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Judgment
The present Consumer Complaint has been filed under Section 21(i) of the Consumer Protection Act, 1986 (for short “the Act”) by Shri Rajesh Singh (hereinafter referred to as the “Complainant”) against Opposite Party, M/s. Imperial Housing Ventures Pvt. Ltd (hereinafter referred to as the “Developer”) seeking refund of the amount paid towards purchase of Apartment in their Project, namely “Paras Tierea” along with interest as the Opposite Party Developer has failed to complete the Project and hand over the possession of the Apartment to them within stipulated time.
The facts as narrated in the Complaint are that the Complainant had booked an Apartment in the Project under the name and style as “Paras Tierea” supposed to be developed by the Opposite Party Developer at Plot No. GH-01, Sector – 137, Noida - Greater Noida Expressway, Noida – 201301 (hereinafter referred to as the Project) for a total Sale Consideration of 93,53,000/- including Preferential Location Charges, Lease Rent, Infrastructure Charges, Car Parking Charges and Interest Free Maintenance Security Deposit. Vide Allotment Letter dated 14.02.2013, the Complainant was allotted Apartment bearing No. T-28/0104 in Tower T-28, Type E, Unit Type 3 BHK + 4Ts+ Ut. having Super Area of 1695 Sq. Ft. (approx.). The Terms and Conditions of Allotment Letter were signed between the parties on 08.04.2013. As per Clause 5 of the Allotment Letter/Agreement, the possession of the allotted Apartment was to be delivered to the Complainant within 24 months from the date of issuing allotment letter with a grace period of further 12 months meaning thereby the possession of the Apartment was supposed to be handed over on or before April 2016.
It is further averred by the Complainant that he was required to make the payment of installments as per Schedule II of the Allotment Letter and he paid a sum of 91,81,992/- i.e. approximately 95% of the total Sale Consideration to the Opposite Party Developer till 27.02.2016. However, on personal visit to site, he was shocked to find that the construction was not being carried out. Even on visit to the office of the Opposite Party Developer, there was no satisfactory reply as to when the construction would be completed. The Complainant was also asked to make the payment as per the demands otherwise the allotment would be cancelled or the amount deposited would be forfeited. It is also alleged by the Complainant that though there was delay in completion of the Project by the Developer and delayed compensation was not being paid but on the contrary they were charging interest @18% p.a. for the delayed payment of the installments. The Opposite Party Developer, vide letter dated 14.01.2016, demanded the outstanding amount with interest @18% p.a. and on 27.02.2016, the Complainant paid an amount of 24,01,327/- to the Developer despite delay in Project. Thereafter, by Letter dated 28.04.2016, the Opposite Party Developer informed the Complainant in advance regarding the completion of the Project and offer of possession. Further, vide another Letter dated 09.05.2017, the Complainant was again assured by the Opposite Party that the possession of the booked Apartment shall be handed over very soon. However, no offer of possession was made by the Developer. Hence, alleging deficiency in service and Unfair Trade Practice on the part of the Opposite Party Developer the Complainant has filed the present complaint with the following prayers:-
a) Allow the present complaint and direct the Opposite Party to refund the Principal amount of sum of 91,81,692/- along with 18% interest p.a. from the date of payment to date of receipt.
b) Saddled the Opposite Party with costs of 2,00,000/- for causing mental agony to the complainant;
c) Award cost of litigation to the tune of 1,00,000/- in favour of Complainant and against the Opposite Party.
d) Direct the Opposite Party to submit completion certificate in respect of housing project in question and amenities as provided in agreement and allotment letter issued by it to the complainant;
e) Any other or further order(s) as may deem fit and proper in the facts and circumstances of the present case
Upon notice, the Opposite Party Developer has contested the Complaint by filing its Written Version and raising the preliminary issues that; the Complainant is not a “Consumer” as the Apartment was purchased for commercial purpose and earning gain; the Commission has no pecuniary jurisdiction to entertain the Complaint; the present Complaint is not maintainable since the offer of possession had already been offered to the Complainant by letter dated 20.9.2017 but the Complainant has failed to take possession of the Apartment till date; the Complainant is liable to pay the outstanding amount of 6,14,217/-; the Project is complete in all respects and 2124 families are already residing in the Project; Complainant is a chronic defaulter in making the payment of the installments and a final notice dated 14.01.2016 was sent to the Complainant to clear all the dues;
On merits, it is pleaded that; as per Clause 15 of the Provisional Allotment, the Complainant has agreed that the company shall be entitled to reasonable extension in delivery of the possession of the Apartment in the event of any default or negligence attributable to him in fulfilling the terms and conditions of allotment; Clause 5 (b) of the terms and conditions of Allotment stipulates that if the construction of the Apartment and/or the handing over of the possession of the Apartment is delayed by any reasons beyond the control of the company, then the buyer shall not have any claim against the company by way of any damages/compensation; construction of the Project was to be completed within 36 months from the date of receipt of duly signed detailed terms and conditions along with all the Annexures; no cause of action has arose in favour of the Complainant and the Complaint is liable to be dismissed.
