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Judgment
A. P. Sahi, President Member
Heard learned counsel for the complainants and the learned counsel for the opposite parties.
The present complaint was filed claiming refund as against the bookings of the apartments developed by the opposite party no. 1, M/s. Anthem Yash Infracity Pvt. Ltd. The complaint was originally preferred by 29 people, whereafter three people sought impleadment that was allowed and the present complaint is on behalf of 32 complainants.
The relief prayed for are as follows:
(a) Direct the Opposite Party to refund the amounts paid by the complainants and similarly situated persons in respect of flats at project Özone Classik situated at Rajnagar Extn. NH-58, Ghaziabad, UP which was to be constructed and developed by M/s Anthem Yash Kirti Infracity Pvt. Ltd. And /or;
(b) Direct the opposite party to pay interest on the aforesaid amounts to respective complainant at the rate of 24% per annum from the date of deposit of each instalments by respective complainant/ similarly situated consumers till the date of actual payment/ refund made by the Respondent;
(c) Direct the opposite party to pay compensation for mental harassment and financial hardship caused to the complainants by deficiency in service on the part of respondent at the rate of Rs.5,00,000/- each to be paid to each complainant by the opposite party;
(d) Direct the opposite party to pay Rs.2,00,000/- to each complainant towards litigation cost and other legal miscellaneous expenses incurred by the complainants in realizing the aforesaid claims from the opposite party;
(e) Pass such other or further orders granting any other relief as this Honble Commission may deem fit and proper in the facts and circumstances of the case.
Learned counsel for the opposite party no. 1 submits that the premises could not be offered to the complainants as per the agreement on account of the cancellation of the entire sanctioned plan and its substitution by a fresh plan. The complainants after the fresh plan, were according to him, offered the apartments, but they failed to accept the same and have filed the present complaint seeking refund of their amounts.
Learned counsel for the opposite party no. 1 submitted that the situation was beyond the control of the opposite party no. 1 as the opposite party no. 2, Ghaziabad Development Authority had proceeded to cancel the map. Consequently, a fresh sanction was sought that was subsequently granted. The fact remains that the delay in offering of the apartments to the complainants was not on account of any default on the part of the complainants but on account of the aforesaid situation, which has been pleaded by the opposite party no. 1.
The cancellation of the map by the opposite party no. 2 is a reason, which is clearly attributable to the opposite party no.1 and therefore cannot be to the disadvantage of the complainants, who have not committed any default. These facts remained undisputed.
The payments that were to be made as per the payment plan filed along with the complaint and to that extent all the complainants have extended their deposits. The statement in respect of 29 complainants is contained in the chart, which is extracted herein under:
Sl.
No
Name
S/W/D of
Age
R/o
Tower/ Flat No.
Date of BBA
Date of Booking Application
Total Consideration
Total Paid Amount
Time
Months
1
Renu Chauhan
Sanjeev Chauhan
47
F-17, 1st floor, Sudersan Park, New Delhi-15
A-708
22.03.2015
NA
27,62,100
9,97,741
30
2
Dr. Harshu Gupta
Dr. Subhash Gupta
54
S-19, Shalimar Garden, Saibabad, Gaziabad, UP
B-105
23.03.2015
NA
29,13,787
10,19,820
30
3
