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Judgment
Ram Surat Ram Maurya, Presiding Member
Heard Mr. S.P. Chopra, Advocate, for the complainants and Mr. Gaurav Srivastava, Advocate, for opposite parties-1 and 3, Mr. Amit Verma, Advocate, for opposite party-2 and Mr. Deepak Mittal, Advocate, for opposite party-4.
Om Prakash Chandna and Mrs. Suksham Lala have filed above complaint for directing the opposite parties (i) to refund Rs.9014264/- along with interest @18% per annum and cancel their allotment, (ii) to pay compensation of Rs.10/- lacs, for mental agony and harassment, over and above the financial loss caused due to blockage of the complainant’s hard earned money, (iii) to pay Rs.2/- lacs, as cost of the litigation and (iv) any other relief which is deemed fit and proper be awarded to the complainants.
The facts as stated in complaint and emerged from the documents are that M/s. Tashee Land Developers Pvt. Ltd. (opposite party-1) and M/s. KNS Infracon Private Limited (opposite party-3) were companies registered under the Companies Act, 1956 and engaged in the business of development and construction of residential and commercial buildings and selling its unit to the prospective buyers. M/s. KNS Infracon Private Limited (opposite party-3) in collaboration of land owners of approximately 10.462 acre land at village Chauma, Sector-111, tehsil and district Gurgaon obtained Development Licence No.34 of 2011, dated 20.04.2011 from the Director, Town and Country Planning, Haryana for development of township. M/s. KNS Infracon Private Limited (opposite party-3) assigned the work of construction and sale over the aforesaid land to M/s. Tashee Land Developers Pvt. Ltd. (opposite party-1) vide agreement dated 07.06.2012. They launched a project of group housing in the name of “Capital Gateway” over the aforesaid land in the year 2012. Competent Authority sanctioned Building Plan of the project on 07.06.2012. Government Official Welfare Organization (opposite part-2) used to assist serving and retired government employees in obtaining the houses. M/s. I.A. Housing Solutions Pvt. Ltd. (opposite party-4) was engaged in the business of booking and selling the flats. The complainants were husband and wife and government servant and were looking for a house in the aforesaid locality. They approached Government Official Welfare Organization (opposite party-2) for purchasing the flat. Opposite Party-2 approached opposite party-4 for purchasing the flat for the complainants and as desired by them the complainants deposited Rs.100000/- through RTGS on 12.10.2012 with opposite party-4. When flat in the project “Capital Gateway” was confirmed, the complainants filled up an Application Form, issued by opposite party-2 on 29.10.2012 for Flat No.101, Tower-D, area 1695 sq.ft., price Rs.9237750/- and gave a cheque of Rs.850000/- in favour of opposite party-4. Thereafter, the complainants again transferred Rs.73775/- through RTGS in the account of opposite party-4 on 20.11.2012. Then the complainants filled up Application Form as issued by opposite party-1 on 04.12.2012, for a flat of 1695 sq.ft. for price Rs.9237750/-. Flat Buyer’s Agreement was executed by opposite party-1 as a seller and opposite party-3 as a confirming party in favour of the complainants on 13.12.2012, in respect of Flat No.101, Tower-D, area 1695 sq.ft., for Basic Sale Price Rs.9017400/- (at the rate of Rs.5320/- per sq.ft.) plus other charges, in the project “Capital Gateway”. Vide clause-2.1 of this agreement, possession had to be given within 36 months with grace period of 180 days from the date of sanction of building plan. Vide clause-2.3 of this agreement, delayed compensation @Rs.5/- per sq.ft. per month on area was payable after expiry of 45 months from date of the sanction of building plan. As per demand, the complainants deposited Rs.1230575/- on 23.01.2013 with opposite party-1. Opposite party-1 issued demand letters dated 14.02.2013 for Rs.773292/-, 05.03.2013 for Rs.827825/-, Reminder dated 13.05.2013 for Rs.842698/-. The complainants deposited Rs.773292/- on 25.07.2013. Opposite party-1 issued demand letter dated 20.02.2014, for Rs.1048635/-. The complainants deposited Rs.1037149/- on 26.03.2014. Opposite party-1 issued demand letter dated 01.04.2014, for Rs.1488245/-. The complainants deposited Rs.1476027/- on 29.04.2014. Opposite party-1 issued demand letter dated 07.08.2014, for Rs.1080471/-. The complainants deposited Rs.1070076/- on 26.08.2014. Opposite party-1 issued demand letter dated 10.10.2014, for Rs.901894/-. The complainants deposited Rs.893210/- on 26.11.2014. Opposite party-1 issued demand letter dated 25.02.2015, for Rs.934250/-. The complainants deposited Rs.924908/- on 21.04.2015. Opposite party-1 issued demand letter dated 29.06.2015, for Rs.474875/- and reminders dated 24.09.2015 and 15.03.2016. The complainants protested this demand vide letter dated 23.07.2015 and 25.04.2016. But opposite party-1 did not give any satisfactory reply. The complainants also made a complaint to C.M. Grievances Redress & Monitoring System Haryana on 30.12.2015. The complainants gave a letter dated 05.06.2016, cancelling his allotment and demanding for refund of their entire amount of Rs.9014264/- along with interest @18% per annum and pay compensation of Rs. 10/- lacs. When no reply was given then they filed this complaint on 05.08.2016 alleging deficiency in service.
