Ram Kumar Gupta & Anr vs M/s Vatika Ltd

Heard Mr. Akshat Gupta, Advocate, for the complainants and Mr. S.K. Sahni, Advocate, for the opposite party.

Ram Kumar Gupta and Anil Kumar Gupta have filed above complaint, for directing the opposite party to (i) execute the sale deed in their favour and provide occupancy certificate, (ii) pay Rs.350000/-, as compensation for unfair trade practice and deficiency in service, (iii) refund the amount realized for additional area of 223 sq.ft., (iv) provide details of super area of the Unit No.Ggn-21/B1-1403, at 13th Floor, Block B1, complex Gurgaon 21/Next, (v) pay Rs.3917555/- as compensation for delayed period of possession, (vi) pay Rs.5/- lacs, as compensation for mental agony and harassment, (vii) pay Rs.one lac, as costs of the litigation; and (vi) any other relief which is deemed fit and proper in the facts and circumstances of the case.

The complainants stated that M/s. Vatika India Next (the opposite party) was a company, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing project and selling its unit to the prospective buyers. The opposite party launched a group housing project, in the name of “Gurgaon 21/Next” at Gurgaon Manesar Urban Complex, 2021, Sector-82-85, Gurgaon, Haryana, in the year 2008 and made wide publicity of its facilities and amenities. Believing upon the representations and promises of the opposite party, the complainants booked a flat on 09.04.2008 and deposited booking amount. At the time of booking, basic sale price was agreed @Rs.2470/- per sq.ft. The opposite party allotted Unit no. B1-1403, at 13th Floor, Block B1, complex Gurgaon 21/Next and executed Apartment Buyer’s Agreement on 21.02.2009 in their favour, in which super area 1998.47 sq.ft. and total consideration of Rs.6325425.30/- were mentioned. Basic sale price was increased to Rs.2570/- per sq.ft. By the time draft Apartment Buyer’s Agreement was sent to the complainants, they had already deposited Rs.1650000/- as such had no option but to sign it. Annexure-III of the Agreement provides payment plans.The complainants opted for “construction link payment plan”. Clause-10.1 of the agreement provides 3 years period from the date of the agreement, for completing the construction. As per demand, the complainants deposited total Rs.6135571.78/- till 06.07.2014. The complainants paid Rs.103302/-, towards interest for delay in payment of instalments, due to unprofessional handling of the opposite party. The period of 3 years expired on 20.02.2012 but neither possession was delivered nor delayed compensation was paid. The complainants gave legal notice dated 11.03.2015, to pay compensation for delay in possession as per clause-11.5 of the agreement. The opposite party issued letter for offer of possession dated 13.10.2016. The complainants took possession on 03.11.2016, under duress as the opposite party threatened that issuance of “occupation certificate” and execution of sale deed would further delay the possession. VAT and Service Tax were enhanced w.e.f. 18.12.2013. Due to delay in handing over possession, this extra liability had come upon the complainants. The complainants were not paid any compensation for delay in possession. The complainants measured the covered area and super area and found that covered area was 1318 sq.ft. and super area was 1757 sq.ft., in place of 1998.47 sq.ft. as mentioned in the agreement and 1980 sq.ft. as informed by the opposite party at a later stage. The walls had to be painted with Oil Bound Distemper but it was white-washed. This complaint was filed on 04.09.2017, alleging deficiency in service.

