National Consumer Disputes Redressal
Major General Vikram Puri (Retd) & Anr. vs Umang Realtech (P) Ltd. & 5 Ors. on 1 April, 2016
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 1198 OF 2015 1. MAJOR GENERAL VIKRAM PURI (RETD) & ANR. 133, UDAY PARK, NEW DELHI-110049 2. MRS. PRAVEEN PURI 133, UDAY PARK, NEW DELHI-110049 ...........Complainant(s) Versus 1. UMANG REALTECH (P) LTD. & 5 ORS. 1ST FLOOR, THE GREAT EASTERN CENTRE(GESCO),
70, NEHRU PLACE,
NEW DELHI-110019 2. UPPAL HOUSING PRIVATE LTD. 1ST FLOOR, EAST TOWER, NBCC PLACE,
BHISHMA PITAMAH MARG, PRAGATI VIHAR, LODHI ROAD, NEW DELHI-110003 3. LEONARD BESSETT DE SOMMA (DIRECTOR, UMANG REALTECH (P)LTD.)
1st SLOOR, THE GREAT EASTERN CENTRE (GESCO),
70, NEHRU PLACE, NEW DELHI-110019 4. BALBIR SINGH NAGPAL (DIRECTOR, UMANG REALTECH (P) LTD.)
R/O. SUNBREEZE APARTMENTS, SECTOR-5, VAISHALI, GHAZIABAD-201010 (U.P.) 5. RITESH JAIN (DIRECTOR, UMANG REALTECH (P) LTD.)
R/O. HOUSE NO. 343/12, STREET NO. 10, KRISHNA COLONY, GURGAON-122001, HARYANA 6. ANOOP SETHI (DIRECTOR, UMANG REALTECH (P) LTD.)
R/O. 8 CUSCADEN WALK, APT 1201, FOUR SEASONS PARK, SINGAPORE-249692 ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER HON'BLE DR. S.M. KANTIKAR, MEMBER
For the Complainant : Mr. Praveen K. Sharma, Advocate with
Complainant No. 1 in person For the Opp.Party : For the Respondents 1,3 - 6 : Mr. Vineet Sinha, Advocate
For the Respondent No. 2 : NEMO Dated : 01 Apr 2016 ORDER JUSTICE J. M. MALIK, PRESIDING MEMBER
1. The builders/promoters adopt a Fabian policy ( a dilatory policy ) and harass the consumers no end. The consumers are exasperated by senseless delay. Hopefully, the new changes made recently, would go a long way to pull the consumers chestnuts out of fire (rescue from difficulties).
2. Shri Vikram Puri, complainant No. 1, is a retired Major General and husband of Mrs. Praveen Puri, complainant No. 2. Umang Realtech (P) Ltd./opposite party No. 1 launched a residential apartment project in the name and style of 'Uppal's Canary Residency' situated at Sector 78, Gurgaon, Haryana. The complainants applied for a flat and paid initial booking amount of Rs. 10 lakh to the opposite party on 15.11.2009. The allotment letter was issued in their favour on 30.11.2009. They were allotted unit No. D-1204. An agreement was executed between the opposite parties and the complainants on the same day. A copy of the executed agreement, a brochure declaring expected completion date as Q4 2011 and an assurance of penalty of Rs. 5 sq. ft. per month for any delay in delivery, was provided.
3. A tripartite agreement for loan was signed between the complainants, the opposite parties and the State Bank of India on 22.1.2010. On 16.4.2010, the complainants were informed by the opposite parties that a joint venture with ICP Investments(Mauritius) Limited has been entered into and the project will now be developed by a company named 'Umang Real Tech (P) Ltd. An addendum to the Builder Buyers' Agreement with the approval of the State Bank of India was executed between the complainants and the opposite parties transferring all the obligations of Uppal Housing (P) Ltd. to Umang Real Tech (P) Ltd. on 20.10.2010. Between January, 2011 to April, 2015, periodic payments, as demanded, were duly made to the opposite parties amounting to Rs.80,56,457/- only. The complainants further regularly visited the project site and requested to expedite the construction and hand over the house with early completion. On 13.4.2015, the opposite parties vide their letter asked the complainants to make a payment of an amount equivalent to INR 12,06,826/- and accept the possession of the unit. It transpired that the opposite parties failed to allot 'right to use' car parking area on 27.04.2015, as specifically agreed to under the agreement. Through their letter to the opposite parties, the same was highlighted with other deficiencies noticed in the apartment. The complainants also noticed that the opposite parties had provided no compensation to the complainants for delay in completion as promised earlier. On 10.5.2015, the complainants, after reworking out the compensation due to them, through their letter, forwarded a Cheque of INR 4,76,000/- only, with a promise to pay the balance amount of Rs. 1 lakh, after the deficiencies and the 'right to use' car parking issues were resolved. On 12.5.2015, the opposite parties declined and returned the Cheque and refused to adjust compensation for delay.
4. The complainants reason out with the opposite parties the logic and resend the payment and again query regarding the said 'right to use' car parking on 19.5.2015. The opposite parties returned the cheque and ignored the plea of the complainants including the issue of 'right to use' car parking.
