Flora Welfare Association vs Shree Vardhman Infrahome Pvt. Ltd

Heard Mr. Madhurendra Kumar, Advocate, for the complainant and Mr. Sukant Vikram, Advocate, for the opposite party.

Flora Welfare Association has filed above complaint for directing the opposite party to (i) handover possession of the apartments, complete in all respect and with promised amenities and facilities to the home buyers, after taking balance consideration (except for excess area), within stipulated period; (ii) pay delay compensation in the form of interests @12% per annum on the deposit of the home buyers, from due date of possession till the date of handing over possession; (iii) refund the amount realized in the head of car parking space with interests @18% per annum from the date of deposit till the date of refund and provide adequate car parking space in the project; (iv) refund the amount realized in the head of club membership fee with interests @18% per annum from the date of deposit till the date of refund; (v) refund the excess amount realized in the head of EEC & FFC with interests @18% per annum from the date of deposit till the date of refund and provide accounts of actual expenses in these heads; (vi) furnish audited statements evidencing the actual payment of taxes, including VAT; (vii) pay Rs.50000/-, as the costs of litigation to each home buyer; and (viii) any other relief which is deemed fit and proper in the facts and circumstances of the case. The complaint was filed on behalf of 27 sets of home buyers of the project “Shree Vardhman Flora”. During pendency of the complaint, various home buyers have settled their dispute with the opposite party and their names were deleted. Now, Naresh Kumar & Neetu Yadav (Sl. No.6), Abhishek Kumar Gupta & Ketki Gupta (Sl. No.8), Ankur Garg & Neha Garg & Ramshri Agarwal (Sl. No.10), Savita Chaudhari (Sl. No.14), Naveen Jain (Sl. No.21), Ravi Garg & Gaurav Garg (Sl. No. 24), Jamuna Dutta (POA Holder of Dr. Ashit Kumar Dutta) (Sl. No.26) and Sandeep Kumar Goyal (POA Holder of Rajiv Garg) (Sl. No.27) survive.

The complainant stated that it was a voluntary association of the home buyers of the project “Shree Vardhman Flora”, registered under Haryana Registration and Regulation of Societies Act, 2012, having Registration No.2650 of 2016 and is filing the complaint on behalf of its 27 sets of home buyers/members. 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 and selling its unit to the prospective buyers. The opposite party launched a group housing project, in the name of “Shree Vardhman Flora” at village Hayatpur, Sector-90, Gurgaon, in the year 2011 and made wide publicity of its facilities and amenities. Believing on the representations of the opposite party, the members of the association booked the flats on separate dates in the year, 2011. The opposite party allotted flats and executed agreements in favours of the members of the association, on separate dates in the year 2012. Annexure-1 of the agreement provides payment plans. The members of the association opted for “construction link payment plan”. Clause-14(a) of the agreement provides that the construction of the flat is likely to be completed within a period of 36 months of commencement of construction with a grace period of six months. As per demand, the members of the association deposited the instalments on time and 90% of basic consideration (total 14 instalments) were deposited till 2015. Remaining 5% of consideration was payable on commencement of flooring and 5% was payable on offer of possession. Due date of possession expired in the year, 2015 but the opposite party did not offer possession. On inquiry, the opposite party informed that possession was likely to be handed over in June, 2016. Clause-14(b) of the agreement provides for delay compensation. In December, 2015, the opposite party raised demands under the heads of “Fire Fighting Charge” and “External Electrification Charge” @Rs.200/- per sq.ft. of super area from the home buyers. The members of the association asked for the actual bills of the aforesaid works and requested to adjust delay compensation for payment of those bills. In the meantime, demands in the head of VAT and increased super area were also raised. The association had a meeting with the opposite party to resolve the issue but of no result. The association gave a legal notice dated 23.04.2017, requesting to give a deadline for possession, payment of delay compensation, not to charge any amount for increased super area, give accounts of FFC and EEC and proof relating to payment of  service tax. The opposite party did not respond to the notice. Then this complaint was filed on 04.12.2017.

The opposite party filed its written reply on 18.02.2018, in which, material facts relating to the booking of the flats, allotments, execution agreements and payments made by the members of the complainant, have not been denied. The opposite party stated that the complainant has already filed CC/1893/2017 and cannot be permitted to file multiple complaints. The complainant was neither a voluntary nor a recognized association and the complaint under Section 12(1)(b) of Consumer Protection Act, 1986, filed by it, was not maintainable. The buyers on whose behalf the complaint has been filed were investors and not consumers. Value of one flat is much less than the pecuniary jurisdiction of this Commission. The complaint is barred by limitation. The members of complainant signed the agreement after reading and understanding the terms and conditions and there is no unfair trade practice. Relief of possession is of the nature of specific performance of the contract, which cannot be granted by this Commission. Complicated issues of facts are involved in the complaint, which requires adjudication by civil court. The period of 36 months as mentioned in Clause-14(a) of the agreement was tentative and subject to force majeure. The construction of the project was delayed due to force majeure reasons and the opposite party was entitled for extension of that period. Initially the construction was delayed as Punjab and Haryana High Court, vide order dated 21.08.2012 passed in CWP No.20032 of 2008, prohibited all the builders in district Gurgaon, from using ground water in construction work. The opposite party had to arrange water from alternate sources from Haryana Urban Development Authority and the water had been carried in tankers due to which, the work had become slow. The opposite party engaged M/s. Mahalakshmi Infra-Engineers Private Limited and DSA Buildtech Private Limited as the contractors for civil construction works. Despite timely payments, the contractors delayed the work. Large numbers of the home buyers including members of the association committed defaults/delay in payment of instalments, which created paucity of fund. Some of the members of the association are not original allottee but transferees from original allottee and the time line as mentioned in the agreement with original allottee, cannot be followed for all of them. The opposite party is proceeding with construction with full spring and reached to the stage of flooring work and the project is likely to be completed in near future. Super area as mentioned in clause-2 of the agreement was tentative and the buyers have agreed to pay if super area is increased. The charges for car parking space, club membership, EEC & FFC and taxes are as per the agreement. The opposite party has not committed any unfair trade practice.