Prithvi Raj Sindhi
Ram Kumar Sindhi
54
21, Old Survey Road, Dehradun, Uttarakhand
B-705
30.03.2015
NA
29,54,312
7,38,578
30
4
Nitin Mittal
Rakesh Kr. Mittal
41
Flat No. M-6B, 6/15, Sector-2, Rajendra Nagar, Saibabad, Gaziabad, UP
B1-1004
NA
27.08.2014
41,58,000
12,73,419
30
5
Rajeshwar Kumar Bharti
Nawal Kishore Bharti
41
Vill+Post-Sakaddi, Jalalpur, Distt- Chappra, Bihar
B1-1506
28.10.2014
NA
27,25,000
8,17,500
30
6
Vivek Singh
S.P. Singh
36
C-31, Shyam Park Extn., Saibabad, Gaziabad
B1-1406
NA
09.10.2014
25,00,000
5,15,450
30
7
S.C. Bansal
Late Sh. B.B. Bansal
68
940/2, Shashtri Nagar, Meerut, UP
E-305
NA
31.10.2013
29,03,380
4,05,507
30
8
Saroj Bansal
S.C. Bansal
68
940/B2, Shashtri Nagar, Meerut, UP
E-404
NA
07.09.2013
40,29,550
5,68,357
30
9
Manju Bharati
J.P. Bharati
59
D-54, Sector-P, Aliganj, Lucknow, UP
B-704
03.06.2015
NA
28,95,760
7,38,578
30
10
Ajay Kumar Singhal
Late Sh. C.P. Singhal
56
B-283, Patel Nagar-II, Gaziabad, UP
D-902
27.03.2015
NA
33,15,168
8,09,189
30
11
Kamlesh Kr. Shukla
R.A. Shukla
45
H-62, Sector-23, Sanjay Nagar, Gaziabad, UP
D-1402
NA
06.09.2014
29,00,000
2,50,000
30
12
Vipin Kr. Singhal
V.P. Singhal
47
B-283, Patel Nagar-3, Gaziabad, UP
D-802
27.03.2015
NA
33,26,611
8,35,000
30
13
Mukesh Tyagi
C.K. Tyagi
49
Village+Post=Bijouli, Distt.-Meerut, UP
C-606
30.06.2015
NA
39,63,000
12,99,694
30
14
Dr. Pradeep Kumar
Sri Prem Chand
37
312, Novelty Gali, Behind Bihari Girls Schools, Bodem Bazaar, Hazaribagh, Jharkhand
A-701
23.04.2015
NA
29,43,970
10,63,437
30
15
Sudhir Goyal
Sh. S.P. Goyal
58
47, Gr. Floor, New Rajdhani Enclave, Delhi
15
NA
11.02.2015
53,64,000
8,04,600
30
16
Usha Gupta
Akhil Gupta
54
52, Brahmpuri, Sahastradhara Road, Dehradun, Uttarakhand
D-703
NA
18.02.2013
27,92,887
4,33,240
30
17
Manoj Kumar
Gopal Singh
33
Thok Samman, Bahaj, Bharatpur, Rajasthan
A-805
11.03.2015
NA
27,18,540
9,82,006
30
18
Vivek Tripathi
Y.N. Tripathi
40
H-3/8, Vikram Nagar, Rawat Bhata, Rajasthan
C-205
NA
27.10.2013
40,94,215
13,04,707
30
19
Arvind Kr. Gautam
Totaram
33
383, Chivlokpuri, Bank Colony, Kankarkhera, Meerut, UP
B-805
27.06.2015
NA
30,54,945
9,21,625
30
20.
Rohit Bhatnagar
S.K. Bhatnagar
44
Manzil, K-153, Shivalik Nagar, Haridwar, Uttarakhand
B-1004
03.11.2014
NA
30,49,200
9,43,026
30
21
Neelam Gupta
Ajay Kr. Gupta
58
Mohalla Afgan, Station Rd., Dhampur, Bijnour, UP
B-505
NA
10.02.2013
28,14,075
8,72,148
30
22
Rashmi Agarwal
Pankaj Agarwal
45
H.No. 120, Mohalla Afgan, Station Rd.,
D-1002
NA
04.03.2014
33,50,950
10,37,245
30
23
Pulkit Agarwal
S.N. Agarwal
31
63, Pkt. E, Mayur Vihar, Ph-2, Delhi
B-1405 Shifted to C-1004
25.05.2015
NA
25,00,000
09,03,063
30
24
Sangeeta Gupta
Prem Chand
49
3/30, G.B. Pant Road, Opposite-Saurabh Hotel, Haldwani, Uttarakhand
B-303 shifted to A-707
NA
16.05.2013
28,14,075
08,72,180
30
25
A.C.R. Das
Late Sh. R.K.R. Das
65
A-38, ramprasth Colony, Chandra Nagar, Ghaziabad, UP
B1/E-206
NA
19.10.2013
29,62,780
07,63,582
30
26
Kanika Gupta
Manoj Gupta
48
Avtar Filing Station, Noorpur Road, Jaitra, Dhampur, Bijnour, UP
D-704
NA
10.02.2013
32,40,125
10,04,079
30
27
Pradeep Kumar Gupta
Late Sh. Raj Kr. Gupta
58
Mohalla Lohiyan, Near Saraswati Vidya Mandir School, Dhampur, Bijnour, UP
C-704
NA
07.02.2013
27,89,325
08,64,356
30
28
Praveen Kumar
R.S. Goyal
36
550, Kailash Nagar, Gali No. 14, Gandi Chowk, Ghaziabad, UP
D-601
NA
05.04.2013
33,55,125
4,36,857
30
29
Sachin Kumar
Suresh Kumar
32
431, Batra Colony, Panipat, Haryana-132103
D-602
NA
05.04.2013
32,97,625
5,28,690
30
So far as the other three newly impleaded complainants are concerned, which were impleaded vide order dated 30.08.2022 the details of the payments made are as follows:
Name
Unit No.
