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Judgment
Dr Inder Jit Singh, Presiding Member
The present Consumer Complaint (CC) has been filed under Section 21 (a)(i) of the Consumer Protection Act, 1986 (for short “the Act”) by the Complainants against Opposite Parties (OPs) as detailed above, inter alia praying for:-
a. To direct OPs to make the repayment of entire amount of Rs.40,50,000/- taken as payment of promised flat.
b. To pay interest 24% p.a. from the date of actual payment upon the date of actual repayment which comes to Rs.75,73,000/- i.e. upto 20.02.2020.
c. To compensate the rental income of the flat in question as it is being earned by current incumbent i.e. from May 2016 @Rs.18,000/- pm upto date of actual refund of original amount which comes to Rs.8,10,000/- upto February 2020.
d. To pay the cost of the notice of demand i.e. Rs.22,000/- .
e. To pay total of Rs.1,24,55,000/- alongwith future pendent-lite above mentioned interests upto the date of actual payment jointly & severally.
Notice was issued to the OPs on 06.03.2020 with directions to file written statements within a period of 30 days from the date of receipt of notice.
It is stated/averred in the Complaint that: -
i. On 29.12.2011, the complainants booked one 3 BHK Flat, in the project of OP namely “Casa Grand”, situated at Plot No. 7 A, Sector: CHI-Greater Noida (U.P.) by paying a booking amount of Rs.5,00,000/- on 30.12.2011. The OP allotted a residential flat No. A-402, 4th Floor, measuring 1495 sq.ft. to the complainants for a total consideration of Rs.41,11,250/-. The OP promised to hand over the flat within thirty months with grace period of three months, i.e. 25.07.2014.
ii. The complainants paid a sum of Rs.40,50,000/- to the OP till 29.01.2013 but the OP failed to complete the project and did not hand over the flat in question to the complainants within the stipulated time. The complainants visited the site but no responsible person was available and no work was found to be carried out to finish and to complete the construction and there were standing basic skeleton towers without any finishing.
iii. During December 2018, Complainant No.1 happened to visit the site to take update and was shocked to see that the flat was occupied by students. On enquiry, it was found that the said flat which was allotted to complainants against the payment of Rs.40,50,000/- till 29.05.2018, was given to one Mrs. Gunjan Garg, D/o Shri Kanhiya Lal Garg, in pursuance to Agreement To Sell, dated 14.05.2018, executed in the name of Mrs. Gunjan Garg by the Company, after receiving entire consideration amount in full and final settlement of amount/accounts and possession as handed over through its authorized signatory Sh.Raja Bhattacharya.
iv. The OP Company has collected almost entire sale consideration amount i.e. Rs.40,50,000/- from complainants and later, without any information to complainants has sold said flat twice and thus has cheated complainants, as still keeping and withholding the entire amount. The complainants sent a Legal Notice to the OPs on 28.11.2019 to return complainants’ money with 24% interest p.a. from the date of actual payment upto date of actual repayment, as current interest rate on unsecured loan, as damages of withholding illegally the amount and using it for their own purpose apart from disentitling them from having benefit of rent as current owner is having.
v. The OPs failed and remained grossly deficient in delivering the possession of the promised flats to large number of consumers even after a long wait and in case of present complainant despite receiving around full payments. Hence, the complainants have filed Complaint before this Commission.
The details of the flats allotted to the Complainants:-
Sr No
Particulars
1
Project Name/Location etc.
“Casa Grand”, Plot No. 7 A, Sector: CHI-Greater Noida (U.P.)
2
Apartment no
A-402, 4th Floor
3
Size
1495 sq.ft.
4
Date of application
29.12.2011
5
Date of allotment
25.01.2012
6
Committed date of possession as per allotment letter with grace period
23.10.2014
7
Total Consideration
Rs.47,22,525/-
8
Amount paid
Rs.40,50,000/-
9
D/o CC/Do Filing CC in NCDRC
03.03.2020
10
D/o Filing Reply/Written Statement by OPs
30.07.2020
11
D/o Filing written synopsis by the complainants
24.04.2023
12
D/o filing Written Synopsis by the OPs
Not filed
Heard counsels of both sides.
