P. David Wildson vs Janani Homes Private Limited

Ram Surat Ram Maurya, Presiding Member

Heard Mr. Syed Hasan Isfahani, Advocate, for the complainant and Ms. Anusha Nagarajan, Advocate for the opposite party.

P. David Wilson has filed above complaint for directing the opposite party to (a) deliver the possession of Villat No.27, Janani’s Srinivasam at Form Groove Shrinivasa Nagar, Kazhipattur Village, Chengalpattu Taluk, Kancheepuram District, as per agreement; (b) repayment of amount of Rs.5040000/- to the complainant; (c) pay interest @ 18% p.a. against the principal amount to the tune of Rs.3467168/-, till October, 2016;  (d) pay Rs.1425000/- as rent compensation to the complainant (e) pay Rs.15 lacs to the complainant for mental harassment, torture and deficiency in service; (f) pay Rs.517500/- as compensation for loss of income tax benefit to the complainant from 2013 to 2017; (g) deposit an amount of Rs.5 lacs in the National Commission welfare fund; (h) pay Rs.100000/- towards litigation cost; and (i) any other order which this Commission deems fit in the facts and circumstances of the case.

The complainant stated that the opposite party is a company incorporated under the provisions of Companies Act, 1956. The opposite party was developing a project in the name of Groovy Woodz @ Janani’s Srinivasam at Farm Groove Shrinivasa Nagar, Kazhipattur Village, Chengalpattu Taluk, Kancheepuram District. The opposite party approached the complainant for purchase of an independent villa in the said project and promised that it will make arrangement for rental income of Rs.75000/- per month after handing over the possession. Allured by the representation of the opposite party, the complainant booked a villa in the said project, vide agreement dated 28.11.2012 and paid an amount of Rs.3194544/-. The consideration of the villa was fixed at Rs.15249458/- for 2542 sq. ft. and the payment was to be made as per construction linked plan. As per clause 2 (g) of the agreement, possession of the villa was to be handed over within 15 months from the date of the sale to be executed. As per agreement, 30% of the sale consideration was to be paid at the time of registration of the plot. The complainant had taken house loan from HDFC Bank and paid an amount of Rs.80/- lacs to the opposite party vide cheque dated 09.12.2013. On 12.12.2013, the opposite party executed sale deed in favour of the complainant of the plot measuring 1800 sq. ft. for a total consideration of Rs.45/- lacs. The complainant has paid a total amount of Rs.14446544/- till 01.07.2015. Opposite party is liable to refund the excess amount with interest @ 18% p.a. Possession was to be handover by March, 2015 but the opposite party failed to handover the possession till June, 2016. Counsel for the complainant has relied on the judgment of this Commission in J.L. Sethi vs. Senior Citizen Home Complex Welfare Society in RP/3129/2005 and submitted that the complainant is entitled for delayed interest @ 18% p.a.  On 25.07.2016, the complainant sent a legal notice to the opposite party demanding interest for delayed possession and rental income as also compensation for harassment and mental agony. The complainant has also incurred loss of Rs.1425000/- @ Rs.75000/- per month due to loss of rental income as promised by the opposite party. Alleging deficiency in service on the part of the opposite party, the complainant has filed the above complaint on 18.11.2016.

The complaint was contested by the opposite party by filing the written version on 31.01.2017 stating that the villa was to be constructed and handed over to the complainant within 15 months with a grace period of 90 days. As per agreement dated 28.11.2012, consideration of the villa was fixed at Rs.15249000/-, out of which Rs.9540000/- was the share of the land owner; Rs.4830000/- was the construction cost of the villa; Rs.635000/- for infrastructure and Rs.244000/- towards other amenities. As per agreement dated 28.11.2012, construction was to be started immediately after execution of the sale deed of the land. The sale deed was executed between the complainant and Mr. K. Rashid Khan (land owner) on 12.12.2013. The opposite party has nothing to do with the sale deed dated 12.12.2013. Even, the opposite party is not a party to the said sale deed. The dispute relating to the cost of the land is an inter se dispute between the complainant and the land owner (K. Rashid Khan). As per agreement dated 28.11.2012, the opposite party completed the construction and informed the complainant vide email dated 22.8.2015 to take possession after making payment of balance amount of Rs.753496/. There was delay of 88 days in the offer of possession which had occurred due to delay in making the payment by the complainant as per schedule. 30% payment was to be made at the time of registration of the plot but the said payment was made by the complainant with a delay of 378 days. Similarly, 10% payment which was to be made at the time of completion of brick work, was made with a delay of 376 days and 5% payment which was to be made on completion of plaster work, was made by the complainant with a delay of 319 days. The opposite party has completed the construction as per schedule and the delay of 88 days in the offer of possession is attributable to the complainant. The opposite party is ready to handover the possession after receiving payment of Rs.753456/-.  The complainant has supressed these material facts from this Commission. The opposite party never promised the complainant to make arrangement of rental income of Rs.75000/- per month. On 13.08.2016, the opposite party has sent reply to the legal notice dated 08.8.2016. In the agreement dated 28.11.2012 and the sale deed dated 12.12.2013, size of the plot is mentioned as 1800 sq. ft. on which villa No.27 measuring 2542 sq. ft. was to be constructed. The opposite party has performed all obligations as per agreement and there is no deficiency in service on its part. Rather the opposite party has suffered loss due to non-payment of Rs.753456/- by the complainant in August, 2015. There is no deficiency in service on the part of the opposite party and complaint is liable to be dismissed.

