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Judgment
Heard Mr. Vaibhav Gaggar, Advocate, for the complainants and Mr. Sukumar Pattjoshi, Senior Advocate, assisted by Mr. Bimlendu Shekhar, Advocate, for the opposite party.
Initially 59 (at present 180) set of the allottees of the flat in project “Palm Grove Heights” have filed above complaint for directing the opposite party to (i) pay delay compensation in the form of interest @ 21% p.a. or any other rate, deemed appropriate by this Commission, on the deposit of the allottees, from due date of possession till the date of handing over possession; (ii) refund the cost of parking with interest @ 21% p.a. from the date of realization till the date of refund; (iii) refund Rs.85875/- with interest @ 21% p.a. from the date of realization till the date of refund, realized as club membership charge and provide a community centre; (iv) award compensation for reducing the lifts from four lifts as promised to two lifts as installed or in alternative the opposite party be directed to provide four lifts; (v) provide appropriate number parking slots for the visitors; (vi) refund enhanced stamp duty, service tax, VAT, enhanced cost for increased area, replacement fund and interest free security deposit with interest @ 21% p.a. from the date of realization till the date of refund; (vii) pay compensation for harassment and mental agony; and (viii) any other order which is deemed fit and proper in the facts and circumstance of the case.
The complainants filed IA/14068/2017 under Section 12(1)(c) of the Consumer Protection Act, 1986, for permission to file joint complaint in representative capacity, which was allowed on 09.05.2018. In amended memo of the parties filed on 25.03.2022, 184 sets of allottee are shown as the complainants. Later on an affidavit was filed on 19.10.2023, in which, it has been stated that complainants-3, 6, 12 and 14 have no common interest and 180 sets allottee have common interest.
The complainants stated that the opposite party was a company incorporated under the Companies Act, 1956, having its registered office at 28, Barakhamba Road, New Delhi-110001. The opposite party launched a group housing project of ‘three bed-room deluxe apartment’, in the name of “Palm Grove Heights”, Ardee City, at villages Wazirabad and Bindapur, Sector-52, Gurgaon and made its wide publicity in the year 2004. Believing upon the representations of the opposite party, the complainants and other allottees booked the apartments in the said project, starting from the year 2004 onward. Possession of the apartments was to be delivered within 30 months from the date of commencement of construction i.e. by January, 2009 as the construction was started on 20.07.2006. However, in spite of timely payment of the instalments, the opposite party failed to deliver the possession in time. On the contrary, the opposite party arbitrarily imposed additional cost for increased area, club charges, replacement fund, electricity charges and interest free security deposit, car parking etc. Due to delay in handing over possession, stamp duty, service tax, VAT etc. have been enhanced. The opposite party has reduced the numbers of lifts from four to two. Numerous flat allottees are aggrieved by above arbitrary acts of the opposite party and there is sameness of the interest of all such allottees. For the purposes of appreciating controversy, the facts of Ashok Mittal and Veena Mittal (complainants-1-a and 1-b) were given as follows:-
Ashok Mittal and Veena Mittal booked the flat in 2005 in the project “Palm Grove East” and were allotted Unit No.1403 saleable area 1850 sq.ft. in Building No.B-3 and Flat Buyer Agreement dated 24.05.2007 was executed in their favour. Later on the opposite party allotted Unit No.204 saleable area 2350 sq.ft. in Building No.A-3, for basic sale price of Rs.5548600/-, Rs.199750/- as EDC, Rs.200000/-, for one covered car parking, Rs.one lac, for one open car parking and Rs.77080/- as additional infrastructural development charges and transferred the money deposited by them for Unit No.204. In order to save his hard earned money, complainant-1 had no option but to accept the subsequent allotment and the opposite party executed Flat Buyer Agreement dated 03.08.2009 in their favour. Payment plan was ‘construction linked payment plan’. The complainants paid instalment as per demand of the opposite party. Clause-20 of the agreement provides 30 months period from the ‘date of commencement of the construction’ for delivery of possession. The opposite party, in its letter dated 03.08.2006, written to Mr. Prem P. Phull & Mrs. Saroj Phull, allottees of Flat No.101 in Building A-1, demanded instalment payable on ‘start of construction’ stating that the construction was started from 20.07.2006. As such due date of possession was January, 2009. Although the opposite party realized 95% of the consideration but failed to handover possession. The allottees formed an association in the name of ‘Palm Grove Heights Owners Association’ who held several meetings with the opposite party since 2010 regarding delay in handing over the possession, in which, the opposite party used to give some tentative date for possession but could not handover possession on such extended date. The association also wrote letters to various authorities including SDM Office, Department of Town and Country Planning, HUDA, Chief Minister’s Office, Prime Minister’s Office and President’s Office. One of the complainants also made a police complaint on 05.12.2014 with the SHO, Sushant Lok Police Station, Gurgaon for delay in delivery of possession.