In the written statement/reply filed by OP, it is stated that :-
(i) The facts of the case stated by the complainants in the complaint are factually incorrect and misleading at the same time the complainants have conveniently suppressed the relevant facts and circumstances. There is no deficiency of service on the part of the OPs. The complainants have set out completely incorrect case, based upon false and concocted facts to bring the case within the jurisdiction of this Commission to bring the case within the period of Limitation. The complainants had invested an amount of Rs.40,50,000/- in the project of the OPs with an expectation that they would earn return on their investment, however, the property prices had gone down and the complainants did not want to take possession of their flat and therefore despite repeated requests and reminders they had not taken possession of their flat. The OPs left with no other option and were constrained to cancel the allotment of the flat with due notice to the complainants, after cancellation of the flat the respondents waited for more than 6 months and thereafter had sold the flat to another buyer.
(ii) it is contended by the OPs that the complainants intentionally did not take possession of the flat and did not respond to any of the letters issued by the OPs. The complainants were completely aware that in the event if they cancel their booking they would have been liable to pay 20% of the entire sale consideration amount as cancellation charges in terms of the allotment letter, in these circumstances in order to avoid their liability of payment of cancellation charges and to generate income on their investments the complainants have dressed up the instant belated complaint and have filed the same falsely representing as if there has been deficiency in service on the part of the OPs.
(iii) the complainants have failed to mention that by letter dated 28.12.2016 they were offered possession of the flat and requested to take possession of the flat after making payment of the balance due amount, that by a series of subsequent reminders and notices complainants were called upon to take possession of the flat and pay the balance amount, however, they did not take possession, thereafter cancellation notice dated 16.10.2017 was issued and the complainants were called upon to pay the outstanding amount of Rs.9,23,994/- on account of balance sales consideration and other charges and take possession of the flat on or before 22.10.2017. In the said notice it was made clear that in the event that the complainants do not take possession, the OPs would be constrained to cancel the allotment, as the complainants despite a series of letters, reminders, notices failed to respond, make payment of the balance amount and take possession of the flat, therefore the OPs were left with no option but to cancel the allotment in accordance with the agreement between the parties.
(iv) The complainants were offered possession on 28.12.2016 and the OPs sold the flat on 29.05.2018, in these circumstances the complainants are entitled to refund of only an amount of Rs.29,90,729/- out of the total amount of Rs.40,50,000/- because the complainants are liable to pay the withholding charges and maintenance charges from 07.01.2017 to 29.05.2018 and are also liable to pay the cancellation charges in accordance with the terms and conditions of the booking.
(v) On 03.06.2019, the complainants made a false and concocted complaint to the Police Station, Sarita Vihar, on the basis whereof it appears that a First information report being FIR No. 0430/2019 U/S 420/34 has been registered. During investigation of the aforesaid FIR, OPs joined investigation and appeared before the concerned Investigating Officer and explained the entire facts and circumstances of the case and during investigation the OPs explained to the complainants that as the default was on their part therefore the amount being claimed by them was not in consonance with law, however, in order to put an end to controversy the complainants were given two alternative offers, (i) refund of Rs.29,90,729/- or in the alternative the complainants were given another option to take a similarly situated flat in the same society subject to payment of the balance outstanding amount. The complainants refused both the above offers and are demanding an amount more than rupees one crore.
In the Rejoinder, the complainants denied having received the letter dated 28.12.2016 regarding offer of possession sent by the OPs.