The complainant filed Rejoinder Reply, Affidavit of Evidence, Affidavit of Admission/Denial of the documents of Banwari Lal Gupta and documentary evidence. The opposite party filed Affidavit of Evidence of Parveen Sharma and documentary evidence. This Commission, vide order dated 19.07.2019, directed the complainant to file Supplementary Affidavits of all the buyers, for whose benefit, the complaint was filed, with the respective documents, which were filed on 16.09.2019. Both the parties have filed written submission.

During pendency of the complaint, the opposite party, vide letter dated 05.01.2020, offered possession to the members of the association with final demand letter. The complainant filed IA/8474/2021, for quashing the letter of offer of possession and demand on the ground on the ground that construction was not complete and the flat were not in habitable condition as well as demand was illegal as the opposite party had to pay much more to the buyers. The opposite party filed its reply to IA/8474/2021, attaching “occupation certificate” dated 02.02.2022. A perusal of “occupation certificate” shows that the opposite party applied for issue of “occupation certificate” on 20.07.2021. As such letters dated 05.01.2020, offering possession and raising final demand was illegal.

We have considered the arguments of the counsel for parties and examined the record. A opposite party raised a preliminary issue that recent affidavits have not been filed by Banwari Lal Gupta, the person who had been authorised in the meeting dated 27.05.2017 by Governing Body of the society for instituting the complaint as such the opposite party has credible doubt that the society exists as on toady. The argument raised in this respect is not liable to be accepted. The complainant association is registered under Haryana Registration and Regulation of Societies Act, 2012. There is nothing on record that association has been dissolved subsequently as per provision of the aforesaid Act. A recognised association has been permitted to espouse the grievance of a consumer under Section 12(1)(b) of the Consumer Protection Act, 1986. All the home buyers, whose grievance have been raised in this complaint, have filed their affidavits in the complaint and also filed their affidavits of evidence. At this stage, the complaint cannot be dismissed only on the ground that along with interim application, affidavit of the member has been filed.

Clause-14(a) of the agreement provides that the construction of the flat is likely to be completed within a period of 36 months of “commencement of construction” with a grace period of six months. Annexure-C-2 filed by the opposite party shows that instalment of “commencement of excavation work” was due on 03.10.2012. The opposite party has filed a list of home buyers, who are transferee, in which date of transfer of Neveen Jain (Sl. No.21) was shown as 16.11.2013 and Rajiv Garg (Sl. No.27) is shown as 20.03.2013. The other transfer (except the persons who have settled) are prior to 03.10.2012. Due date of possession was October, 2015. For Neveen Jain (Sl. No.21) it can be as 15.11.2016 and Rajiv Garg (Sl. No.27) as 19.03.2016. As such there was delay in offer of possession.

The opposite party took plea that the construction had been delayed due to force majeure reasons and the opposite party was entitled for extension of the period for which, the construction was delayed for force majeure reason. The force majeure periods as mentioned in written reply, are not liable to be accepted, inasmuch as payment plan was “construction link payment plan” and the opposite party had realized instalments at various level of the construction (excepted last two instalments) during that period. However, demonetization of currency notes of 500 and 1000 in November, 2016 created paucity of cash even in the banks and on that account the opposite party is entitled for six months period. Similarly pandemic Covid-19 and consequently lockdown in the country also affected the construction work for one year six month period. Total 2 years period is liable to be extended. The members of complainant are entitled for delay compensation in the form of interest @6% per annum on their deposits from due date of possession till the offer of possession as held by Supreme Court in Wg. Cdr. Arifur Rahman Khan Vs. DLF Southern Homes Pvt. Ltd., (2020) 16 SCC 512 and DLF Home Developers Limited Vs. Capital Green Flat Buyer’s Association, (2021) 5 SCC 537.

The complainant has questioned increase of saleable area, which was increased to 1950 sq.ft. from 1875 sq.ft. No evidence has been adduced to prove demand for additional area is not justified. Supreme Court in DLF Home Developers Limited Vs. Capital Green Flat Buyers Association, (2021) 5 SCC 537, upheld the demand for increase of super area up to 10%. Demand for car parking space and club membership fee and the taxes are according to the agreement and there is no illegality in it. However, the opposite party demanded @Rs.200/- per sq.ft. for “External Electrification Charges” and “Fire Fighting Equipment Charges”. The opposite party has not given what were actual expenses in these head. The opposite party is directed to realize EEC and FFC on pro-rata basis of the actual expenses.

ORDER

In view of the aforesaid discussions, the complaint is partly allowed. The opposite party is directed issue fresh offer of possession and statement of the account to the members of the complainant (except those members, who have settled their dispute) within six weeks, duly crediting delay compensation in the form of interest @6% per annum on their deposits from January, 2017 till the offer of possession and charging EEC and FFC on pro-rata basis of the actual expenses. If any amount is payable to the home buyers, it will be paid along with statement of account. The opposite party shall handover possession to the members of the complainant, complete in all respect as per specification and execute conveyance deeds in their favour. If any amenities and facilities are incomplete, it shall be completed within six months from the date of this judgment.