Shefali Varma, the daughter of Late Ashok Varma, the then Managing Director of the opposite party, filed Civil Suit CS (OS) No. 1781 of 2014, for partition before Delhi High Court and obtained exparte interim order dated 29.05.2014, restraining the defendants from creating third party interest over the properties in dispute including the property of the project. Palm Grove Heights Owners Association filed IA/24289/2014 for its impleadment in Civil Suit CS (OS) No.1781/2014 and IA/24290/2014 for modification of the order dated 29.05.2014. Delhi High Court, vide order dated 15.07.2015 appointed Ms. Asha Jain Madan, Advocate as Local Commissioner and directed her to verify genuineness of the flat buyers agreement of the allottees and on her recommendation, the opposite party was directed to execute the document and handover the possession. As and when required the allottees produced their allotment letter, flat buyer’s agreement and receipts of the deposit before her, who after verifying it recommended for possession. The opposite party sent a letter dated 14.10.2015 to the allottees informing that flat numbers were rechristened and there was no change in the location and other terms and conditions of the agreement. On the recommendation of Local Commissioner, the opposite party issued possession letter of the respective apartments to the complainants on 30.07.2016 but took 1-7 months in handing over possession thereafter.
The complainants and other allottes signed the indemnity bond under coercion as the opposite party refused to handover possession unless indemnity bond was signed. As per clause 20 of the agreement, the opposite party was liable to pay compensation @ Rs.5/- per sq. ft. per month for delay in handing over the possession, which is very low. As the opposite party has charged interest @ 21% per annum for delay in making payment, the complainants are also entitled for interest @ 21% per annum on their deposit for the delayed period. The opposite party also charged Rs.85875/- per year from the complainants and other allottees, for club membership charges, which the opposite party failed to provide. In the original layout plan, there was no provision of club and the opposite party unilaterally made changes in the layout plan without consent of the allottees. The opposite party also burdened the complainants and other allottees with hidden charges which were not part of the agreement. In the original layout plan there was provision of four lifts in each tower (i.e. three passenger lifts and one service lift) but the opposite party has provided only two lifts. The opposite party has additionally charged Rs.100000/- to Rs.200000/- from each allottee for car parking in violation of the judgment of Supreme Court in Nahalchand Laloochand Pvt. Ltd. vs. Panchali Cooperative Housint Society Ltd. AIR 2010 SC 3607 and Section 3 (f) of Haryana Apartment Ownership Act. The opposite party has unilaterally increased the area of the apartment without consent of the allottees and imposed additional cost on each allottee for the increased area. The opposite party also imposed replacement fund arbitrarily without consent of the allottees without there being any up-gradation or addition in the plant and machinery. The opposite party has also charged an amount of Rs.50000/- towards power back-up security charges without providing the electricity meter to the allottees in spite of the fact that pre-paid meters have been provided and such charges are taken only in case of post-paid meters. With these allegations, the complaint has been filed on 28.08.2017.
