Anita Raj @ Anita Singh Madan vs M/s Country Colonisers Private Limited

Heard Mr. Bhupender Pratap Singh, Advocate, for the complainant and Mr. Rakshit Sharma, Advocate, for opposite party.

Anita Raj @ Anita Singh Madan has filed above complaint for directing M/s. Country Colonisers Private Limited, (the opposite party) to (i) refund entire amount deposited by the complainant with interest @18% per annum from the date of respective deposit till refund; (ii) pay Rs.200000/-, as compensation for mental agony and harassment; (iii) pay Rs.50000/-, as litigation costs; and; (iv) any other relief which is deemed fit and proper in the facts and circumstances of the case.

The complainant stated that M/s. Country Colonisers 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 project. The opposite party launched a Mega Integrated Township project, in the name of “Wave Estate”, at Sector-85 & 99, S.A.S. Nagar, district Mohali, Punjab, in the year 2012. Inside of this project, the opposite party launched a group housing project in the name of “Wave Gardens” and made wide publicity of its facilities and amenities. The opposite party provided “subvention scheme”, under which, 15% of basic sale price had to be given by the buyer within 45 days of booking and 85% had to be advanced by HDFC as loan to the buyer, on which the opposite party agreed to pay Pre-EMI for a period of 36 months. Believing upon the representations of the opposite party, the complainant booked a 3BHK+S flat on 23.05.2013 and deposited the booking amount of Rs.500000/-. The opposite party allotted Apartment No.G-803, size 1990 sq.ft. on 29.08.2013. The opposite party informed that due to revision in layout plan, unit of the complainant would be changed and demanded Rs.855676/- which was deposited by the complainant on 14.10.2013 and the opposite party changed the unit to D-1402. The opposite party later on informed that the loan was not sanctioned by HDFC and on this ground execution of agreement was delayed. The opposite party executed Apartment Allottee’s Arrangement in her favour on 13.04.2015, after sanction of the loan by HDFC. The opposite party unilaterally shifted delivery of possession in Clause 5.1 of Apartment Allottee’s Arrangement as 30 months period with extended period of six months from the date of execution of arrangement or from start of construction, whichever is later. The opposite party again vide letter dated 22.04.2015, confirmed that the opposite party would pay Pre-EMI for a period of 36 months or till delivery of possession, if possession is delayed. Till March, 2016, the opposite party realized total Rs.8726193.26 out of basic sale price of Rs.8855500/- but the construction was not started. The arrangement was executed on 13.04.2015 and 36 months period expired on 12.04.2018. As the construction was not proceeding, this complaint was filed on 18.05.2018, alleging deficiency in service.

The opposite party filed written reply on 31.07.2018, in which, booking of the flat by the complainant on 23.05.2013, allotment of the flat, execution of Apartment Allottee’s Arrangement in her favour on 13.04.2015 and payments made by her, have not been disputed. The opposite party took plea that due to force majeure reasons the construction was delayed; inasmuch as (i) As per Master Plan, Greater Mohali Area Development Authority had to construct sector road but it had failed to acquire land for construction of sector road and construct it. Due to which access to the project land was blocked and the trucks carrying raw materials for building construction were not able to reach there easily. (ii) State Government of Punjab provided the project land through Memorandum of Agreement dated 03.02.2006. Under this agreement, State Government agreed to acquire land to the extent of 10% of total project land. The opposite party wrote a letter dated 19.01.2012 to Land Acquisition of Officer, Greater Mohali for acquiring 23.21 acre land falling within layout plan of the project and noted as “critical area”. But Land Acquisition Officer has not initiated proceeding for acquisition of land. The opposite party is entitled for extension of period for above force majeure reasons, which were beyond their control under clause-5.2 of the agreement. Preliminary issues that the complainant is not a consumer, has also been raised.

The complainant has filed Affidavit of Evidence and Affidavit of Admission/Denial of document of Anita Raj @ Anita Singh Madan and documentary evidence. The opposite party has filed Affidavit of Evidence and Affidavit of Admission/Denial of document of Harmandep Singh Kandhari and documentary evidence. The complainant has filed her short synopsis of arguments. The complainant filed IA/18639/2018, stating that the opposite party had stopped payment of Pre-EMI interest after March, 2018 and the complainant was paying Pre-EMI from May, 2018. The opposite party filed IA/1679/2020 and stated that construction of Towers D, E, F, 1 BHK have been completed that the opposite party had applied for issue of “partial completion certificate” on 09.12.2019.

We have considered the arguments of the counsel for the parties and examined the record. In Apartment Allottee’s Arrangement dated 13.04.2015, the opposite party has mentioned that the project was approved on 21.12.2011 and Building Plan of “Wave Gardens” was approved on 18.05.2012. The receipts filed by the complainant shows that the opposite party has realized instalments from HDFC at various levels of construction. In the receipt dated 20.03.2016, it has been mentioned that “on completion of structure/brick work”. From these documents, it is proved that the construction was not stopped at any time for force majeure. Therefore plea of force majeure as raised in written reply is not liable to be accepted.

The complainant has stated that at the time of booking of the apartment on 23.05.2013, she was assured that the possession would be delivered within 36 months. However, in Apartment Allottee’s Arrangement executed on 13.04.2015, the opposite party unilaterally shifted delivery of possession in Clause 5.1 of Apartment Allottee’s Arrangement as 30 months period with extended period of six month from the date of execution of arrangement or from start of construction, whichever is later. Even this period has also expired on 12.04.2018. The opposite party, in IA/1679/2020, has stated that construction of Towers D, E, F, 1 BHK have been completed that the opposite party had applied for issue of “partial completion certificate” on 09.12.2019. But till today there is nothing on record to prove that “completion certificate” has been issued. The opposite party realized more than 90% of sale price. There is unreasonable delay in offer of possession. Supreme Court in Pioneer Urban Land & Infrastructure Vs. Govind Raghavan, (2019) 5 SCC 725 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 the result, the complaint is partly allowed. The opposite party is directed to refund entire amount deposited by the complainant 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. It shall be open to the opposite party to satisfy the loan of the bank first and pay balance amount to the complainant.