Meera Sachdeva vs M/s Jasmine Buildmart Pvt. Ltd

Heard Mr. Arun Khosla, Advocate, for the complainant.

Ms. Meera Sachdeva (the complainant) has filed above complaint, for directing the opposite party to (i) complete the construction of the project “Provence Estate” as per specification, obtain “completion certificate”, handover possession and execute conveyance deed in her favour within six months, or alternatively, hand over the task of the completing project to a renowned Architect/Civil Contractor and the opposite party be directed to handover, relevant drawings/documents and necessary fund to him or alternatively, direct the opposite party to refund entire amount deposited by her with interest @24% per annum from the date of respective deposit till the date of refund, (ii) pay interest @24% compounded quarterly on her deposits from 01.11.2014, (iii) reimburse the rent paid by her @ Rs.30/- per sq.ft. per month on the super area from 01.11.2014, (iv) Rs.5/- lakhs, as legal expenses incurred by her prior to institution of the complaint, (v) pay the cost of the litigation; and (vi) any other relief which is deemed fit and proper in the facts and circumstances of the case.

The complainant stated that M/s. Jasmine Buildmart 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 projects and selling its unit to the prospective buyers. It was a Krrish Group of Companies. The opposite party launched a project of group housing in the name of “Provence Estate” at Gwal Pahari, Faridabad-Gurgaon Road, Gurgaon, in the year 2011 and made wide publicity of the facilities and amenities of the project. Believing upon the representations and tall promises of the opposite party, the complainant booked a 4BHK flat on 27.07.2011 and deposited booking amount. The opposite party allotted Unit No.D-1601, super area 5800 sq.ft. @Rs.6250/- per sq.ft., total sale consideration of Rs.39460000/- to the complainant and executed Apartment Buyer’s Agreement (ABA) in her favour on 15.11.2011. Payment Plan was “construction linked payment plan”. As per demand, the complainant deposited Rs.25/- lacs on 13.07.2011, Rs.11.25 lacs on 27.07.2011, Rs.3625000.50 on 16.09.2011, Rs.186687.50 on 16.09.2011, Rs.3625001.25 on 25.09.2011, Rs.93343.75 on 25.09.2011, Rs.2788756/- on 17.01.2012, Rs.2802760/- on 29.05.2012, Rs.3382758/- on 26.09.2012, Rs.3817762/- on 05.02.2013, Rs.4085466/- on 23.05.2013, Rs.500000/- 23.09.2013, Rs.500000/- 23.09.2013, Rs2381361/- on 23.09.2013, Rs.2773563 on 13.10.2015 and Rs.312034/- 05.01.2017 (total Rs.34499493/-) and TDS of Rs.59376/-. Clause-3.1 of the ABA provides 36 months period from the date of commencement of the construction or execution of the agreement whichever is later, with grace period of 180 days, for delivery of possession. Due date of possession including grace period as per ABA expired on 15.05.2015 but the construction was neither completed nor possession was offered. Aggrieved with unreasonable delay in possession, about 50 apartment buyers of “Provence Estate” formed an association, named as “Krrish Provence Flat Buyers Association” and got it registered under Haryana Registration and Regulation of Societies Act, 2012, in order to watch their interest. The office bearers of the Association held a meeting with the officers of the opposite party on 10.03.2015. The opposite party informed that as various allottees had committed default in payment of instalments as such the construction was delayed and they promised that now the construction would be undertaken with full swing. The opposite party however did not start construction as promised. The Association wrote letters dated 08.04.2015 and 18.11.2015, requesting to complete the construction as early as possible. The opposite party wrote a letter dated 02.02.2016, again assuring to complete the construction expeditiously. Clause-3.3 of the ABA provides for delayed compensation in the form of interest @10% per annum on the deposits of the flat buyers. The Association therefore, vide letter dated 25.02.2016, demanded delayed compensation, in terms of the ABA. But the opposite party did not respond. The Association made a complainant dated 24.06.2016 to Haryana Government but nothing was done. The opposite party has abandoned the project from quite long time and was not doing any construction on the spot. The complainant is bearing burden of paying rent, due delay in possession. The opposite party is committing deficiency in service. Then, this complaint was filed on 23.02.2018.

