National Consumer Disputes Redressal
Ajay Batra & Anr. vs Godrej Premium Builders Private ... on 11 October, 2024
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 699 OF 2020 1. AJAY BATRA & ANR. S/o. Sh. Manohar Lal Batra,
R/o. 11/26,
3rd Floor,
West Patel Nagar, NEW DELHI - 110 008 2. MOLINA BATRA W/o. Ajay Batra,
R/o. 11/26, 3rd Floor,
West Patel Nagar, NEW DELHI - 110 008 ...........Complainant(s) Versus 1. GODREJ PREMIUM BUILDERS PRIVATE LIMITED & ANR. Through its Registered office at Godrej One,
5th Floor,
Pirojshanagar Eastern Express Highway,
Vikhorli (East), MUMBAI - 400 079 2. MAGIC INFO SOLUTIONS PVT. LTD. Regd. Office at D-13, Defence Colony, NEW DELHI - 110 024 ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE RAM SURAT RAM MAURYA,PRESIDING MEMBER HON'BLE MR. BHARATKUMAR PANDYA,MEMBER
FOR THE COMPLAINANT : MR. ADITYA PAROLIA, ADVOCATE
MS. SUMBUL ISMAIL, ADVOCATE
MS. PRANJAL MISHRA, ADVOCATE
MS. ANVITA PRIYADARSHI, ADVOCATE FOR THE OPP. PARTY : FOR OPPOSITE PARTY-1 : MR. SUDHIR MAKKAR, SR. ADVOCATE WITH
MR. KAPIL MADAN, ADVOCATE
MS. AADHYA, ADVOCATE
MR. AKSHIT NARULA, ADVOCATE
MR. AMIT, AR
FOR OPPOSITE PARTY-2 MR. MAYANK GOEL, ADVOCATE
Dated : 11 October 2024 ORDER
1. Heard Mr. Aditya Parolia, Advocate, for the complainants, Mr. Sudhir Makkar, Senior Advocate, assisted by Mr. Kapil Madan, Advocate, for the opposite party-1 and Ms. Mayank Goel, Advocate for opposite party-2.
2. Ajay Batra and his wife Molina Batra have filed above complaint for directing the opposite parties to (a) refund Rs.8137034/- with interest @ 18% per annum, from the date of respective deposit, till the date of refund; (b) pay Rs.5/- lacs, as compensation for mental agony, harassment, discomfort and undue hardship; (c) pay Rs.one lac towards cost of litigation; and (d) any other relief which this Commission may deem fit in favour of the complainants.
3. The complainants stated that they booked a unit in the project 'Godrej Sumit' at Sector-104, Gurgaon, Haryana launched by the opposite parties by paying booking amount of Rs.9/- lacs on 27.09.2012. Initially the opposite parties allotted Unit No.E-1802, admeasuring 1269 sq. ft. vide allotment letter dated 04.02.2013. The allotment was made without consultation with the complainants, although the complainants were ready to pay PLC charges. The OPs alleged that the allotment was made in the presence of the brokers through which they had received the booking amount. The OPs continued in demanding the amount without executing any agreement for sale. The complainants paid an amount of Rs.3197936/- before execution of apartment buyer's agreement. On the request of the complainants, the OPs changed the unit from E-1802 to unit No.E-1005 on 10th floor, tower-E having built up area of 1269 sq. ft. vide provisional allotment letter dated 09.09.2014. Thereafter, the opposite parties executed an apartment buyer's agreement on 11.09.2014 for a total consideration of Rs.7924475/-. In the ABA there were various clauses which were arbitrary and one sided but the complainants could not raise any objection because any dispute would result in cancellation of the allotment and forfeiture of the earnest money. Possession of the unit was to be handed over within 42 months including 6 months grace period from the date of the allotment letter. In case of delay in handing over the possession, the OPs were required to pay delay compensation @ Rs.5/- per square feet per month of the super built up area. The complainants have paid an amount of Rs.8137034/-. In spite of receiving substantial amount, the OPs failed to deliver the possession even after expiry of more than three years from the promised date of delivery and the construction was still far away from completion. The complainants have been running from pillar to post and have also followed up with the OPs through various meetings, phone calls, emails, letters but the OPs kept on giving false assurances to them. The complainants expressed their anguish vide emails dated 14.11.2017, 15.11.2017 and 19.03.2019 regarding delay in handing over the possession. Although the complainants made the payments well within time, the OPs charged an interest of Rs.67221/-. In the aforesaid emails, the complainants have requested the OPs to refund the amount deposited by them with interest but the OPs did not reply to any email. Then, the complainants filed above complaint on 17.07.2020.