We have heard the Complainant appearing in person and the Learned Counsel for the Opposite Party. We have also gone through the Complaint, material available on record, evidence adduced by the parties as well as the Written Submissions.
According to the Complainant, despite having received the hefty amount of 91,81,992/- i.e. approximately 95% of the total Sale Consideration, the Opposite Party Developer has despondently failed to complete the Project and hand over the possession of the Apartment booked by the Complainant, in all respects on time as prescribed in the Allotment Letter. He received letter dated 20.09.2017 offering possession by the Developer but on 28.08.2017, he had already filed the present Complaint. It is urged that he is no more interested in taking the possession of the Apartment booked by him at this belated stage. He further submitted that the Opposite Party Developer has charged interest @18% p.a. on delayed payment and as such the Opposite Party Developer has to refund the entire deposited amount with same rate of interest. Per contra, Learned Counsel appearing for the Opposite Party Developer submitted that the present Complaint is rendered infructuous as the possession has already been offered to the Complainant on 20.09.2017, complete in all respect after issuance of the Completion Certificate by the Competent Authority on 18.09.2017. He further argued that the only reason for not accepting the offer of possession by the Complainant is recession in real estate market which shows that the complainant was merely an investor. Complainant has defaulted in timely payment of installments despite repeated reminders. The Complainant has failed to fulfill his part of obligation and therefore cannot claim performance of reciprocal promises of Respondent. Further, the Complainant has not cancelled the allotment and as such he cannot ask for refund of the deposited amount. There is no inordinate delay in handling over possession and hence the complainant is not entitled for refund and compensation as prayed.
We have given our anxious consideration to the arguments advanced by the Complainant and learned Counsel for the Opposite Party Developer.
The defence taken by the Developer for delay in completion of the Project and handing over the possession of the allotted Apartment to the Complainant has already been dealt with in detail by a Co-ordinate Bench of this Commission in the case of Anil Agarwalla & Anr. Vs. Imperial Housing Ventures Pvt. Ltd. - (Consumer Complaint No. 3321 of 2017 decided on 12.01.2022) which relates to the same Project, i.e. “Para Tierea” located at Sector 137, NOIDA, District Gautam Budh Nagar, Uttar Pradesh. While rejecting the contentions of the Learned Counsel for the Developer, it was held as under:-
“4. The builder filed its written reply on 06.02.2018, in which, material facts have not been denied. It has been stated that the period of possession was three years from the date of agreement, which was executed on 17.05.2013. Under the terms of the agreement, the builder was further entitled for extension of the period of construction for the force majeure and other causes mentioned in the agreement. The builder employed the requisite man power for the construction of the building and completed it and obtained Occupation Certificate on 18.09.2017. The builder offered possession to the complainants, vide letter dated 20.09.2017 and asked to pay the balance amount and complete the formalities. Instead of paying balance amount, the present complaint was filed on 13.11.2017, which was not maintainable. The complainants were defaulter in payment of instalment earlier also for which reminders letter dated 12.01.2015, 14.01.2016 and 28.06.2016 were issued to them. Since the complainants were themselves defaulter, as such, they cannot raise the issue in respect of delay of completion of the constructions. After 18.09.2017 about 2124 home buyers have taken possession in the flats allotted to them. The complainants are making excuse for not taking possession by writing one or other letters. The builder has given suitable reply of the letters/queries made by the complainants. The conduct of the complainants shows that they had purchased the flat for investment purpose and due to down fall in the market of Real Estate, now they want refund of their money as such they are not consumers. The total value of the flat was Rs.78,63,888/- as such this Commission has no pecuniary jurisdiction. This complaint is liable to be dismissed.