The opposite party has filed its written reply on 23.08.2018, in which, booking of the flat on 09.04.2008, allotment of flat, execution of Apartment Buyer’s Agreement on 21.02.2009 and deposits made by the complainants, have not been disputed. The opposite party stated that the complaint has been filed against Vatika India Next, which is not a legal entity and the complaint is liable to be dismissed on this ground alone. The complainants filed CC/1282/2015, before State Consumer Disputes Redressal Commission, Delhi, which was dismissed as withdrawn with liberty to filed fresh complaint before appropriate forum. Total cost of the flat in question is Rs.6325425.30 and the complaint does not fall within pecuniary jurisdiction of this Commission. The opposite party has also raised preliminary objections that the complainants were not consumer and this Commission has no territorial jurisdiction. The complainants booked the flat through a broker i.e. M/s. Realty Partners. It has been denied that the rate of basic price was changed. Rate of Rs.2570/- per sq.ft. is mentioned in application form filled on 09.04.2008. Clause-10.1 of the agreement was subject to just exceptions & conditions mentioned in Clauses-11.1, 11.2, 11.3 and 39. Gas Authority of India was laying down gas pipeline through the project land. The opposite party filed a writ petition in Punjab & Haryana High Court, against Gas Authority of India, which was dismissed. Due to which the opposite party had revised the layout plan. Haryana Urban Development Authority unreasonably delayed acquisition of land for constructing 75 mtrs and 60 mtrs wide roads, connecting the project land. In the absence of approach road, the project was delayed. Due to MGNREGA scheme, the construction industries are facing with the problem of labour shortage. Supreme Court and Punjab & Haryana High Court imposed ban on mining operation and extracting ground water for construction and due to agitations, delay was caused in supply of cement & steel which created shortage of stone sand, cement, steel etc. High Tension electricity line was passing through the project land. DHBVN took time in shifting the line. The complainants were defaulter in payment of instalments from very beginning and used to deposit instalments with delay, details of the delayed periods have been given in paragraph-3.2 of the Reply. The complainants deposited Rs.1145163/- till execution of the agreement. Start of excavation was communicated to the complainants vide letter dated 21.10.2009. The complainants had opted for “construction link payment plan” as such all the stages of construction were communicated in advance with demand letters. The opposite party waived an amount of Rs.31218/- towards interest for delayed payment. The opposite party completed the construction, applied for issue of “occupation certificate” and offered possession to the complainants, vide letter dated 12.02.2016 along with demand of Rs.584870.93. The complainants were required to pay the balance amount and complete documentation for taking possession.The complainants gave indemnity-cum-Undertaking on 16.02.2016, for taking possession but delayed other formalities and took possession on 03.11.2016. In possession letter, both the complainants have recorded their satisfaction in respect of construction, measurements, fitting/ fixtures as per specifications. Now they are falsely raising issue in respect of paint and measurement. Super area has been reduced from 1998.47 sq.ft. to 1980 sq.ft., which has been mentioned in possession letter. Covered area includes area of the walls on pro-rata basis but the complainants are not counting it. “Occupation certificate” was issued on 24.10.2016. The complaint has been filed on various false and frivolous allegations and is liable to be dismissed.

The complainants filed Rejoinder Reply, Affidavit of Evidence of Ram Kumar Gupta and documentary evidence. The opposite party filed Affidavit of Evidence of Vipin Kumar Marya and documentary evidence. Both the parties have filed their written synopsis. The complainants filed IA/19173/2019, for correcting the memo of parties, by writing M/s. Vatika Ltd. in place of M/s. Vatika India Next, which was allowed on 14.02.2019.

We have considered the arguments of the parties and examined the record. Although in the complaint, the allegation has been made that covered area was 1318 sq.ft. and super area was 1757 sq.ft., in place of 1998.47 sq.ft. as mentioned in the agreement and 1980 sq.ft. as informed by the opposite party at a later stage but this fact has been denied by the opposite party. The opposite party has stated that Super area was 1980 sq.ft. and covered area 1561 sq.ft. The complainants have not filed any evidence to prove reduction in area. Allegation of change the rate of basic price is also not proved as in the application filled on 09.04.2008, the rate of Rs.2570/- per sq.ft. is mentioned.

