National Consumer Disputes Redressal
Amit Mittal vs Berry Developers & Infrastructure Pvt. ... on 17 November, 2022
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 2836 OF 2018 1. AMIT MITTAL ...........Complainant(s) Versus 1. BERRY DEVELOPERS & INFRASTRUCTURE PVT. LTD. Through its Managing Director, Building nO.80, 3rd Floor, Sector-44, Beside Ramada Hotel, Gurugram-122002 ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE RAM SURAT RAM MAURYA,PRESIDING MEMBER HON'BLE DR. INDER JIT SINGH,MEMBER
For the Complainant : Ms. Rekha Aggarwal, Advocate For the Opp.Party : Mr. Vishnu Anand, Advocate
: Mr. Naman Dutt, Advocate
Dated : 17 Nov 2022 ORDER
1. Heard Ms. Rekha Aggarwal, Advocate, for the complainants and Mr. Vishnu Anand, Advocate, for the opposite party.
2. Amit Mittal (complainant-1) has filed above complaint, for directing the opposite party to (i) refund entire amount deposited by the complainant and all other similarly situated flat buyers with interest @18% per annum, from the date of respective deposits till the date of refund, (ii) to pay Rs.11000/- as cost of the litigation; and (iii) any other relief which is deemed fit and proper in the facts and circumstances of the case. Above complaint was filed as a representative complaint under Section 12(1)(c) of the Consumer Protection Act, 1986, for which, leave was granted vide order dated 05.03.2019. Thereafter, six more flat buyers were impleaded time to time on their applications.
3. The complainants stated that Berry Developers & Infrastructure Private Limited (the opposite party) was a company, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing projects and selling its units to the prospective buyers. The opposite party launched a group housing project, in the name of "BDI Ambaram" at villages Mirchuni and Dhiriyavas, Sector-93, Tapukara, Bhiwadi, district Alwar, Rajasthan, in the year 2013 and made wide publicity that about 900 flats would be constructed within 36 months and also gave rosy pictures of other amenities and the facilities of the project. One Mrs. Neerja Gupta (the predecessors-in-interest of Amit Mittal) booked one 2BHK flat on 06.03.2013 and deposited booking amount. The opposite party allotted Flat No.706, Tower-Orchid-I, approx. super area 980 sq.ft., basic price Rs.21/- lakhs, in project "BDI Ambaram", vide allotment letter dated 09.10.2013 to her and executed Apartment Buyer's Agreement (ABA) dated 19.11.2013, in her favour. Mrs. Neerja Gupta transferred Flat No.706 to Amit Mittal with the permission of the opposite party, which was duly endorsed by the opposite party in the Apartment Buyer's Agreement, on 15.04.2014. Savita Arora (complainant-2) booked a flat on 29.04.2013 and she was allotted Flat No.208, Tower-Orchid-I, Abhishek Prakash & Priyanka Prakash (complainant-3) booked a flat on 25.04.2013 and they were allotted Flat No.901, Tower-Orchid-I, Girish Arora (complainant-4) booked a flat on 15.02.2013 and he was allotted Flat No.104, Tower FERN-4, Praveen Kumar Juneja (complainant-5) booked a flat on 29.06.2013 and he was allotted Flat No.402, Tower IRIS-A-6. Gurvinder Shah Singh (complainant-6) booked a flat on 10.07.2013 and he was allotted Flat No.G-4, Tower IRIS-A-7. Sonia Juneja (complainant-7) booked a flat on 29.06.2013 and she was allotted Flat No.401, Tower IRIS-A-7. Annexure-B of the ABA provides for Payment Plan as "Construction Link Payment Plan". As per demand, the complainants deposited more than basic sale price, till June, 2017. Clause-4.1 of the agreement provides that possession would be handed over within 36 months from the date of execution of the agreement. Due date of possession expired in November, 2016 but the opposite party failed to complete the project and offer possession to the complainants. The complainants used to inquire about possession from time to time. The opposite party vide demand letter dated 20.06.2017, raised final demand of Rs.143758/- towards balance sale price and Rs.76734/- towards Maintenance charges, payable till 05.07.2017. Demand of Rs.60000/- towards Development Parking charges, Rs.13500/- towards Allied charges and Rs.18508/- towards Delayed payment charges were not in accordance with the ABA. In this demand letter, the opposite party was totally silent about "occupation certificate". As per brochure, the opposite party gave a look to construct six towers i.e. Orchid-1 to Orchid-6 but has constructed only two