The opposite party filed its written version on 17.11.2017 stating that the company made all efforts to deliver the possession on time but due to some unavoidable circumstances, the possession could not be delivered on time. Late Ashok Varma, the then Managing Director, was handling the project, who unfortunately fell sick in 2006-2007 and unable to look after day to day work of the project. He expired on 01.06.2008. After his death some of the employees of the company left the employment. Mrs. Meenakshi Varma widow of Ashok Varma took over charge of the project. High Court of Punjab & Haryana, restrained the builders in the state from using ground water in construction work. The opposite party had to arrange water from alternate source, due to which, the construction work had become slow and also cost was increased. She was new in the business and completed the project and applied for issue of ‘occupation certificate’ on 25.03.2013. The revised building plan was approved by DTCP, Haryana on 26.08.2014 and ‘occupation certificate was issued on 09.10.2015. In the meantime one of her daughter namely Shefali Varma filed Civil Suit CS (OS) No.1781 of 2014, for partition before Delhi High Court and obtained exparte interim order dated 29.05.2014, restraining the defendants from creating third party interest over the properties in dispute including the project property. Palm Grove Heights Owners Association filed IA/24289/2014 for impleadment in Civil Suit CS (OS) No.1781/2014 and IA/24290/2014 for modification of the order dated 29.05.2014. Delhi High Court, vide order dated 15.07.2015 appointed Ms. Asha Jain Madan, Advocate as Local Commissioner and directed her to verify genuineness of the flat buyers agreement of the allottees. After verification of the agreement, Local Commissioner gave list of the genuine allottees. The opposite party submitted final demands to Local Commissioner on 09.11.2015, 16.11.2015 and 01.12.2015 and after her approval, possession was offered to the allottees from January, 2016 to July, 2016. Thereafter, as and when the allottees completed the formalities, conveyance deed was executed and possession was handed over to them without any further delay. At the time of executing the conveyance deed none of the allottee challenged the final demand. The allottees also executed Indemnity bond after taking possession. The opposite party constructed the club for use of the residents and club charges were demanded as per the agreement and no extra amount was charged. All allottees have paid club charges as per agreement without any protest. Decrease in the lift was not unilateral rather it was with the consent of flat buyer’s association and as per approved building plan. Two lifts have been provided each block on the advice of the experts, which also reduce the maintenance cost of the lifts. The agreement between the parties permits the opposite party to make such changes. The allegation of increase in the statutory duty is false. In the agreement it is clearly provided that the stamp duty would be payable on the date of execution by the allottees. The stamp was paid to the government and the opposite party has no role to play in it. Parking charges have been taken on the basis of the area specified for parking. The complainants voluntarily agreed to pay parking charges and now they cannot raise any grievance for the same. In the agreement, it is clearly mentioned that the area is tentative and the opposite party has all rights to increase or decrease the area. The area has been increased due to alteration and modification in the plan. The allegation that the opposite party unilaterally changed in the area is not correct. The opposite party has changed for 10% increase in the area whereas the area provided to them has been increased more than 10%. Replacement fund includes up-gradation and addition etc. in the plant & machinery within the complex, including lifts, electric sub-station, pumps, fire fighting equipment or any other plant/equipment. Replacement fund was charged for the purpose to meet out any contingency in future. Interest free security deposit and security charges are charged as agreement and law and the practice followed in the Gurgaon. In case of poor supply of electricity, the electricity back will be provided from generator set. The opposite party has also provided proper security system in the entire complex. After accepting final demand, executing the conveyance deed and indemnity bond and taking possession, under the order of Delhi High Court, this complaint is not maintainable as all disputes between the parties have been settled. Complainants-10, 11 and 25 filed complaint before State Commission/ District Forum on similar allegations and relief, which were dismissed as withdrawn as such the complaint on their behalf is not maintainable and barred by res-judicata. 57 complainants have purchased the flats from open market on re-sale and or not original allottees. They purchased the flats, knowing well that the project has been delayed. They are not entitled for delay compensation. More than 100 allottees have let out their flats, which prove that they booked the flats for commercial purpose. Only 15% of total allottees have filed this complaint and they cannot be categorised as ‘numerous allottees’. There is no sameness of the interest and joint complaint is not maintainable. In any case, limitation for filing the complaint started running from the date of filing of the application IA/24290/2014, while the complaint was filed on 28.08.2017 and it is time barred.
The complainants filed the Rejoinder and Affidavit of Evidence of Cdr. Sudhanshu Dev Sharma and documentary evidence. The opposite party filed the Affidavit of Evidence of Meenakshi Varma and documentary evidence. The opposite party has filed copy of Writ Petition No.38128 of 2018 filed by Palm Grove Heights Owners Association for declaring the Indemnity Bonds executed by the flat buyers at the time of taking possession as illegal and directing the opposite party to get a fresh Indemnity Bond in consonance with the provisions of Haryana Apartment Ownership Act, 1983 and Haryana Apartment Ownership Rules, 1987. Both parties also filed their written arguments.