5. The complainants sent legal notice to the opposite parties asking for refund of payment on the ground of deficiency in service and espoused unfair practices on 17.7.2009. On 28.7.2015 the opposite parties declined all accusations, threatened that penalties if refund was insisted upon the complainants and apportion the blame on the complainants for the delay due to delayed payments, would be imposed.
6. Ultimately, this complaint was filed in this Commission with the following prayers :
"I. For removing the deficiency in services; direct the opposite parties to refund the amount paid by the complainants to the opposite parties so far. i.e INR 80,56,457/- (Rupees eighty Lac Fifty Six Thousand four Hundred and Fifty Seven only); and II. For removing the deficiency in services and for indulging in Unfair Trade Practices; direct the Opposite Parties to refund the aforesaid amount with interest at the punitive rate of 18% p.a. from the time of payment till its realization; and III. For indulging in Unfair Trade Practices; direct the Opposite parties to pay to the complainants an amount equivalent to INR 3,00,000/- on account of Mental Harassment and Agony suffered by the complainants and IV Direct the Opposite Parties to pay an amount of INR 1,50,000/- as Legal Cost incurred by the complainants; and V. To pass such other order or direction as this Hon'ble Commission may deem fit."
7. The opposite parties No. 1, 3, 4, 5 and 6 have listed the following defences. A demand for completion of internal and external plaster @ 10% and other charges @ 25 % amounting to Rs.8,92,226/- was raised on 10.10.2011. The payment is outstanding till date. Since the payment is still outstanding, therefore, there is no delay on the part of opposite parties in handing over the possession. The Opposite parties have filed a computation-sheet clearly depicting the days of delay in payment as Annexure R-2.
8. It is explained that Siyona Constructions Private Limited and opposite party No. 2, Uppal Housing (P) Limited executed a collaboration agreement dated 03.1.2007 for development of a Group Housing Complex known as "Monsoon Breeze, Gurgaon", (earlier known as 'Canary Residency') on land belonging to Siyona at Village Naurangpur, Tehsil and District Gurgaon. The complainants approached opposite party No. 2 and the complainants were allotted Penthouse No. D-1204/1304 admeasuring a super area of approximately 3235 sq. ft. in the project. Copy of the application form given by the complainants is filed as annexure R-3. The complainants and opposite party No. 2 executed an Apartment Buyer's Agreement on 30.11.2009. The opposite party No. 2 had agreed to sell the said apartment alongwith a car parking space in the project for a total sale consideration of Rs.88,75,400/-, which was to be paid by the complainants in accordance with the Construction Linked Payment Plan. Copy of the agreement has been placed on record as Annexure R-4. As already explained, on 3.1.2007, the answering opposite parties stepped into the shoes of opposite party No. 2. The complainants also executed an addendum dated 12.04.2010 to the agreement, the copy of which is Annexure - 5.
9. Thereafter, the answering opposite parties vide letter dated 13.04.2015, offered the possession of the apartment to the complainants and demanded Rs.12,06,826/- only towards the final outstanding payment. Several reminders were issued but the complainants failed to perform their part of duty. Copy of offer of possession was given on 13.04.2015. The answering defendants have also quoted clause 7.1 and 7.2 of the agreement, which runs as follows:-
"7.1 The Developer, Subject to Force Majeure, undertake to commence the work of development and construction of the proposed Housing Complex within three months from the date of sanction of the Building Plans/revised plans by the concerned authorities and shall complete the construction work within 36 months from the date of commencement of construction and shall thereafter offer the possession of the said Apartment to the Buyer.
7.2 If the completion of the construction of the Complex is delayed by reason of civil commotion or by reason of war or enemy action or earthquake or any Act of God or if non-delivery of possession is result of any statute, Notice, Order, Rule or Notification of the Judiciary/Government and/or authority, or for any other reason beyond the control of the Developer, then in any of the aforesaid events the Developer shall be entitled to a reasonable extension of time for offering delivery of possession of the said Apartment."
10. It is alleged that the complainants have waddled out of the commitments and are persistent defaulters. Again, in order to withheld the legitimate dues, the complainants vide letter dated 10.05.2015 maliciously issued a cheque of Rs.4,76,000/-, after adjusting of Rs.6,30,0825/- towards delay compensation. Copies of the letters are placed on record as annexure R-7 and R-8, respectively. Again, as per clause 3.3 of the agreement, opposite party No. 1 is entitled to claim escalation of BSP, which admittedly has not been charged by the answering opposite parties. The opposite party No. 1 returned the above said cheque in the sum of Rs.4,76,000/- and advised the complainants to pay a sum of Rs.12,06,826/- vide copy of the letter ex. R-9. It is clear that on the point of surrender of the flat, the opposite parties can deduct the earnest money but the complainants went ahead and issued a Legal Notice dated 17.07.2015, the contents of which are based on the concocted and misleading facts. The notice and reply have been placed on record as Ex. R-10 and R-11. It is averred that the complainants be directed to pay the remaining amount with interest @ 12% per annum. It is contended that the present complaint is not legally maintainable. The extensive technical and material evidence would be required to be led.
