have been deposited before this Commission, should be adjusted as set off for the deficiencies pointed out in respect of each of the Flats and be refunded to them.
18. It is, therefore, submitted that the deficiencies pointed out be compensated accordingly and the compensation for delay in possession be awarded as indicated above.
19. Having been considered the submission raised on behalf of the complainants, since there is no one present on behalf of the opposite parties to contest the case, it is evident that the complainants had booked their flats in 2009 and the project was to be completed in 39 months. The expected delivery after 39 months did not arrive and the timeline given by the opposite parties was not honoured. The allotments letters have been filed as Annexure-'E' to the complaint. It is, therefore, evident that none of the complainants had received the possession within time as prescribed. This period of 39 months expired way back in 2012.
20. It is in this background that the present complaint was filed being a Complaint under Section 12(1)(c) of the Consumer Protection Act, 1996 as 'Class Action Suit'. But during the pendency of the complaint, none else came up except the complainants who have been referred to hereinabove. Thus even though this complaint was filed as a 'Class Action Suit', many of the flat buyers have settled their disputes with the opposite parties or did not file any impleadment application seeking common benefits. This complaint therefore, remains confined to the adjudication regarding 21 complainants who remained in the fray as indicated in the chart above and therefore, this decision shall stand confined to the benefit of these complaints only to the extent indicated hereinafter.
21. In respect of 16 Complainants who are referred to in the chart in paragraph 12 above, the possession of the flats was taken by them pursuant to the Order dated 09.05.2019 passed by this Commission as indicated above. These 16 Complainants have also deposited the balance sale consideration before this Commission.
22. The rest of the complainants, except Sanjeev Arora who had already settled his dispute with the opposite parties, have neither taken possession nor they have paid the balance consideration. Their names appear at serial no. 17, 18, 20, 21 & 22. There is one more party on whose behalf there is a deed of settlement dated 18.09.2017 namely Ms. Neeta Nagraj and Sudha Nagraj whose names appear at serial no. 22 in the chart above. This settlement deed dated 18.09.2017 has been filed at page 36 of the reply of the opposite party no.1.
23. Nonetheless the fact remains that 16 of the Complainants noted above took possession pursuant to the Order passed by this Commission on 09.05.2019 and have deposited the balance consideration as well. The delay in possession is therefore upto 09.05.2019 and consequently the delay compensation shall be payable to all these 16 Complainants from serial no.1 to 16 in the chart referred to above in paragraphs 12 and 13. The delay rate of compensation shall be at the rate of 9% per annum interest on the total amount of sale consideration paid by them with effect from the date on which the possession was to be offered as per the agreement and booking letters. This amount shall be payable to the complainants from the date of possession i.e. 09.05.2019. The Complaint to the aforesaid extent is allowed with a direction to the opposite parties to carry out the calculations accordingly and make the payment within three months.
24. So far as the other complainants whose names appear at serial no. 17, 18, 20, 21 and 22, in the chart referred to in paragraph 13, since they have neither taken possession nor they have deposited any balance sale consideration, they shall be entitled to take possession after clearing the balance consideration but to they shall not be entitled to any delay compensation beyond 09.05.2019 as they have failed to comply with the interim directions of this Commission. They have not even come forward to offer any explanation in this regard. They shall be entitled to get their conveyance deeds executed on payment of their balance amount.
25. Coming to the deficiencies that have been indicated by the complainants in paragraph 12, since the 16 complainants have deposited the balance amount of consideration as per directions of this Commission issued on 09.05.2019 and the opposite parties have not come up to contest the same, a sum of Rs.2.5 lakhs out of the amount so deposited by the 16 complainants shall be refunded back to them by the registry in lien of the deficiency of services as mentioned in the chart above. The balance shall be released to the opposite parties. The opposite parties are also directed to execute all the conveyance deeds to these 16 complainants that may be needed for transferring the interest/title of the premises, if not already done within three months from today. This complaint is accordingly disposed off with Rs.10,000/- litigation costs to all 16 complainants referred to hereinabove.
.........................J A. P. SAHI PRESIDENT