Indian Kanoon - Search engine for Indian Law

2. Upon notice, the opposite parties appeared before this Commission. Opposite parties No.1 to 4 filed joint written reply, whereas opposite party No.5 filed separate written reply.

3. Opposite parties No.1 to 4, in their written reply, in which they raised preliminary objections that the complainant purchased the said floor in resale from one Surinder Kaur, which was transferred in his name. He purchased the same for commercial purpose in order to earn profits. However, due to slump in real estate market, he is no longer interested to retain the said unit. The complaint is not maintainable, in view of Arbitration Clause 13 of the agreement. The complainant opted for subvention linked plan, under which the Bank pays the entire remainder of the amount, except for 15% of Basic Sale Price, which is payable by the complainant. Under the Tripartite Agreement, the EMI commences from the month following the month, in which the loan disbursement is complete. Till such commencement, the complainant is liable to pay the Pre-EMI interest, which is the agreed simple interest charged on the loan amount disbursed. The complainant has no cause of action to file this complaint. The complainant cannot take the plea of delay in delivery of possession, as he himself failed to make the payments on time. In fact, due to demonetization and slow down in the markets, the construction sector and payments, which were to be received by the answering opposite parties, were seriously effected and due to that, the work of construction got little delayed, which was beyond the control of the answering opposite parties. Besides this, subsequent restrictions on cash and implementation of GST also halted the construction activities at the site. The prayer of the complainant for refund of the entire deposited amount is not maintainable, in the light of Tripartite Agreement and the payment plan opted by him, because the answering opposite parties have made huge payments on behalf of the complainant on account of Pre-EMI interest. It was further pleaded that the opposite parties entered into a Memorandum of Agreement (MoA) dated 03.02.2006 with the Government of Punjab and as per Clause 5(e) thereof, the State Government was to acquire land under the provisions of Land Acquisition Act, 1894 and transfer the same to the answering opposite parties for development. However, the State Government failed to acquire any land for the answering opposite parties and, as such, the approved plan of the entire project also shows certain "Critical Area' i.e. the lands, which are not in their possession, due to failure of the State Government. The lands, which are not available with them form 10% of the total land required for the project, due to which laying of lines for basic services is not complete. The request was made to the Land Acquisition Collector, Greater Mohali, vide letter dated 19.01.2012, requesting the State Government to acquire 23.21 acres of land, which falls within the master plan of the project, but without any result. However, opposite party No.1 managed to enter into a Land Use Agreement with the local farmer, from whose land an access road has been laid for proper access to the project. Thus, the delay, if any, in the completion of the project is due to inaction on the part of GMADA. The complainant failed to show any agreement with opposite parties No.2 and 4 and, thus, the complaint is liable to be dismissed qua them. On merits, purchase of the apartment, in question, by the complainant in resale is admitted. It was not disputed or denied that the complainant deposited a sum of ₹73,53,008/- with the answering opposite parties. It was pleaded that the construction at the site was started on 30.09.2014 and the answering opposite parties demanded the payment under the subvention plan only thereafter. There was no delay, as 30 months period had to start from the start of construction. If any delay was there, the same is duly explained in the preliminary objections. It was further pleaded that the amount claimed is more than ₹1 Crore, which is beyond the pecuniary jurisdiction of this Commission. It was pleaded that there is no deficiency in service on the part of these opposite parties. Other allegations of the complainant were denied and it was prayed that the complaint be dismissed.

10. Per contra, learned counsel for opposite parties No.1 to 4 vehemently contended that this Commission has no pecuniary jurisdiction to decide this complaint, as the amount involved in this case is more than ₹1 Crore. Another contention raised by the learned counsel for those opposite parties is that the complainant is having two houses, out of which one is situated in Chandigarh and, thus, he is not a 'consumer'. As per Arbitration Clause in the agreement, this dispute between the parties is triable by the Arbitrator. It was further contended that there was no specific period mentioned in the agreement for delivery of possession. The opposite parties were just to make endeavour to deliver the possession of the unit, in question, within 30 months, with an extended period of 6 months from the date of agreement and/or from the date of start of construction of Group Housing named as "Wave Gardens", whichever was earlier. The construction was started on 30.09.2014 and the possession date was to be counted therefrom. Moreover, the complainant cannot allege any delay on the part of the opposite parties, as he himself failed to pay the due amounts regularly on time. It was further contended that the delay, if any, in completing the project was on the part of GMADA, who failed to acquire the land required for the project of the opposite parties, as per MoA dated 03.02.2006. Even a request was made to the Land Acquisition Collector, Greater Mohali, vide letter dated 19.01.2012, to acquire 23.21 acres of land, which falls within the master plan of the project, but to no effect. In these circumstances, no liability can be fastened upon the opposite parties. Moreover, due to demonetization and slow down in the markets, the construction sector and payments which were to be received by the answering opposite parties were seriously effected and due to that, the work of construction got little delayed, which was beyond the control of the answering opposite parties. Besides this, subsequent restrictions on cash and implementation of GST also halted the construction activities at the site. There is no deficiency in service on the part of opposite parties No.1 to 4 and the complaint is liable to be dismissed against them. Reliance was placed on judgment of the Hon'ble National Commission rendered in case Saavi Gupta & Anr. v. M/s Omaxe Azorim Developers Pvt. Ltd. & 3 Ors. Consumer Case No.208 of 2012 decided on 01.10.2012.

17. Now coming to the merits of the case, admittedly, the complainant purchased the unit, in question, in resale from its original allottee. Apartment Allottee(s) Arrangement Ex.C-3 was executed between the parties on 15.12.2012. The total cost of the unit was ₹81,60,125/-. As per Clause 5.1 of the agreement, opposite parties No.1 to 4 were to make endeavour to deliver the possession of the unit, in question, within 30 months, with an extended period of 6 months from the date of agreement and/or from the date of start of construction of Group Housing named as "Wave Gardens", whichever was earlier. Thus, the possession was to be delivered upto 15.12.2015, but they failed to develop/complete the unit, in question, so as to deliver its possession to the complainant by that date. As per Statement of Account, Ex.C-7, the complainant paid a sum of ₹73,53,008/- with opposite parties No.1 to 4. They failed to lead any evidence on record to prove that due to demonetization and slow down in the markets, the construction sector and payments, which were to be received by them, were seriously effected and due to that, the work of construction got little delayed, which was beyond the control of the answering opposite parties. They also failed to prove that the subsequent restrictions on cash and implementation of GST also halted the construction activities at the site.