11. In Polymat India P. Ltd. and Anr. Vs. National Insurance Co. Ltd. and Ors. AIR 2005 SC 286, it was held :
"The terms of the contract have to be construed strictly without altering the nature of the contract as it may affect the interest of the parties adversely."
The complainants have failed to establish any deficiency or unfair trade practice on the part of the opposite parties. Timely payment is essential for the timely development of any project. All the other allegations have been denied.
12. We have heard the learned counsel for the parties. The learned counsel for the opposite parties vehemently argued that there is no unfair trade or deficiency on the part of opposite parties. Learned counsel for the opposite parties has placed reliance upon the judgment of this Bench titled as Rummy Chabbra vs. Sweta Estates Pvt. Ltd. and Ors., Consumer Complaint No. 129 of 2011, decided on 20.1.2016. He lastly pleaded that the complainants are not entitled to any interest.
13. We are unable to clap any significance with these submissions. The judgment cited by him hardly dovetails with the facts of this case. Learned Counsel for the complainants argued that the complainants are no more interested in having this apartment because of inordinate delay on the part of the opposite parties. Our attention was invited towards the brochure, which clearly mentions :
"The plans were sanctioned by the Director Town and Country Planning vide memo No. 2439 dated 23.12.2008 and immediately thereafter the construction was stated but taking the date of sanction as the base and as per the clause 7.1 of the Apartment Buyer's Agreement we will endeavor to offer the possession of the apartment latest by 31st December, 2011."
14. It was argued that four years have elapsed and thereafter the offer of possession was made. The opposite parties should have accepted the sum of Rs. 4,76,000/- sent by them and should not have raised the dispute about car parking. The opposite parties declined to take that amount and refused to make payment for delay period as clearly stipulated in the agreement. It is surprising to note that on the one hand, the opposite parties submit that the terms of contract should be construed strictly without altering the nature of the contract as it may affect the interest of the parties adversely but on the other hand, the opposite parties themselves have not complied or fulfilled with the conditions stipulated in the agreement. The delay of 4 years is a huge delay and we fully agree that after the lapse of about 6-7 years, the complainants had the option to try their luck somewhere else. It is also clear that they had paid the major portion of the consideration of the apartment. The opposite parties want to have the benefits of both the worlds. They have utilized hard earned money of the complainants for a considerable time. They want to handover the possession of the flat after a lapse of six years, that is almost the double time, which was agreed between the parties and do not want to pay the costs for delay.
15. It is well settled that justice delayed is not only justice denied, it is also circumvented, justice mocked and system of justice undermined.
16. In support of his case, learned counsel for the complainants has placed reliance on the following authorities. In Subhash Chander Mahajan and another vs. Parsvnath Developers Ltd., Consumer Complaint No. 144 of 2011, decided on 5.5.2014, interest @ 18% was granted. Same is the position in other judgments reported in Sangeeta Arora vs. DLF Universal Ltd., Revision Petition No. 2286 of 2012, decided on 28.05.2013; Dewan Ashwani & Ms. Anuradh Natarajan and Ors. Vs. Unitech Reliable Projects Pvt. Ltd., 1986-2015 (1) Consumer 574 (NS), decided on 7.5.2015; Pooja Constructions Limited vs. Subhash Patel and another, 2015 SCC Online NCDRC 3501, revision petition No. 1569 of 2015, decided on 1.12.2015; Dr. N. Y. Kachawalla Mercantile Building vs. The Orbit Corporation Limited, 2014 SCC Online NCDRC 413, consumer complaint No. 321 of 2013, decided on 5.8.2014; Kavit Ahuja vs. Shipra Estate Ltd. and Ors., 2015 SCC Online NCDRC 930, consumer case No. 146 of 2010, decided on 12.02.2015; Smt. Reshma Bhagat & Ors. Vs. M/s Supertech Ltd., 2016 SCC Online NCDRC 68, Consumer Complaint No. 118 of 2012, decided on 4.1.2016; M/s Modi Builders & Realtors & Ors. Vs. Levaka Usha Reddy, 2015 SCC Online NCDRC 3993, First Appeal No. 183 of 2013, decided on 16.10.2015; M/s Sai Arvind Property Developers (Builders) vs. Sri Koduru Subba Reddy & Ors., 2012 SCC Online NCDRC 233, First Appeal No. 530 of 2011, decided on 7.5.2012 and Brig. (Retd.) Kamal Sood vs. DLF Universal Ltd., 2007 SCC Online NCDRC 28, First Appeal No. 557 of 2003, decided on 20.04.2007.
17. In the result, we hereby pass the following order.
(i) The opposite parties can sell this flat to any third person, not before the compliance of rest of the order.
(ii) The opposite parties are directed to return Rs.80,56,457/- to the complainants with interest @ 18% per annum from the date of deposit till its realization.
(iii) The opposite parties are directed to pay compensation and litigation charges in the sum of Rs.25,000/-. The said amount be paid within a period of 90 days from today, otherwise, it will carry interest @ 18% per annum till its realization.
18. In view of the above terms, the complaint is disposed of accordingly.
......................J J.M. MALIK PRESIDING MEMBER ...................... DR. S.M. KANTIKAR MEMBER