towers Orchid-1 and Orchid-2. The construction of remaining towers were abandoned which give deserted look. In the brochure 60 mtr wide road adjoining to the project was shown but no such road is operational and even construction of the road was not started. Approach road from other direction, which is a narrow road is available, which changes the look of the project. The opposite party did not obtain Municipal Water Supply connection in the project. The complainants vide an emails dated 02.07.2017, 13.07.2017, 09.08.2017 and vide letters dated 05.09.2017 and 25.06.2018 made queries in respect of aforementioned amenities water supply, electricity supply, sewer connection, fitness certificate of elevators and "occupation certificate" but the opposite party did not respond. Then the complaint was filed on 31.12.2018, alleging deficiency in service.
4. The opposite party filed its written reply on 04.04.2019 and contested the complaint. The material facts relating to the project, allotment/transfer of the flats, execution of Apartment Buyer's Agreements and deposits made by the complainants have not been disputed. The opposite party stated that State of Rajasthan vide letter dated 01.05.2017, empaneled Bhardwaj & Associates, Architects, Engineers, Interior Designers, New Delhi as a competent authority for issue of "completion certificate" and "occupation certificate" as per provisions of Building Byelaws and orders issued in this respect vide order no. F.10(7)UDH/3/2009 Part-III dated 22.02.2017. The opposite party completed construction and applied for issue of "completion certificate". Bhardwaj & Associates after inspection, found the completion of the construction and issued "Partial Completion Certificate" on 20.07.2017 in respect of Blocks A-1, A-2, B-1, B-2, C-1, C-2, C-3, D-1, D-2 and D-3. Thereafter, the opposite party issued Final demand letters dated 20.07.2017 to all 498 allottees and offered possession to them. About 329 allottees have taken possession after depositing balance amount and at present about 300 families were residing in their flats. These completed towers have all the amenities such as water supply, electricity and sewerage connections. Each flat buyers have taken connection of electricity from Electricity Department and meters have been installed in their flats. The community facilities like club, swimming pool, gym ect. are fully functional. Amit Mittal purchased the flat through agreement dated 31.03.2014, which was endorsed by the opposite party on 15.04.2014. Three years period for him is liable to be counted from the date of his transfer and due date of possession was 14.04.2017. Clause 4.1.(ii) of the ABA provides six months grace period. Amit Mittal was offered possession, vide letter dated 24.06.2017, which well within time. The opposite party was allotted an area of 55435.650 sq.mtr land by Urban Improvement Trust Bhiwadi. Out of which, the opposite party surrendered 10185.220 sq. mtr. land for construction of 60 mtr and 45 mtr wide road adjoining the said project. The opposite party initially conceived for construction of 900 flats but sufficient numbers of flats were not booked as such, at first phase, construction of 498 flats were started and completed as per specification of the agreement on time. Demand of Rs.60000/- towards Parking charges was in accordance the ABA. In Payment Plan Rs.29400/- towards IFMS, Rs.40000/- towards club membership and Rs.60000/- towards car parking were separately shown and demands in these heads were as per ABA. Rs.13500/- towards Allied charges included, water, electricity and sewer connections and Rs.18508/- was demanded for delayed payment. All the demands were as per ABA. Amit Mittal visited the site/office on 21.07.2017 and was shown "completion certificate". Urban Improvement Trust Bhiwadi vide letter dated 11.11.2014, gave "no objection" for supply of water by Central Underground Water Board, Jhalana, Dungari, Jaipur, to the project. The complainants are investors and they invested in real estate, in order to get high appreciation but it appears that due to downward of the real estate market, they are now avoiding to take possession and sought for refund of their money. Value of the flat is Rs.2311528/-. This complaint has been filed under Section 12(1)(c) of the Consumer Protection Act, 1986 in order to confer pecuniary jurisdiction in this commission. The complaint is liable to be dismissed.