This Commission vide order dated 24.01.2017 rejected delay condonation application in filing written reply filed by opposite party-1 and 3 and consequently written reply was rejected. By the same order, it has been held that statutory period as provided Section 13 (2) of Consumer Protection Act, 1986, for filing written reply, has also expired for opposite party-2. Thereafter, M/s. I.A. Housing Solutions Pvt. Ltd. (opposite party-4) moved IA/7315/2017, for its impleadment as opposite party in the complainant. Vide order dated 15.02.2018, M/s. I.A. Housing Solutions Pvt. Ltd. was impleaded as opposite party-4, who filed its written reply on 16.03.2018. Opposite party-4 stated that M/s. I.A. Housing Solutions Pvt. Ltd. was a reputed company and used to assist Government Officers Welfare Organization in searching the flats for government employees. Opposite party-4 entered into an agreement with opposite party-1 for booking and selling of 14 flats of 1695 sq.ft. and 9 flats of 1990 sq.ft., in the project “Capital Gateway” and deposited Rs.50/- lacs as earnest money with opposite party-1 on 29.09.2012. This amount of Rs.50/- lacs had to be adjusted from the amounts realized in the booking/selling through opposite party-4. When the complainants approached opposite party-2 for purchasing the flats in this locality, opposite party-2 inquired from opposite party-4 about availability of the flat. Then opposite party-4 took the complainants on the site of the project “Capital Gateway” on 20.10.2012 and showed the project. They having been satisfied with location and progress of the project, talked with the officials of opposite party-1. After several round of meetings, the complainants finalized the flat and filled up the Application Form as issued by opposite party-2 on 29.10.2012. They filled up Application Form as issued by opposite party-1 on 03.12.2012 and Flat No.101, Tower-D in the project “Capital Gateway” was allotted to them through opposite party-4. Flat Buyer’s Agreement was executed by opposite parties-1 and 3 on 13.12.2012. From the amount realized from the complainants an amount of Rs.2788811/- was adjusted towards payment of opposite party-4 up to 30.10.2013 and Rs.754811/- was due as on that day. Both the complainants gave undertakings on 02.02.2013 to Government Officers Welfare Organization that they would abide with the agreement between opposite party-2 and opposite party-4. The complainants and respondent-1 stopped payment to opposite party-4 thereafter. Opposite party-4 issued demand letter dated 26.11.2013 and 12.12.2013 to the complainants but nothing was deposited by them. Opposite party-4 also gave a notice to the complainants dated 14.02.2014, for payment of Rs.8/- lacs. When the complainants did not respond the notice dated 14.02.2014, then Government Officers Welfare Organization gave a legal notice dated 20.09.2014 to the complainants and other opposite parties for the aforesaid amount with interest @18% per annum. Opposite party-4 again gave notices dated 30.12.2015 and 13.12.2016 and legal notice dated 07.04.2017, demanding the aforesaid amount with interest. The complainants have deliberately concealed the aforesaid facts and filed the complaint without impleading opposite party-4.
The complainant filed Rejoinder Reply on 19.04.2018, in which, the facts stated in the complaint were reiterated. The complainants stated that opposite party-4 had filed a civil suit in the Court of Additional District Judge, Saket, New Delhi, for the alleged amount, where his entitlement for that amount would be determined. The controversy raised opposite party-4 in his written reply has no relevancy for deciding this complaint. They denied that the complainants were liable to pay any amount to opposite party-4. The complainant filed Affidavits of Evidence of Om Prakash Chandna and Mrs. Suksham Lata. All the parties filed their short synopsis.
I have considered the arguments of the counsel for the parties and examined the record. So far as claim of M/s. I.A. Housing Solutions Pvt. Ltd. (opposite party-4) in its written reply is concerned, it is admitted that opposite party-4 had filed a civil suit in the Court of Additional District Judge, Saket, New Delhi, for the alleged amount, where his entitlement for that amount would be determined. It is not necessary for this Commission to go into the controversy raised by opposite party-4, for deciding the controversy raised in this complaint.
Vide clause-2.1 of Flat Buyer’s Agreement dated 13.12.2012, possession had to be given within 36 months with grace period of 180 days from the date of sanction of building plan. The date of sanction of building plan has not been provided by either of the parties. However opposite party-1 is realizing the amount of instalment from 23.01.2013 as such period of 42 months would be counted from that date and expired in July 2016. In the written synopsis of opposite parties-1 and 3, filed on 02.06.2022, it has been stated that 90% of the construction of the project was completed. The complainants paid the instalment as per demand and disputed payment of demand letter dated 29.06.2015, for Rs.474875/-, for the first time on the ground that opposite party-1 was not realizing the instalment of requisite level of construction although payment plan was “Construction Linked Payment Plan”. According to the complainants, they had already deposited Rs.9014264/- up to 21.04.2015, for basic sale price of Rs.9017400/-. In such circumstance the complainants cannot be held as defaulter in payment of instalment.
The construction of the project is still incomplete. Supreme Court in Banglore Development Authority Vs. Syndicate Bank, (2007) 6 SCC 442, Fortune Infrastructure Vs. Trevor D’Lima, (2018) 5 SCC 442 and Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, 2019 SCC OnLine SC 438, held that a home buyer cannot be made to wait for possession of the flat for indefinite period. In Banglore Development Authority Vs. Syndicate Bank, (2007) 6 SCC 442, held that in the matter of contractual obligation, there is scope for compensation for mental agony and harassment.
ORDER
In view of the aforesaid discussions, the complaint is allowed. The opposite party-1 is directed to refund entire amount deposited by the complainants with interest @9% per annum from the date of respective deposit till the date of actual payment. The order shall be complied with within a period of two months from the date of this judgment.