In this case, as per allotment letter, the committed date of completion of the project was 30 months (with a grace period of 3 months) from the date of commencement of the construction. As per schedule of payment attached with the allotment letter, total price of the flat is Rs.47,22,525/-, 15% was payable at the time of booking and next 10% on commencement of construction. The complainant paid Rs.5,00,000/- at the time of booking on 30.12.2011 and paid another Rs.12 lakh on 23.01.2012. Hence, it is to be presumed that construction had started by this date. Hence, the construction ought to have been completed by 23.10.2014. As per allotment letter, the completion of the unit was to be done as per the completion date subject to receiving the entire costs and other payments. In this case, complainant has already paid Rs.40.50 lakh, which is more than 85% of total price of flat i.e. Rs.47.22 lakh. Allotment letter states that the possession of the unit will be given after execution of the sale deed/sub lease deed. It is admitted by the OP that no sale deed/subject lease deed has been executed so far. OP claims that the possession was offered on 28.12.2016. However, it is admitted that this offer of possession was without valid OC. It is also admitted that this possession was without execution of the sale deed/sub lease deed. Hence, there is default on the part of the OP to deliver a valid possession in accordance with the terms and conditions of the lease deed. It was held by Hon’ble Supreme Court in Wg. Cdr. Arifur Rahman Khan and Aleya Sultana and Ors. vs DLF Southern Homes Pvt. Ltd. & Ors. (2020) 16 SCC 512 that, “failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within the contractually stipulated period, amount to deficiency”. It was held by Hon’ble Supreme Court in Banglore Development authority Vs Syndicate Bank (2007) 6 SCC 442 and Fortune Infrastructure Vs Trevor D' Lima (2018) 5 SCC 422 that "Home buyers cannot be made to wait for position of the flat for indefinite period". The OP has not been able to bring out clearly, as to which of the specific demands, raised by them, which were linked to the specific stage of construction, have not been paid by the complainant and whether that stage of construction has actually been achieved at the time of issuing such demand. Hence, in the present case, action of OP for cancellation of the unit in question vide letter dated 16.10.2017 and subsequent sale of the unit to 3rd party on 29.05.2018 was not correct. In the circumstances, considering that flat in question has already been sold by OP to 3rd party, complainants are entitled to refund of their entire principal amount, without any deductions, along with reasonable amount of compensation.
The contention of OPs that this Commission lacks pecuniary jurisdiction is not valid. Under Section 21 of the Act, Commission has the jurisdiction where value of goods and services and compensation, if any, claimed exceeds Rs.one crore. The objection that the Complaint is barred by limitation is also not accepted. The OP(s) have failed to deliver the possession of the unit to the complainant till date and therefore, the cause of action is continuing. The contention that complainant(s) is/are not a consumer as he/they has purchased the unit for investment purpose is also rejected as no such evidence has been adduced by the OP(s) in this regard. It has been observed by this Commission in various cases (Kavita Ahuja Vs Shipra Estates Ltd, CC 137 of 2010, decided on 12.02.2015, Santosh Johri Vs M/s Unitech Ltd, CC 429 of 2014 and connected Cases, decided on 08.06.2015, Aloke Anand Vs M/s Ireo Grace Pvt Ltd & Others, CC no 1277 of 2017 decided on 01.11.2021) that purchase of a house can only be for a commercial purpose if the purchaser is engaged in the business of purchasing and selling houses or plots on a regular basis, solely with a view to make profit by way of sale of such houses, if the house is purchased purely as an investment and the purchaser is not undertaking the trading of houses on regular basis, then it would be difficult to say that he had purchased it for commercial purpose. ……… In any case, it is not appropriate to classify such acquisition as a commercial activity merely on the basis of number of houses purchased by a person unless it is shown that he was engaged in the business of selling and purchasing the houses on a regular basis. The reasons for delay in construction adduced by the OP are not found convincing.
For the reasons stated hereinabove, and after giving a thoughtful consideration to the entire facts and circumstances of the case, various pleas raised by the learned Counsel for the Parties, the Consumer Complaint is allowed/disposed off with the following directions/reliefs: -
(i) The OP(s) shall refund the entire principal amount of Rs.40,50,000/- (Rupees forty lakh fifty thousand only) to the complainant, alongwith compensation in the form of simple interest @ 9% per annum from the date of each payment till the date of refund. The principal amount refundable mentioned in this para is subject to verification of actual amount paid by the complainant based on receipts etc.
(ii) The OP(s) shall pay a sum of Rs.25,000/- as cost of litigation to the complainants.
(iii) The liability of the OP(s) shall be joint as well as several.
(iv) The payment in terms of this order shall be paid within three months from today.
(v) In case the complainant(s) has/have taken loan from Bank(s)/other financial institution(s) and the same/any portion of the same is still outstanding, the refund amount will be first utilized for repaying the outstanding amount of such loans and balance will be retained by the complainant. The complainant would submit the requisite documents from the concerned bank(s)/financial institution(s) to the OP(s) four weeks from receipt of this order to enable them to issue refund cheques/drafts accordingly.
The pending IAs, in any of the Consumer Complaints, if any, also stand disposed off.