The complainants filed their rejoinder reply on 05.03.2018, in which, facts stated in the complaint were reiterated. It has been stated that the flat was booked for own residence and not for any commercial purpose. Mahesh Agarwalla, son of complainant-1 took admission in Lloyd Law College, Greater Noida. Existing residence of the complainants was at about 45 Km. from the aforesaid College, as such for their own residence, the flat was booked. The complaint was filed for refund of principal amount of Rs.7631013/- and the interest of Rs.2700000/- and Rs.1500000/- as compensation and total valuation comes to Rs.11831013/- as such this Commission has pecuniary jurisdiction. Perusal of the letter dated 20.09.2017 shows that it was issued merely to realise the money. In this letter, it was nowhere stated that Occupancy Certificate had been obtained, therefore, the complainants vide letter dated 25.09.2017 called for information regarding Occupancy Certificate/Completion Certificate and whether the unit allotted to the complainants was complete in all respect and ready for taking possession. The complainants have also raised their protest regarding liability to pay demanded money as given at Serial No.7, 8 and 9 in the letter/statement of account dated 20.09.2017. In the statement of account, further Rs.205606/- was shown as interest while the complainants had made timely payment of the instalments and no interest was liable to be charged. In response to the letter dated 25.09.2017, the builder by their e-mail dated 26.09.2017 and 05.10.2017 admitted that finishing work in the flat was yet to be carried out and same would be done post clearance of the dues. The builder refused to provide a copy of the occupancy certificate. The builder also denied the physical inspection of the flat by the complainants, which gave a reasonable doubt in the minds of the complainants, in respect of the completion of the construction of the flat. The possession was promised to be handed over within a period of 36 months with a grace period of six months from the date of allotment i.e. 29.09.2012, which had lost in January, 2015. Even in September, 2017, the builder has not supplied the copy of the Occupancy Certificate to the complainants although the complainants have made payment of more than 95% of the sale price, therefore, the complainants have no way but to file the present complaint. The builder has not only committed deficiency in service, but had also adopted unfair trade practice. The builder has realised the amount of 11 instalments till 30.01.2016. The letter dated 28.06.2016 amounts to illegal demand. The alleged agreement dated 17.05.2013 was not executed by the complainants and no reliance can be placed upon it.
The complainants filed Affidavit of Evidence of Anil Agarwalla. The builder filed affidavit of evidence of Mr. Mahesh Kumar Tripathi and Affidavit of Admission/Denial of the documents of the complainants. Both the parties have filed their short synopsis.
I have considered the arguments of the counsel for the parties and examined the record. This complaint has been filed on 13.11.2017, for refund of sale consideration of Rs.76,31,013/- paid to the builder, if the builder is failed to give possession within 15 days. According to the builder, they had already offered possession, vide letter dated 20. 09.2017. Before taking possession, the buyers had to clear the dues according to the Terms and Conditions and complete other formalities, for execution of conveyance deed. So far as final finishing work is concerned, it is always completed after final payment, so that at the time of taking possession, nothing remained incomplete. Instead of making final payment and completing other formalities, the complainants wrote letter dated 25.09.2017, 27.09.2017, 06.10.2017 and 24.10.2017 and ultimately filed this complaint. As such the complaint is liable to be dismissed as the relief as claimed has already been offered to them before filing the complaint.
The complainants submitted that the flat was allotted to them on 29.07.2012. At the time of allotment, they were assured that possession would be given within 36 months with grace period of six months, which was completed in January, 2016. Till 30.01.2016, the complainants have paid Rs.7631013/- (i.e. more than 95% of sale price), but the builder was not in a position to give possession to them. The builder vide letter dated 28. 06.2016, raised illegal demand of Rs.293053/-, which was protested at that time. Then the builder kept silence for about one year. In the alleged possession letter dated 20. 09.2017, it was nowhere mentioned that “Occupation Certificate” had been obtained. In the statement of account as supplied along with letter dated 20.09.2017, again (i) one time electricity connection charges (ii) Labour cess (iii) Core cutting/DG indicator and (iv) Interest of Rs.205606/- were demanded. In the absence of any indication of “Occupation Certificate” in this letter, the complainants demanded information regarding issue of “Occupation Certificate”. In spite of various letters, the builder did not supply copy of “Occupation Certificate” nor permitted physical inspection of the flat, as such, the complainants were compelled to file this complaint.
