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Judgment
M. Shreesha, J
This Complaint has been filed under Section 21 (a) (i) of the Consumer Protection Act, 1986 (in short "the Act") against M/s. Lauraete Buildwell Pvt. Ltd. (hereinafter referred to as "the Developer"), seeking the following reliefs:
Direct the Opposite party to refund the consideration amount of Rs.1,93,70,883/- was received by the opposite party from the Complainant towards the 'said flat' along with interest @ 24% p.a. from the date when the different instalments were paid; and
Direct the Opposite party to pay an amount of Rs.5,00,000/- as compensation to the Complainant for harassment and mental agony; and
Direct the Opposite party to pay to the Complainant an amount of Rs.2,00,000/- as litigation & miscellaneous expenses; and
Direct the Opposite party to pay a sum of Rs.31,000/- (Rupees Thirty One Thousand Only) towards the Legal Notice charges; and
Cost of the present complaint may also be awarded in favour of the complainant and against the opposite party; and
Pass such other and further order(s) as this Hon'ble Commission may deem fit and proper in the facts and circumstances of the case.
The brief facts as set out in the Complaint are that one Mrs. Madhabi Venkatraman applied on 29.08.2012 for allotment of Flat No. 7013, admeasuring 4545 sq. ft. for her residential purpose, in Nectarine Tower "PARX LAUREATE" at GH-01, 02 & 03, Sector- 108, Expressway, Noida to be developed by the Developer and paid the registration money of Rs. 7,00,000/-. On 16.10.2012, an Allotment Letter was issued by the Developer to the original allottee, Mrs. Madhabi Venkatraman for the aforesaid flat after deposit of Rs. 32,33,657/- out of the total sale consideration of Rs. 2,47,29,405/-. It is stated that as per the Allotment Letter the possession of the flat was to be handed over within a period of 36 months from the date of Allotment Letter i.e. latest by 15.10.2015. The original allottee made payment to the tune of Rs. 1,55,89,329/-, for the first seven instalments as demanded by the Developer. On 16.02.2015, after seeing the very slow pace of construction the original allottee, decided to sell the subject flat and the Complainant who was in search of a luxurious flat for his residential purpose was approached by her flat through a broker. The Complainant was assured that the possession of the said flat would be delivered on time and therefore the Complainant without physically verifying the status of the construction agreed to purchase the flat and paid an amount of 1,00,000/- as advance towards the total sale consideration of Rs. 1,55,89,329/- and it was agreed that the balance amount of sale consideration would be paid on or before 15.10.2015. It was also agreed that the Complainant would pay the outstanding instalments beyond Rs. 1,55,89,329/- to the Developer directly after the transfer of the flat on his name.
It is stated that the Demand Letter for instalments No. 8 and 9 were issued by the Developer and accordingly payment to the tune of Rs. 21,68,694/- was made by the original allottee; that the possession was not delivered in October, 2015 as promised in the Allotment Letter; that the Complainant decided to wait for the possession and not to make any payment towards the purchase; that Mrs. Madhabi Venkatraman insisted for an agreement to sell and demanded the payment of instalments, which she had made to the Developer, she further stated that she can't wait any further and she would forfeit the earnest money and cancel the deal; that the Complainant made enquiries from the officials of the Developer, who assured the Complainant that the possession would be delivered by June 2016 and therefore, the Complainant, on 17.02.2016, entered into an Agreement of sale with the original allottee paid an amount of Rs. 1,85,00,000/-. A letter dated 09.05.2016 was received from the Developer confirming the payment of Rs. 1,93,70,883/- towards the purchase of the subject flat. Thereafter, the Complainant visited the site to know the status of the construction but he was denied entry to the construction site by the officials of the Developer stating security reasons and he was informed that the work is in progress and the possession would be delivered shortly. It is averred that the Complainant telephonically made inquiries from the office of the Developer regarding possession but the officials of the Developer did not bother to reply.
The Complainant and some other allottees visited the office of the Developer in last week of January, 2017 and they were informed that the possession of the said flat could not be delivered till the end of year 2017, after which the Complainant requested for refund of the amount paid. On 08.03.2017, Complainant got issued a legal notice to the Developer asking for refund of the amount of Rs. 1,93,70,883/- with interest @ 24% p.a. from the various dates of deposit, but there was no response. The Complainant was shocked to receive the demand letter for the 11th instalment for Rs. 10,92,628/-. On refusal of the payment of instalment, the officials of the Developer threatened the Complainant of cancellation and forfeiture of the amount paid.
It is submitted that as per clause 13 (6) of the Alloment Letter dated 16.10.2012 the Developer is liable to pay Rs. 5/- per sq. ft. per month to the allottees for the delay in delivery of possession, which is a very meagre amount of interest which the Complainant would have got after investing the amount with the bank. Vexed with the attitude of the Developer, the Complainant approached this Commission seeking the aforenoted reliefs.
