Amar Nath Kapur vs Vatika India Next Ltd

Heard Mr. Sumit Chander, Advocate, for the complainant and Mr. Himanshu Chugh, Advocate, for the opposite party.

Amar Nath Kapur has filed above complaint for directing the opposite party to (a) issue offer of possession of the plot free from all encumbrance and pay interest @ 18% for delay compensation; (b) pay Rs.30 lacs for harassment and mental agony; (c) pay Rs.50 lacs or actual based on whole sale index price on account of escalation of price of construction and material; (d) pay Rs.100000/- towards cost of litigation; and (e) any other order which this Commission deems fit in the facts and circumstances of the case.

The complainant stated that the opposite party is a company incorporated under the provisions of Companies Act, 1956 and engaged in the business of housing construction and other allied services. The opposite party launched a project, namely, “Vatika India Next” and the complainant booked residential plot No.#C/500/305, Sector-82, Gurgaon, vide application form dated 18.06.2009 by depositing an amount of Rs.2.5 lacs. Thereafter, the complainant also made certain payments. The opposite party sent welcome letter dated 22.08.2009 acknowledging payment of Rs.1005889/-. From the said letter the complainant came to know that the opposite party has wrongly charged Rs.10/- lacs as PLC charges, which were not applicable to the complainant. The plot buyer agreement was executed on 22.12.2009 and the consideration of the plot measuring 500 sq. yards was fixed at Rs.10133850/- including IFMS and PLC. As per agreement, payment was to be made on the basis of development linked plan. As per clause-10 of the agreement, possession of the plot was to be delivered within 3 years from the date of the agreement. The complainant continued to make payment as per schedule. On 19.02.2014, the opposite party sent a letter to the complainant for re-allotment of the plot and the number of the plot was changed to Plot No.11, Lane D-2, Sector-82A, Vatika Next India (500 sq. yrds.). The complainant has accepted the said offer dated 19.02.2014 and sent his acceptance vide email dated 21.03.2014. After expiry of almost three years, the opposite party sent letter another email dated 24.12.2016 whereby it has made re-allotment of another unit No.TWN-003/11/D-2/82/D/500, Sector-82A in the same project. The complainant refused to accept the re-allotment of the new plot as it was located in inferior location. The complainant sent emails dated 25.01.2017 and 30.01.2017 to the opposite party requesting for handing over the possession of the plot. According to the complainant, the opposite party has also made various changes in the layout plan without explaining any reason thereto. Even the complainant was not intimated about the changes in the layout plan nor was consent of the complainant obtained for the same. Even after expiry of almost 8 years, the opposite party failed to deliver the possession of the flat. Alleging deficiency in service and unfair trade practice on the part of the opposite party, the complainant filed the present complaint on 05.04.2017.

The complaint was contested by the opposite party by filing separate written versions on 22.07.2017 wherein booking of the plot, execution of plot buyer agreement and the payments made by the complainant have been admitted. It was stated that the complainant is not entitled for delay compensation as the cost of the plot has increased many times. As the complainant has accepted the fresh allotment in the year 2014, he cannot claim delay compensation. Layout of the project was tentative. Gas Authority of India routed its pipeline through the project which resulted in change of the layout plan. There were also some issues regarding shifting of power and utility lines, due to which delay has occurred. Time was not the essence of the plot buyer agreement. There was no wilful delay on the part of the opposite party and the delay occurred due to the reasons beyond the control of the opposite party. The location of the latest allotted plot is much better than the previous plots. Moreover, the opposite party showed its bona fide and gave more options to the complainant but he refused to accept the same. The opposite party also resisted the complaint on the preliminary issues relating to maintainability. As per clause41 of the agreement, any dispute between the parties can be resolved through arbitration. The complainant has booked the plot for commercial purpose and he is not a consumer under Section 2 (1) (d) of the Consumer Protection Act, 1986. The opposite party stated that there is no deficiency in service on its part and the complaint deserves to be dismissed.

The complainant filed Rejoinder Reply, Affidavit of Evidence of Amar Nath Kapur and documentary evidence. The Opposite party filed Affidavit of Evidence of Sanjay Kumar Jha. Both parties have filed their written arguments.

We have considered the arguments of the counsel for the parties and examined the record. Initially the complaint was filed seeking reliefs as mentioned in para-2 above. On 31.01.2024, the opposite party filed an affidavit of its Director stating that no plot is available in the project. Therefore, the complainant prayed for refund of the amount deposited by him with compensation. There is no dispute that the plot buyer agreement was executed on 22.12.2009 and as per clause-10 of the agreement, possession of the plot was to be delivered within three years from the date of the agreement, subject to force majeure or due to delay in timely payment by the buyer. The opposite party realized two third of the sale consideration till February 2013.  The opposite party changed the allotment on 19.02.2014.  It is also not the case of the opposite party that the complainant has not made timely payment as per schedule. When the opposite party was aware that it is not able to develop the project and deliver the possession for any reason whatsoever, it should not have issued the demand letters and received the payments. The opposite party has not adhered to anything in the agreement, except the payment schedule.  Finally on 31.01.2024, the opposite party is saying that they are not in position to hand over even the changed plot or any other alternate plot.  Realization of 2/3rd consideration and keeping it for more than ten years amounts to unfair trade practice.  Thus, the complainant is entitled for refund of the amount deposited by him with interest, and punitive damages.

As far as question of arbitration is concerned, Supreme Court in M/s Emaar MGF Land Limited vs. Aftab Singh – I (2019) CPJ 5 (SC), laid down that Arbitration clause in the Agreement does not bar the jurisdiction of the Consumer Fora to entertain the Complaint. The opposite party has taken a objection that the complainant has booked the plot for commercial purpose, but it has not adduced any evidence to substantiate the allegation.

ORDER

In view of the aforesaid discussion, the complaint is partly allowed with cost of Rs.50000/-. Opposite party is directed to refund the entire amount deposited by the complainant with interest @ 9% per annum from the date of respective deposits till realization and pay punitive damages of Rs.1000000/-, within 2 months from this order.