The opposite party filed its written reply on 15.10.2018 and contested the complaint. The material facts relating to the project, allotment of the apartment to the complainant and payment made by her, have not been disputed. The opposite party stated that the complaint in the present form is not maintainable. It is an abuse of process of law. The complainant was an investor for earning profit and not a consumer. The ABA contained an arbitration as such, the complainant be relegated to go for arbitration. As per clause-12 of the ABA, timely payment was a condition precedent for timely possession. The complainant was a habitual defaulter in payment of the instalments, despite service of demand letters/reminders. Total consideration of the Unit No.D-1601, allotted to the complainant was Rs.39460000/-, while she allegedly deposited Rs.37882251/- and still Rs.1577749/- is payable. Exaggerated prayer has been made in the complainant although as per clause-3.3, the opposite party is not liable to pay any compensation. The complainant did not file any documents to prove various allegations made in the complaint. This omission has no jurisdiction to direct specific performance of the contract. Apart from other factor, 80% flat buyers committed default in payment of the instalments as such the construction was delayed. It has been denied that apart from the amenities mentioned in the brochure, any other promise or assurance was made. It has been denied that that Mr. Amit Katyal made any commitment. It has been denied that any buyer was induced to buy the flat. The period as mentioned in clause-3.1 of the ABA was not absolute but subject to timely payment of the instalments and other force majeure reasons. Due to default in payment by several buyers, the project has been delayed, which resulted in inflation of the cost of labour and materials. As per ABA, the opposite party agreed to pay delayed compensation at the time of offer of possession. Meeting dated 10.03.2015 with CEO of the Krrish Groups, namely Mr. R.P. Gupta has been denied. The complaint is liable to be dismissed.

The complainant filed Rejoinder Reply on 18.01.2019, in which, the facts stated in the complaint were reiterated. The complainant filed Affidavit of Evidence and Affidavit of Admission/Denial of documentary evidence of Amit Mittal. The opposite party Affidavit of Evidence and Affidavit of Admission/Denial of documentary evidence of Sanket Bansal. Both the parties filed written synopsis. The opposite party filed supplementary synopsis.

The complainant was defaulter inasmuch as out of total sale consideration of Rs.39460000/- of Unit D 1601, the complainant has deposited Rs.37882251/- including service tax and still Rs.1577749/- is due.  The complainant is also a defaulter.  In the complaint various false allegations has been made.  The construction was delayed for force majeure reasons as well as about 80 persons and other buyers committed default in payment of the instalment. Due to paucity of fund, the construction could not be proceeded.  It has been denied that the amount calculated from the flat buyers has not been incurred by the complainant.

Complainant filed affidavit of evidence and affidavit of admission/denial of documents of Meera Sachdeva.  The opposite party filed the affidavit of evidence and affidavit of admission/ denial of documentary evidence of Satish Seth.

So far as preliminary objection raised by the opposite party is that the complainant is not a consumer is concerned nothing has been filed by the opposite party to prove that the complainant is engaged in the business of purchasing and selling of immovable property. On the other hand, the complainant has stated that she was residing rented accommodation and was in need of her personal residence, therefore, preliminary objection raised in this respect has no force. Other preliminary objection raised is that the agreement contained Arbitration Clause, therefore, the complaint is liable to be dismissed.  Supreme Court in Emaar MGF Land Limited Vs. Aftab Singh, I (2019) CPJ 5 (SC) held that arbitration clause does not bar remedy under the Consumer Protection Act, 1986.

We have considered the arguments of the counsel for the complainants and examined the record. As per Clause 3.1 of Apartment Buyer Agreement, the possession has to be delivered within 36 months from the date of commencement of construction or execution of the agreement, whichever is later subject to force majeure.  The payment plan was “Construction Linked Payment Plan”.  As the complainant has been paying to the opposite party since the date of booking, none of the parties has disclosed the commencement of the construction.  As the opposite party was realising the amount continuously from 13.07.2011, as such the date of agreement shall be treated as later date and 36 months completed on 15.11.2014 and six months grace period completed on 15.05.2015.  Till today neither the construction has been completed nor the occupancy certificate has been obtained.  Supreme Court in Bangalore Development Authority Vs. Syndicate Bank, (2007) 6 SCC 442, Fortune Infrastructure Vs. Trevor D’Lima, (2018) 5 SCC 442, Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, 2019 SCC OnLine SC 438 and Pioneer Urban Land & Infrastructure Ltd. Vs. Govind Raghavan, (2019) 5 SCC 725, held that a flat buyer cannot be made to wait for indefinite period for the construction.

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 producing a certified copy of this judgment before the opposite party.