Resisting the Complaint, the Developer stated that between 28.03.2013 to January, 2016, for about 26 months, there was complete slowdown in the construction of the projects of entire NOIDA including that all the Developer due to the order passed by National Green Tribunal (NGT) in OA/158/2013 and also on account of the notification issued by the Ministry of Environment and Forest and Climate Change, undertaken by it before the NGT. The original allottee was aware of the orders of the NGT and the Developer had sent several reminders for payment of the instalments and finally issued a notice on 17.10.2014 for cancellation of the Provisional Allotment of Flat No. 7013. It is averred that in view of Clause 13(7) neither Mrs. Madhabi Venkatraman, the original allottee nor the Complainant who is endorsed by the original allottee is not entitled to any amounts for delay in construction. It is further averred that on 02.04.2016, the original allottee requested the Developer to transfer flat No. 7013 in favour of the Complainant herein. The Complainant also submitted an undertaking on 01.04.2016 duly signed/ executed before the competent authority, which makes it clear that both the original allottee and the Complainant. Order of the NGT and the fact that the delay in construction are beyond the control of the Developer and assessed the status of construction and therefore their right to claim compensation is construed to be waved as mentioned in Clause 13.
It is also pleaded that on commencement of 18th floor and 20th floor roof slab, 11th and 12th instalments were demanded from the Complainant and the same was not paid. Therefore the Developer has a right to cancel the allotment. It is only on account of the restrictive order dated 28.10.2013 passed by NGT on any construction within the radius of 10 kilometres from Okhla Bird Century, that the Developer could not complete the project as the said project comes within the radius of 10 kilometres. In view of clause 13(5) the Developer is entitled for extension of time for offer of possession at such premises on account of Force Majeure Conditions therefore they are not liable to pay any compensation as prayed in the present Complaint. All other averments made in the Complaint were denied.
The Complainant filed their Affidavit by way of Evidence and marked Ex. CW 1/1 (copy of the payment receipt dated 27.08.2012), Ex. CW 1/2 (copy of the payment receipt dated 18.09.2012), Ex. CW 1/3 (colly) (copy of the Provisional Allotment Letter), Ex. CW 1/4 (colly) (copy of the proof of payment till 7th instalment), Ex. CW 1/5 (copy of the payment receipt dated 16.02.2015), Ex. CW 1/6 (coly) (copy of the proof of payment of 8th and 9th instalment), Ex. CW 1/7 (copy of agreement to sell dated 17.02.2016), Ex. CW 1/8 (coly) (copy of the receipt of penal interest and 10th instalment ), Ex. CW 1/9 (copy of letter dated 09.05.2016 issued by the Developer), Ex. CW 1/10 (copy of demand notice dated 08.03.2017 seeking refund), Ex. CW 1/11 (copy of demand letter of 11th instalment), Ex. CW 1/12 (copy of order dated 03.04.2012of NGT), Ex. CW 1/13 (copy of order dated 25.07.2016), Ex. CW 1/14 (copy of the order dated 05.08.2016) and Ex. CW 1/15 (copy of the order dated 11.01.2017) on his behalf.
The Developer filed Affidavit by way of Evidence and marked exhibits Ex. OP-X (copy of the Resolution dated 25.04.2017), Ex. OP-1/1 (copy of the order dated 28.10.2013), Ex. OP-1/2 (colly) (copy of notification dated 19.08.2015) and Ex. OP-1/3 (colly) (copy of undertaking dated 01.04.2016 and application dated 02.04.2016 ) on its behalf.
Learned Counsel for the Complainant argued that OA/158/2013 was filed by one Mr. Amit Kumar praying for preventing the Developers against the illegal and unauthorized construction within 10 kilometres radius of the Okhla Bird Sanctuary NOIDA and filed an Affidavit on 17.09.2013 before NGT stating as follows:
"That there are 55 projects within the said radius & upon verification by the Department, it is submitted that six (at Sl. Nos. 10,12,13,14, 42 & 39 of the list) out of the said 55 projects are outside 10 kms radius. Thus, the list shrinks to 49 projects. That out of the 49 projects within 10 kms radius, in respect of 7 projects (at Sl. Nos. 3,29,36,44,45,46 & 52), no construction has commenced as the layout and building plans are yet to be sanctioned by the Authority. That of the 42 projects, a total of 15 nos. of projects (at Sl. Nos. 18,24,25,30,31,32,33,35,37,38,40,41,49,50 & 55) were already completed and the completion certificate was issued. That out of remaining 27 nos. of projects, EC has been received in respect of 25 nos. Two projects are of an area 6000 sq. mts. (Sl. no. 31) respectively and therefore, require no EC."