4. The opposite party-1 filed its written version, booking of the flat, change of allotment, allotment of the flat, execution of ABA and deposit made of the complainant are not disputed. The OPs stated that Urban Estate-Cum-Town and Country Planning, Haryana notified a comprehensive development plan for Gurgaon Manesar Urban Complex. M/s. Magic Info Solutions Pvt. Ltd. (OP-2) applied for grant of licence for development of group housing colony on 22.123 acre land at Sector 104, Gurgaon on 19.02.2011. Director General, Town and Country Planning, Haryana granted Licence No.102 of 2011 dated 07.12.2011 to OP-2. The Director, Town and Country Planning, Haryana approved Zoning Plan, vide Drawing No.2921 dated 08.12.2011, prepared by the authorities wherein they reserved the land for construction of 24 meters wide sectorial road connecting the project land to Dwarka Expressway. The said 24 meters wide road connecting Sector 104, Gurgaon with Dwarka Expressway was projected again in Development Plan for the year 2025 as well as for the year 2031. The Director, Town and Country Planning, Haryana sanctioned layout plan for the project "Godrej Summit", vide Memo No.17360 dated 05.09.2012, in which, a condition has been put upon the OPs to pay proportionate cost for construction of 24/30 mtrs. wide road/major external road as and when finalized and demanded by the Director General, Town and Country Planning, Haryana. OP-2 entered into a development agreement with Godrej Properties Limited and also executed a power of attorney in this regard. Godrej Properties Limited assigned its rights under the development agreement in favour of its subsidiary Godrej Premium Builders Pvt. Ltd., vide deed of substitution dated 27.12.2011. Godrej Premium Builders Pvt. Ltd. merged with Godrej Projects Development Pvt. Ltd. w.e.f. 21.08.2015 in terms of the order of High Court of Bombay in Company Petition No.154/2015, which was renamed as Godrej Projects Development Ltd. w.e.f. 22.11.2017. It was the responsibility of the state government to construct the road. Since the government has not constructed 24 meters wide road which was outside the project, the OPs provided the additional access on the revenue 'rasta' to ensure a tentative access to the flat owners. The OPs have filed Writ Petition No.6187 of 2018 before the Punjab & Haryana High Court seeking direction to the government authorities to construct 24 meters sectorial road. The OPs have already constructed internal 24 meters road within the periphery of the project. The OPs obtained Fire NOC dated 09.01.2017 and 26.05.2017. The OPs applied for sanction of electricity connection under IIT Bulk Supply Domestic Category to Dakshin Haryana Bijli Vitran Nigam, which was sanctioned and partial load of 980 KW was released, for which, requisite amount was deposited by the OPs and connection has been provided to the project. The OPs have applied to Dakshin Haryana Bijli Vitran Nigam for extension of the load to 4490 KW on 08.06.2017. The OPs have applied for regular water connection of 700KLD to Haryana Urban Development Authority and deposited requisite money. HUDA provided water supply to the OPs at boosting station, section 16 and Basai WTP, Gurugram and vide letter dated 27.03.2017 informed that regular water supply of 700 KLD would be given after completion of water supply line, which would take one year or as per availability of clearance of land. The OPs are ensuring water supply as per directions issued by HUDA through tanker. HUDA apprised the OPs vide letter dated 07.11.2017 that the work of laying down master water supply line was in progress. There is a gap in master line of 1600 mm dia near village Dhankot along GWS of approximately 762 meter length and the connection at the main rising line is to be done at WTP Chandu Budehra, Gurgaon. Further there is structure in alignment of pipeline near junction at Daulatabad Flyover Road and NPR in Sector 103 due to which approximately 110 meter (1200mm dia) is not laid. The OPs also initiated work in this regard and incurring additional amount due to apathy of the government only to satiate its home buyer and ensure that basic services are unhampered. The water supply can be provided only after laying down external infrastructure by HUDA. The OPs have provided adequate capacity sewage treatment plant (STP) with consequential batch reactor technology as per approved plan. STP installation certificate has also been obtained by the OPs. The OPs completed the construction, obtained 'occupation certificate' on 07.04.2017 and issued demand-cum-possession letter dated 05.10.2017 to the complainants. There is no deficiency in service on the part of the OPs within the meaning of Section 2 (1) (g) of the Consumer Protection Act, 1986. Thus, the complaint is liable to be dismissed qua OP-1 as not maintainable.