We have considered the arguments of the counsel for the parties and examined the record. Although IA/14068/2017 filed under Section 12(1)(c) of the Consumer Protection Act, 1986, for permission to file the complaint in representative capacity has been allowed on 09.05.2018 but the opposite party again raised this issue that there is no sameness of interest among the complainants, which include first allottees, re-allottees, self-occupied, multiple flat owners, purchasers from open market, heirs of original allottees and the allottees whose right is barred due to filing complaint and dismissing it as withdrawn.
Sameness of the interest means same kind of right, privilege, power and immunities. Quantum of interest or date of cause of action may be different but it is not a relevant consideration for deciding sameness of the interest. The complainants claimed delay compensation and refund of the amount realized towards car parking, club charges, increase in super area charges, less number of lifts and taxes etc. Supreme Court in Laureate Buildwell Pvt. Ltd. Vs. Charanjeet Singh, AIR 2021 SC 4229, held that a subsequent purchaser steps into shoes of the original allottee with same right and liability except for delay compensation as delay period would be counted from the date of his purchase. Booking multiple flats itself does not oust an allottee from the definition of ‘consumer’. It is for the opposite party to plead and prove that such allottee has booked the flat for for commercial purpose. The opposite party has not adduced any evidence to prove that any of the allottee was in business of purchasing and selling the flats. So far as the allottees whose complaint was dismissed as withdrawn without liberty to file fresh complaint, the complainant has affidavit that they had no same interest. Therefore we do not find any reason to review the order dated 09.05.2018, granting permission to the complainants to file complaint in representative capacity on behalf of numerous allottees.
Although the project launched in the year 2004 but the construction was started on July, 2006. The opposite party stated that Late Ashok Varma, the then Managing Director, was handling the project, who unfortunately fell sick in 2006-2007 and unable to look after day to day work of the project. He expired on 01.06.2008. After his death some of the employees of the company left the employment. Mrs. Meenakshi Varma widow of Ashok Varma took over charge of the project. Due to delay in completion of the project, the allottees formed an association, namely “Palm Grove Height Investors Association”, who formed a project monitoring committee. In order to focus delivery of possession to the existing allottees, construction of first phase was started due to which, previous allotment were shifted with consent of the parties and a fresh agreement was executed between them. In the meantime, High Court of Punjab & Haryana, restrained the builders in the state from using ground water in construction work. The opposite party had to arrange water from alternate source, due to which, the construction work had become slow and cost was increased. She was new in the business but completed the project under the supervision of the monitoring committee and applied for issue of ‘occupation certificate’ on 25.03.2013. The revised building plan was approved by DTCP, Haryana on 26.08.2014 and ‘occupation certificate was issued on 09.10.2015. In the meantime one of her daughter namely Shefali Varma filed Civil Suit CS (OS) No.1781 of 2014, for partition before Delhi High Court and obtained exparte interim order dated 29.05.2014, restraining the defendants from creating third party interest over the properties in dispute including the project property. Due to force majeure reasons the construction and possession was delayed. Due to co-ordination of the allottees and the association, it has been completed. The opposite party is not liable to pay delay compensation.
It is not disputed that Palm Grove Heights Owners Association filed IA/24289/2014 for its impleadment and IA/24290/2014 for modification of the order dated 29.05.2014 in Civil Suit CS (OS) No.1781/2014. On 15.07.2015, IA/24289/2014 was not pressed. As the plaintiff and the defendants had no objection in delivery of possession and execution of the deed in favour of genuine allottees, Delhi High Court, vide order dated 15.07.2015 appointed Ms. Asha Jain Madan, Advocate as Local Commissioner and directed her to verify genuineness of the flat buyers agreement of the allottees and on her recommendation, the opposite party was directed to execute conveyance deed and deliver possession. Local Commissioner verified the genuine allottees and recommended for handing over possession to them. The opposite party submitted final demands to Local Commissioner on 09.11.2015, 16.11.2015 and 01.12.2015. After his approval final demand along with offer of possession were issued to the allottees. Then, as and when the allottees completed the formalities, possession was handed over to them, after executing conveyance deed. At the time of executing the conveyance deed none of the allottee challenged the final demand. The allottees also executed Indemnity bond after taking possession. One such Indemnity Bond signed by Manish Malhotra and Satish Chander Malhotra (complainants-5(a) and 5(b) has been filed. Clause-2 of the Indemnity Bond is quoted below:-
“2. That the executants undertake and declare that they have no other issue, claim for compensation, penalty of whatsoever nature, whether present or future etc. with builder-company. Further executants affirm and declare that they have no grievance against the company, all the issues/complaint are amicably resolved and all the issues/complaints deemed settled with the company as the company handed over the physical possession of the flat. The executants undertake that they will not raise any claims, demands, actions, suits, disputes, proceedings or litigations of any nature whatsoever and executants will not re-open the issues/complaints/cases of whatsoever nature in future against the company before any court of law/police or any authority/tribunal.”