The opposite party also raised the preliminary objection stating that as per clause 9 of the agreement, any dispute between the parties can be resolved only by the Arbitrator. The agreement dated 28.11.2012 is an agreement between K. Rashid Khan (land owner), opposite party and the complaint. K. Rashid Khan is a necessary party to the complaint and the complainant has not impleaded him as an opposite party. Therefore, the complaint is bad for non-joinder of necessary party. The dispute in the complaint is of civil nature and the complainant has tried to give it a colour of consumer dispute. The complaint can be entertained by a Civil Court. This Commission does not have the pecuniary jurisdiction as the cost of the land cannot be included in the services of the opposite party.

The complainant filed the rejoinder, Affidavit of Evidence of David Wilson and the documents. The opposite party filed the Affidavit of Evidence of S.P. Senthil Kumar, Managing Director. Both parties have also filed the written arguments.

We have considered the arguments of the counsel for the parties and examined the record. The party while developing the project on the basis of joint venture agreement dated 04.04.2012 executed between Mr. K. Rashid Khan and the opposite party, the opposite party was required to pay Rs.90/- crores to Mr. K. Rashid Khan as a consideration for development. Under clause 3.1 of this joint venture agreement, entire consideration was payable within 18 months and under clause 3.2, delay in payment of any part of consideration would attract interest @ 24% p.a. Under clause 3.5 of the joint venture agreement, 64% amount realised from the opposite prospective buyers of each payment was payable to the land owner. The agreement dated 28.11.2012 was signed by the complainant and the opposite party as well as Mr. K. Rashid Khan (the land owner). If the total amount mentioned in the agreement dated 28.11.2012 is divided in the ratio of 64% and 36%, then the amount payable to the land owner comes to Rs.94.40 lacs. There is nothing on record to prove that the land owner has waived his right of consideration as mentioned in the joint venture agreement dated 04.04.2012 or had not been paid the amount as per ratio mentioned in the joint venture agreement i.e. 64% on every payment received by the developer. If the land owner and the complainant have mentioned a lesser amount i.e. Rs.45 lacs as total consideration of the land of 1800 sq. ft. then there is nothing on record to show that the land owner has not received entire consideration as per joint venture agreement and the agreement dated 28.11.2012. The complainant has deliberately not impleaded the land owner as opposite party in this complaint. Therefore, collusion between the complainant and the land owner for mentioning the lesser amount of consideration in order to save stamp duty is apparent and on the basis of  sale consideration disclosed in the sale deed dated 12.12.2013, the complainant is not entitled for refund of any amount.

Under clause 2 (g) of the agreement dated 28.11.2012, 15 months period from the date of the sale deed of the land with grace period of 90 days has been provided for construction of the villa. According to the opposite party the construction was completed and possession was offered to the complainant on 22.08.2015. There was no inordinate delay. In any case since the payment itself was delayed by the complainant as mentioned in the written reply, therefore on account of delay in offer of possession, the complainant is not entitled for any delay compensation.

As far as question of arbitration is concerned, Supreme Court in M/s Emaar MGF Land Limited vs. Aftab Singh – I (2019) CPJ 5 (SC), laid down that Arbitration clause in the Agreement does not bar the jurisdiction of the Consumer Fora to entertain the Complaint. Regarding the issue of complicated question of fact, firstly there is no complicated of fact involved in this case. Moreover, this Commission is competent to decide the complicated questions of fact in view of the judgment of Supreme Court in CCI Chambers Coop. HSG. Society Ltd. v. Development Credit Bank Ltd., Appeal (Civil) 7228 of 2001.  Regarding question of pecuniary jurisdiction, as the total cost of the flat is Rs.15249458/-, this Commission has the jurisdiction to entertain the complaint.

ORDER

In view of the aforesaid discussion, the complaint has no merit in respect of refund of sale consideration and delay compensation. The complaint is disposed of giving liberty to the complainant to take possession in terms of letter dated 22.08.2015 and reminder dated 01.09.2015. If any amount was payable by the complainant, then the opposite party shall take interest on it @ 9% per annum from October, 2015 till the date of payment. After settlement of account, possession will be handed over without any further delay.