5. OP-2 filed its separate written version wherein allotment of the flat, payment made by the complainant and the due date of possession have not been disputed. It is stated that intimation of possession was given to the complainants vide letter dated 05.10.2017 and after negotiating waiver of maintenance charges etc. have paid two cheques on of Rs.45822/- towards common area maintenance charges and other of Rs.10243/- for electicity, vide two cheques dated 24.10.2017. Those cheques were not banked as the complainants failed to clear the outstanding balance of Rs.44429.03/- towards cost of the flat. In order to avoid late payment charges, the complainants started making false allegations against OP-2. The complainants have supressed the material fact that they have already approached the National Company Law Tribunal, New Delhi by filing a petition which was registered as IB 2645 (ND) of 2019 which has not been admitted and still pending. The complainants are required to pay outstanding amount of Rs.44429/- with interest @ 15% per annum. In the possession notice the details of the outstanding amount have been disclosed. Apart from the above payment, the complainants are also required to pay registration charges. The apartment buyer's agreement was signed between the parties by mutual understanding without any force of coercion. Now, the complainants are estopped from challenging the same after expiry of more than six years. As per agreement, possession of the apartment was to be handed over within 54 months including the grace period of 6 months. Any delay in handing over the possession is due to the reasons beyond the control of OP-2. However, as per agreement, in case of delay the OP-2 is liable to pay compensation @ Rs.5/- per month per sq. ft. of the super built up area. Possession was offered to the complainants on 05.10.2017 after obtaining the occupancy certificate from the Town & Country Planning Department, Haryana. More than 400 buyers have taken possession and they are peacefully residing in their respective units. Due to slump in the real estate, the complainants are avoiding to make payment of the outstanding amount with interest and in order to avoid forfeiture of the earnest money they are making false and frivolous allegations against OP-2. There is no deficiency in service on the part of OP-2 and the complaint is liable to be dismissed.
6. The complainants filed Rejoinder replies, Affidavit of Evidence of Ajay Batra and documentary evidence. OP-1 filed Affidavit of Evidence of Surabhi Kapur and OP-2 filed Affidavit of Evidence of Brajesh Chandra Tripathi. Both the parties have filed their short synopsis of arguments. The complainants filed additional documentary evidence through IA/17136/2024.
7. We have considered the arguments of the counsel for the parties. The complainants have filed IB 2645 (ND) of 2019 before National Company Law Tribunal, New Delhi, which is still pending. Supreme Court in Pioneer Urban Land and Infrastructure Limited Vs. Union of India, (2019) 8 SCC 416, has held that remedy under the Consumer Protection Act, 1986, Real Estate Regulation and Development Act, 2016 and Insolvency and Bankruptcy Code, 2016 are concurrent remedy. As the complainants are availing remedy before competent forum, the present complaint is barred by estoppel by election of remedy as held by Supreme Court in Ireo Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna, (2021) 3 SCC 241.
O R D E R
In view of the aforesaid discussions, the complaint is dismissed with liberty to pursue remedy before National Company Law Tribunal.
..................................................J RAM SURAT RAM MAURYA PRESIDING MEMBER ............................................. BHARATKUMAR PANDYA MEMBER