The opposite party in paragraph-7 of the written version, has stated that they had not charged interest on delayed payment and by executing indemnity bond, the complainants abandoned their all rights. Since no further obligations have been laid on any of the parties, therefore by no stretch of imagination, it can be called that there is a deficiency in service. Due to execution of indemnity bonds by the allottees, the counsel for the opposite party submitted that the complaint is barred on the doctrine of waiver as the complainants had abandoned their right and after expiry of one year they cannot be permitted to raise same dispute.
The complainants do not dispute deposit of the amount of final demand, execution of the conveyance deed, taking over possession and execution indemnity bond by the allottees. The complainants stated that in the midst of offering possession, the opposite party coerced the complainants and other allottees having community of interest and common grievances to sign the Indemnity Bonds between January, 2016 to July, 2016 in order to bind the complainants and other allottees having community of interest and common grievances and to absolve themselves from all the liabilities arising out of delay in handing over possession, unfair trade practices adopted and numerous deficient services provided by them. The complainants and other allottees having community of interest and common grievances were desperate to get possession after waiting for years, signed the said Indemnity Bond under coercion and duress. Initially, they protested and refused to sign Indemnity Bond, but, the opposite party steadfastly refused to handover possession unless said document was signed and handed over.
This plea of the complainants is not liable to be accepted inasmuch as none of the allottees made any complaint in this respect either to the Local Commissioner or to the High Court under whose direction possession had to be delivered. If there was coercion for signing the Indemnity Bonds or it was a condition precedent for handing over possession then it was contempt of the order of High Court and there is no reason for the complainants for not making any complaint in this respect either to the Local Commissioner or to the High Court. The complainants have not taken any plea that they protested the final demand. After deposit of the demanded amount, conveyance deed was executed and possession was delivered. After delivery of possession Indemnity Bonds were signed by the allottees January, 2016 to July, 2016, while this complaint was filed on 28.08.2017.
The complainants relied upon the judgement of Supreme Court in Wg. Cdr. Arifurer Rahman Khan Vs. DLF Southern Homes Pvt. Ltd. (2020) 16 SCC 512, in which, indemnity bond was obtained during pendency of the complaint as such this case has no application. Supreme Court in Debashis Sinha Vs. R.N.R. Enterprises (2023) 3 SCC 195, held that after execution of the sale deed, the consumer dispute in respect of deficiency in service can be raised.
But in the present case all the disputes which was prior to execution of the conveyance deed and taking possession have been settled and Indemnity Bond was executed by the allottees. After about one year this complaint has been filed. Supreme Court in Kalpraj Dharamshi Vs. Kotak Investment Advisors Limited, (2021) 10 SCC 401, held that for considering as to whether a party has waived its rights or not, it will be relevant to consider the conduct of a party. For establishing waiver, it will have to be established that a party expressly or by its conduct acted in a manner, which os inconsistent with the continuance of its rights. However mere at of indulgence will not amount to waiver. A party claiming waiver would also not be entitled to claim the benefit of the waiver, unless it has been altered its position in reliance on the same. For applying the principle of waiver, it will have to be established that though a party was aware about the relevant facts and the right to take an objection, he has neglected to take such objection. Thus for constituting acquiescence or waiver it must be established that though the parties knows the material facts and is conscious of his legal rights in a given matter but fails to assert its right at the earliest possible opportunity, it creates an effective bar of waiver against him. Whereas the acquiescence would be a conduct where a party is sitting by, when another is invading his rights. The acquiescence must be such as to lead to the inference of a licence sufficient to create a new right in the defendant. Waiver is an intentional relinquishment of a right. It involves conscious abandonment of an existing legal right, advantage, benefit, claim or privilege. It is an agreement not to assert a right.
Execution of indemnity bonds by the allottees in the present case was an intentional relinquishment of a right. After expiry of more than one year the complainants cannot be permitted to raise same dispute. The complaint is liable to be dismissed.
ORDER
In view of the aforesaid discussions, the complaint is dismissed.