A perusal of the letter dated 20.09.2017, shows that it does not indicate anywhere that “Occupation Certificate” had been obtained. In view of previous demand letter dated 28.06.2016, this letter created a doubt in the mind of the complainants about the completion of the flat. In spite of various letters, the builder did not supply copy of “Occupation Certificate” nor permitted physical inspection of the flat, as such, the complaint was filed and it is maintainable. The builder was bound to disclose “Occupation Certificate” and also permit physical inspection. The complainants had already deposited Rs.7631013/- till 30.01.2016. Denial of physical inspection and “Occupation Certificate” was unfair, which compelled the complainants for filing this complaint.
The builder filed a copy of an agreement dated 17.05.2013. The complainants have denied execution of this agreement. The agreement does not contain signature of the complainants. Therefore, no reliance can be placed on it. The builder took the case that at the time of allotment on 29.07.2012, they were assured that possession would be delivered within three years i.e. up to July 2015. The builder did not take plea of force majeure for delay in construction. Six months grace period was also expired in January, 2016.The builder has filed only one reminder dated 12.01.2015, which is prior to the promised date of possession, as such, the complainants cannot be said as a defaulter. By not supplying “Occupation Certificate” and not permitting inspection, the builder has committed unfair trade practice. In present case, offer of possession was delayed for about one year eight months.
Supreme Court in Fortune Infrastructure Vs. Trevor D’ Limba, (2018) 5 SCC 442, Pioneer Urban Land & Infrastructure Ltd. Vs. Govind Raghavan, (2019) 5 SCC 725, Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, 2019 (6) SCALE 462 and Wg.Cdr. Arifur Rahman Khan Vs. DLF Southern Homes Pvt. Ltd., (2020) 16 SCC 512, held the buyer cannot be made to wait for unlimited period for possession. In case of inordinate delay in offer of possession, the buyer was entitled for refund of money. So far as judgment of Supreme Court in Ireo Grace Realtech Vs. Abhishek Khanna, (2021) 3 SCC 241, is concerned, in this case, delay in offer of possession was found as 7 months. As such Supreme Court held that the buyer was obligated to take possession.
In view of aforesaid discussions the complaint is allowed. The opposite parties are directed to refund entire amount of Rs.7631013/- along with interest @ 9% per annum, from the date of each deposit till actual payment, to the complainants, within two months from the date of this judgment.
In the present case also, in the year 2013, the Complainant booked an Apartment with the Opposite Party Developer in the Project, namely “Paras Tierea”. Vide Allotment Letter dated 14. 02.2013, the Complainant was allotted Apartment No. T-28/0104 in Tower 28, Type E, Unit Type 3 BHK + 4 Ts+Ut. As per the terms of the Allotment Letter/Agreement, the possession of the booked Apartment was supposed to be handed over to the Complainant within a period of 36 months from the date of issuing of Allotment Letter, including grace period that means latest by April 2016. The Complainant has paid a sum of 91,81,992/- out of total Sale Consideration of 93,53,000/- but still the Opposite Party Developer has failed to complete the Project and hand over the possession within the stipulated time. It is submitted by the Opposite Party Developer that the offer of possession was made to the Complainant vide letter dated 20.09.2017. As noted above by the Co-ordinate Bench of this Commission, a bare perusal of the letter dated 20.09.2017 would reveal that there is no mentioning in the letter about obtaining of Occupancy Certificate by the Opposite Party Developer. Under these circumstances, we are of the considered view that in the present case also, the Complainant cannot be made to wait indefinitely for possession of the booked Apartment and he is entitled for refund of entire deposited amount along with reasonable interest.
Respectfully following the decision of the Co-ordinate Bench of this Commission in the case of Anil Agarwalla (supra), we partly allow the Complaint and direct the Opposite Party Developer to refund the entire principal amount deposited by the Complainant with interest @9% p.a. from the respective date of deposit till the realization, within a period of six weeks from the date of passing of this order failing which the amount shall carry interest @12% p.a. for the said period. The Opposite Party Developer shall also be liable to pay 50,000/- as costs of litigation to the Complainant.
All pending applications, if any, stand disposed of.