Neena Kalra vs M/s Vatika Limited & Anr

Heard Mr. Mohit Aggarwal, Advocate, for the complainant and Mr. Himanshu Chugh, Advocate, for the opposite party.

Neena Kalra has filed above complaint, for directing the opposite party to (i) refund Rs.5361701/- with interest @15% per annum from the date of respective deposit till the date of refund; (ii) pay Rs.50/- lacs, as compensation for mental agony and harassment; (iii) pay Rs.3/- lacs, as litigation costs; and (iv) any other relief which is deemed fit and proper in the facts and circumstances of the case.

The complainant stated that M/s. Vatika Limited (opposite party) was a company, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing project. The opposite party launched a group housing project, in the name of “Vatika India Next” at village Shikohpur, Sector-82-C, Gurgaon, in the year, 2012 and made wide publicity of its amenities and facilities. Believing upon the representations of the opposite party, the complainant booked a floor and deposited booking amount of Rs.716855/- on 31.01.2013. The opposite party, vide letter dated 21.02.2013, allotted Plot No.14, area 400 sq. yards and confirmed that possession would be delivered within 24 months from the date of booking. The opposite party executed Floor Buyer’s Agreement on 06.05.2013, in respect of Plot No.14, area 400 sq. yards, basic sale price of Rs.11999988/- in favour of the complainant. In Clause-15 of the agreement, due date of possession was unilaterally changed as “completion of construction” within 3 years from the date of execution of the agreement. Booking Application and Annexure-II to Floor Buyer’s Agreement contained payment plan as “time linked payment plan”, under which 40% consideration was payable within 12 months of the booking and 60% consideration was payable on offer of possession. As per demand, the complainant deposited Rs.476124/- on 29.04.2013, Rs.924037.29/- on 01.10.2013 and Rs.2658763/- on 30.01.2014. On query made by the complainant, the opposite party, vide email dated 01.05.2014, informed that possession would likely to be offered till June, 2014. The opposite party, vide addendum dated 07.09.2015, allotted First Floor-14 H-12, changing the earlier unit. The complainant, vide email dated 29.03.2016, requested for refund of her money due to unreasonable delay in possession. The opposite party, vide email dated 30.03.2016, declined to refund the money and issued a letter of “Intimation of Possession” dated 06.04.2016 and demanded balance amount of Rs.7666734.76, payable till 30.04.2016. Indemnity-cum-undertaking and statement of account were also supplied. The complainant, vide letter dated 18.04.2016, again requested for refund of her money. The opposite party issued notice dated 08.06.2016 for termination of allotment. The complainant along with her son Ashish Kalra visited the site and found that the construction was nowhere near completion. The construction work was going on, building materials and heaps of malwa etc. were lying at various places. On inquiry, the complainant came to know that “occupation certificate” has not been issued. The complainant gave legal notice dated 09.07.2016, for refund of her money along with interest. The complainant wrote various emails to the opposite party for supplying a copy of “occupation certificate” but no reply was given. Then this complaint was filed on 23.02.2017, alleging deficiency in service.

The opposite party has filed its written reply on 05.08.2019, in which, booking of the floor, allotment of the floor, execution of Floor Buyer’s Agreement and the deposits made by the complainant, have not been disputed. The opposite party stated that clause-15 of the agreement provides 3 years period from the date of execution of the agreement, for completion of construction, subject to force majeure and fulfilling the obligations by the buyer. The opposite party offered possession vide letter dated 06.04.2016 although due date for completion of construction was up to 05.05.2016. The letters dated 29.03.2016 and 18.04.2016 written by the complainant, for refund, were pre-mature. As per letter dated 06.04.2016, balance amount was payable up to 30.04.2016 but the complainant failed to deposit balance amount as such the opposite party issued reminder dated 03.05.2016 but again the complainant failed to deposit balance amount. The opposite party then issued notice for termination of the allotment on 08.06.2016, giving 7 days’ time to deposit balance amount. The opposite party again vide letter dated 07.06.2018, gave an opportunity to the complainant to deposit balance amount and complete documentation for possession. But the complainant did not deposit the balance amount. The opposite party then issued notice for termination of the allotment on 24.11.2018, giving 7 days’ time to deposit balance amount. Thereafter, the opposite party, vide letter dated 19.02.2019, cancelled the allotment of the complainant, forfeited the amount deposited by her and balance dues of Rs.1373959.42 was recoverable. It has been denied that the unit earlier allotted to the complainant was changed. In re-numbering, its number was changed, unit is the same as informed to the complainant, vide letter dated 28.08.2015. The complainant, herself wrote an email dated 01.05.2014, for extension of time for deposit of balance amount and not interested in taking possession. Terms of the agreement dated 06.05.2013, cannot be challenged after such a long time. Preliminary objection that Haryana Real Estate Regulatory Authority has been notified by notification dated 01.05.2017. Real Estate (Regulation & Development) Act, 2016 is a special legislation on the subject, as such, the remedy available under this Act should be availed by the home buyers and the complaint is not maintainable, is also raised. The complaint has no merit and liable to be dismissed.

The complainant filed Affidavit of Evidence of Neena Kalra.  The opposite parties filed Affidavit of Evidence of Vipin Kumar Marya.  Both the parties have filed their written synopsis.

We have considered the arguments of the counsel for the parties and examined the record. The allotment letter issued by the opposite parties dated 21.02.2013 provides that possession of the unit will be given within 24 months commencing from the date of booking. This clause has been unilaterally changed in Flat Buyer’s Agreement dated 06.05.2013 and Clause 15 of this Agreement provides that the developer contemplates to ‘complete the construction’ of the floor within three years from the date of execution of the agreement. When this clause was confronted by the complainant, then the opposite party again in e-mail dated 01.05.2014 has intimated that possession would be tentatively handed over in June, 2014 but, the opposite party has failed to hand over the possession for quite long time. Due to unreasonable delay, the complainant by e-mail dated 29.03.2016 requested to refund her money along with interest. It appears that in retaliation of e-mail dated 29.03.2014, the opposite party by letter dated 06.04.2016 intimated for possession along with demand of balance sale consideration although admittedly by that time “occupation certificate” has not been obtained by the opposite party. The complainant, by producing the photographs, has stated that the construction of the project was incomplete at that time there was no basic amenities available for habitation of the floor. Letter dated 06.04.2016, intimating for possession was an unfair trade practice on behalf of the opposite party to pressurize the complainant. Even till today, the opposite party has failed to produce the “occupation certificate” issued by the competent authority. It is well settled that a home buyers cannot be made wait for unlimited period for possession. Therefore, the request of the complainant for refund of money under e-mail dated 29.03.2016 and legal notice dated 09.07.2016 are legal.

ORDER

In view of the aforesaid discussion, the complaint is 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 refund, within a period of two months from the date of the judgment.