It was further contended that the Developer in the instant case has failed to produce any document to say that the project undertaken by them was among the 49 projects in respect of which the said order was issued. The construction work was never stopped in terms of the general order dated 28.10.2013. It was argued that the Developer had concealed from this Commission order dated 14.08.2013 by which only those Developers who are carrying on construction activities without environmental clearance were prevented from carrying on such activity. There was no stay on the construction and the Hon'ble NGT while disposing of the OA 158/2013, recorded as under:
"(i) In the first instance, we have passed an order not permitting any construction activity within 10 km radius from the protected area of the Okhla Bird Sanctuary. Thereafter, the said order came to be modified to the effect, that in so far as it relates to the projects of construction which are already completed, the construction shall be subject to final order passed by the Tribunal and the authority shall not give any completion certificate to such constructed buildings.
(ii) In respect of the buildings which are half way through, we permitted the construction to go on without prejudice and subject to final order which will be passed by the Tribunal.
(iii) In so far as it relates to the new projects, we made it clear that no permission shall be granted by any public authority till final orders are passed by the Hon'ble Tribunal and the interim orders stand as on date at that stage."
It was argued that this order cannot be termed as Force Majure or reasons beyond the control as the Developer cannot take benefits of its own wrong doings and had even raised demands for payment of instalments between the period ranging from 28.10.2013 to January, 2016. Indeed the work was stopped or slowdown on account of the order dated 28.10.2013, then it is not understood as to how the Developer has raised any such demands.
The Developer was to deliver the possession of the flat latest by 15.10.2015 and the order dated 05.07.2016 or any other order thereafter stating that the construction work was stopped cannot be of any relevance.
Learned Counsel for the Developer vehemently contended that the order passed by the NGT should be construed as Force Majeure and that the Complainant is a defaulter as the 11th and 12thinstalments were unpaid and that the Complainant is not the original allottee in the instant case and was very much aware of the status and construction and therefore cannot now seek compensation on account of delay in delivery of possession.
Learned Counsel for the Developer further contended that the project was registered with RERA; that it would be completed by May 2019; that they are ready and willing to offer possession to the Complainant on completion of the project; that the flat was endorsed in the Complainants name on 09.05.2016 and that the original allottee had booked it on 16.10.2012; that the promised date was in the year 2015 and therefore the Complainant had assessed the stage of construction and then purchased the said flat. Learned Counsel vehemently argued that processing and administrative charges have to be deducted in view of Clause 14 of the Allotment Letter.
It is an admitted fact that it was a second sale and vide letter dated 09.05.2016 addressed by the Developer to the Complainant it is clearly stated that 'with reference to Application dated 21.04.2016' the subject flat stood duly endorsed/ assigned in the Complainant's name upon such terms and conditions agreed upon by the original allottee. The Provisional Allotment Letter dated 16.10.2012 together with the relevant receipts amount to Rs. 1,93,70,883/- was taken into consideration in the said letter.
It is pertinent to note that the demand letter for the 11th instalment is dated 24.03.2017, whereas the promised date of delivery is 15.10.2015. In the said letter it is clearly stated that the construction stage 'on commencement of 18th floor roof slab' of the tower has been achieved and therefore the 11th instalment was demanded to be paid. This evidences that even as on 24.03.2017 the construction of the said tower was incomplete.
A perusal of the receipt No. 306 dated 01.03.2016 shows that the original allottee had paid an amount of Rs. 5,29,000/- towards penal interest charged by the Developer at the rate of 24% p.a.
Though the Complainant had got issued a legal notice dated 08.04.2017 for refund of the amount paid with 24% interest the Developer did not issue any reply to the legal notice but instead sent a demand letter subsequent to the issuance of the legal notice as it can be seen from the record that the demand letter is dated 24.03.2017. Therefore the contention of the learned counsel appearing for the Developer that the Complainant is a defaulter cannot be sustained.
We find it a fit case to place reliance on the judgement of the Hon'ble Supreme court in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, II (2019) CPJ 29 (SC), wherein the Hon'ble Apex Court has clearly laid down that a flat purchaser cannot be made to wait indefinitely for seeking possession. Even in the instant case, though the promised date of delivery was way back in the year 2015, even as on date, the tower is far from completion.
The Learned Counsel for the Complainant relied on the decision of this Commission dated 11.01.2019 in Manmeet Singh & Anr. Vs. Unitech Hi-Tech Developers Ltd. & Ors. (Consumer Complaint No. 1285 of 2017), wherein this Commission has allowed refund of the principal amount with interest @ 10% p.a.
For all the aforenoted reasons and the principal laid down by the Hon'ble Supreme Court in Kolkata West International City Pvt. Ltd. (Supra) we are of the considered view that the Complaint be allowed in part and we direct the Developer to refund the amount deposited with the developer in respect of subject flat No. 7013 with interest @ 10% p.a. from the respective dates of deposit till the date of realisation together with the cost of Rs. 25,000/-.
This amount is directed to be paid within four weeks from the date of receipt of a copy of this order, failing which, the amount shall attract interest @ 12% p.a. for the same period.