5. The complainants filed Rejoinder Reply on 18.04.2019, in which, the facts stated in the complaint were reiterated. It has been stated that Clause-1.8 of the ABA refers "occupation certificate", which has been not obtained by the opposite party till today. Layout Plan of the opposite party was sanctioned vide Letter No.10239-40/13 dated 12.11.2013. Condition No.20 of this letter clearly provides for obtaining of "occupation certificate". The complainants filed extract of Government Gazette, Rajasthan dated 24.10.2017, requiring compulsory acquisition of 'occupation certificate" for the multi-storied buildings. The complainants filed Affidavit of Evidence and Affidavit of Admission/Denial of documentary evidence of Amit Mittal. The opposite party Affidavit of Evidence and Affidavit of Admission/Denial of documentary evidence of Sanket Bansal. Both the parties filed written synopsis. The opposite party filed supplementary synopsis.
6. We have considered the arguments of the parties and examined the record. Clause-4.1(i) of Apartment Buyer's Agreement provides that to handover possession within 36 months from the date of agreement. Clause-4.1.(ii) provides for six months grace period. Apartment Buyer's Agreement was executed in favour of Mrs. Neerja Gupta on 19.11.2013. Including grace period, due date of possession would be April, 2017. From the date of transfer in favour of Amit Gupta, the period of 36 months + 6 months would complete in September, 2017. The opposite party offered possession to all the buyers/the complainants in June, 2017. As such possession was offered well within time. In any case, it cannot be said that there was unreasonable delay in offer of possession.
7. Main dispute between the parties is in respect of issue of "occupation certificate". The opposite party states that prior to enforcement of Rajasthan Real Estate (Regulation and Development) Rules, 2017, on 24.10.2017, Building Byelaws and orders issued in this respect vide Order no. F.10(7)UDH/3/2009 Part-III dated 22.02.2017 were applicable. State of Rajasthan vide letter dated 01.05.2017, empaneled Bhardwaj & Associates, Architects, Engineers, Interior Designers, New Delhi as a competent authority for issue of "completion certificate" and "occupation certificate" as per provisions of Building Byelaws and orders issued in this respect vide Order no. F.10(7)UDH/3/2009 Part-III dated 22.02.2017. The opposite party completed construction and applied for issue of "completion certificate". Bhardwaj & Associates after inspection, found the completion of the construction and issued "Partial Completion Certificate" on 20.07.2017 in respect of Blocks A-1, A-2, B-1, B-2, C-1, C-2, C-3, D-1, D-2 and D-3. Thereafter, the opposite party issued Final demand letters dated 20.07.2017 to all 498 allottees and offered possession to them. Offer of possession was in accordance of law.
8. The counsel for the complainants produced copy of Notification dated 22.02.2017, which requires for issue of "occupation certificate" after issue of "completion certificate" and verifying connection of water supply, electricity supply, sewer lines connections etc. From the condition of empanelment dated 01.05.2017, as filed by the opposite party also, these conditions for issue of "occupation certificate" have been mentioned. As such before issue of possession letter, obtaining "occupation certificate" was necessary, which has not been obtained till today. For the reasons, that some of the allottees have taken possession on the basis of "completion certificate" the complainants cannot be forced to take possession in the absence of "occupation certificate". Supreme Court in Banglore 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 buyer cannot be made to wait for possession of the flat for indefinite period.
ORDER
In view of aforesaid discussions, the complaint is partly allowed. The opposite party is directed to refund entire amount deposited by the complainants, including the amount deposited by their predecessors-in-interest, 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