As per clause-10.1 of the agreement, due date of possession was on or before 22.02.2012. The opposite party offered possession to the complainants, vide letter dated 12.02.2016. The complainants gave indemnity-cum-Undertaking, duly sworn before Public Notary on 16.02.2016 (filed on pg-97 of Reply). The complainants have concealed these material facts. But there was delay in offer of possession. The opposite party is liable to pay compensation for delay in possession. Supreme Court in Civil Appeal No.1232 of 2019 R.V. Prasannakumar Vs. Mantri Castles Pvt. Ltd. (decided on 11.02.2019) and Wg. Cdr. Arifur Rahman Khan Vs. DLF Southern Homes, Pvt. Ltd., (2020) 16 SCC 512, held that delayed compensation is payable in the form of interest @6% per annum on the deposit of the home buyer from due date of possession till the offer of possession.

Relying upon Clauses-11.1, 11.2, 11.3 and clause-39 of the agreement, the opposite party argued that the delay has occurred for force majeure reasons and liable to be condoned. Ministry of Petroleum and Natural Gas, Govt. of India issued notification dated 05.02.2009, for laying down gas pipeline, which was passing through project land as per notification. Gas Authority of India Ltd. (GAIL) held a meeting dated 25.05.2009, in which, the officers of GAIL pointed out that re-routing will increase cost. GAIL wrote a letter dated 29.05.2009 to Director, Town and Country Planning Haryana, for sanctioning the rout through Sector-77, 78, 82, 83-A, 86, 90, 93 & 95. District Town Planner, Gurgaon wrote a letter dated 05.08.2009 to GAIL for laying down gas pipeline through the green area. The opposite party wrote a letter dated 24.10.2009 to District Town Planner, Gurgaon, for changing the rout of pipeline. Thereafter, the opposite party filed a writ petition in Punjab & Haryana High Court, against GAIL, which was dismissed. Due to which the opposite party had revised the layout plan and started construction and issued demand of first instalment i.e. “on start of excavation” on 27.10.2009, which is proved from letter dated 27.10.2009.

Punjab & Haryana High Court imposed van on extracting ground water for building construction vide order dated 31.07.2012 passed in CWP No.20032 of 2008. In compliance of the said order, Deputy Commissioner, Gurgaon vide letter dated 01.09.2012, stopping the construction of the opposite party. Although the opposite party has not stated that for what period construction was stopped but from statement of account it is proved that the complainants paid instalment on 08.12.2011 and thereafter on 07.03.2013. The opposite party has stated that Haryana Urban Development Authority unreasonably delayed acquisition of land for constructing 75 mtrs and 60 mtrs wide roads, connecting the project land. In the absence of approach road, the project was delayed but it has not been mentioned that for what period, construction was delayed due to this reason. It has been stated that due to MGNREGA scheme, the construction industries are facing with the problem of labour shortage but this is not a force majeure reason. It has been stated that Supreme Court banned mining operation but the period for which construction was affected due to this ban, has not been mentioned. Similarly allegations that due to agitations, delay was caused in supply of cement & steel which created shortage of stone sand, cement, steel etc. is also vague. Shifting of High Tension electricity line was in same period for which the construction was stopped due to GAIL.

As payment plan was “construction link” and instalment “on completing flooring work” i.e. before “offer of possession” was shifted to 20.11.2013. Thereafter the opposite party would be entitled for a period of six months for completing construction and offer of possession. Under clause-39 of the agreement, the opposite party is entitled for extension of the period for which the construction was delayed for force majeure reasons. So far as the allegations that the complainants have delayed payment of instalments, is concerned, the opposite party had charged penal interest for the delayed period as such no extension on this ground can be given.

ORDER

In view of the aforesaid discussions, the complaint is partly allowed. The opposite party is directed to give/adjust compensation for delay in possession in the form of interest @6% per annum on the deposit of the complainants from 21.05.2014 to 11.02.2016, within a period of two months from the date of this judgment. The opposite party will execute conveyance deed of the flat allotted to the complainants, without any further delay after settlement of the account.