Date of BBA/ Application
Total Consideration
Amount Paid
Shrichand Singh
B1-106
19.03.2014
29,40,510
4,54,706
Vivek Tyagi
A-308
12.09.2013
31,07,320
4,87,305
Manju Shukla
D-202
19.10.2013
34,40,650
10,65,014
It is evident from the order sheet that Impleadment Application No. 4583 of 2022 was allowed vide order sheet dated 30.08.2022 and the amended memo of parties with the three newly impleaded persons was allowed. The said order is extracted hereunder:
I.A. No.4583 of 2022 has been filed for impleadment of Parties. The Application under Section 12 (1) (c) was allowed on 07.02.2019. The Application for impleadment is allowed. Let the Applicants-Shrichand Singh, Sh. Biresh Chand and Ms.Manju Shukla be impleaded as Co-complainants. Amended Memo of Parties be filed, within two weeks, if not already filed.
As prayed by Ms.Pooja Kapur, learned Counsel appearing for the Opposite Party No.2, Evidence by way of Affidavit be filed, within four weeks.
List for Final Hearing on 28.12.2022 before the appropriate Bench as per Roster.
In the meanwhile, learned Counsel for the Parties may file Written Submissions after exchanging them.
In the said order an inadvertent error has crept in by showing the name of the second applicant as Biresh Chand in place of Vivek Tyagi. The mistake is rectified accordingly.
After hearing the learned counsel for the complainants, the following order was passed on 29.12.2023:
Heard learned counsel for the complainants.
The complainants have come forward seeking refund of the amounts that have been deposited by the flat buyers in this complaint, which is a class action.
Initially 29 complainants came up with this complaint and a chart indicating the status of their payments and other conditions under the builder buyer agreement are not record. The complainant no. 1, Renu Chauhan entered into a builder buyer agreement on 22.03.2013. This agreement is on record at page 52 and it is urged that similar agreements have been entered into with all the flat buyers who have joined in this complaint. The period prescribed under the said agreement for delivery of possession is 30 months. The project is known as Ozone Classic consisting of 7 towers of 24 floors each.
The pleadings prima facie indicate that the said project proceeded with the promises as have been referred to in the complaint but during the pendency of the complaint, the opposite party no. 2, Ghaziabad Development Authority (GDA) seems to have taken steps for accepting certain conversions and bringing about changes in the lay out plan including the introduction of green belt area and cancellation of the earlier plan dated 01.03.2014. On 16.01.2019 a fresh map is said to have been sanctioned on 26.02.2019. Learned counsel for the complainant submits that this has completely altered the original offer made by the opposite party no. 1 and hence the complainants are claiming refund as none of the conditions which are now sought to be imposed during the interregnum period, are unacceptable to them.
Prima facie therefore the bone of contention is as to whether the complainants can be compelled to endlessly wait for something which was promised to them and which is now according to the complainants said to be altered by certain interventions as pointed out hereinabove. The reply submitted by the opposite party no. 1 in paragraph 11 states about these alterations, and in paragraph 4 of the reply submitted by the opposite party no. 2 Ghaziabad Development Authority, the cancellation of the earlier map and the subsequent sanction has been mentioned.
It is in this background that the complainants have come up for full refund. Pleadings have been exchanged between the parties. Learned counsel for the opposite party no. 1 had prayed for an adjournment.
Let the matter come up on 11.03.2024 at 2 p.m.
It may be pointed out that the averments made in paragraph 4 of the reply affidavit filed by the opposite party no. 2, Ghaziabad Development Authority has been noticed and in the event the opposite party no. 1 desires to contest the said position or otherwise, it is open to it to file a reply thereto by the next date fixed. No further time shall be granted for the same.
It is therefore evident that the map which was sanctioned for group housing project on 01.03.2014 was cancelled on 16.01.2019 and it was sanctioned afresh on 26.02.2019. The aforesaid activities relating to the cancellation and sanction of plan clearly relate to the opposite party no. 1 with which the complainants have absolutely no concern. They were entitled to their apartments as per the agreement that is on record and has not been disputed.
Today, during the course of the arguments, learned counsel for the opposite party no. 1 has stated that 6 out of 32 complainants have settled their disputes with the opposite party no.1. Learned counsel has produced a chart mentioning the details of those six complainants, which is extracted herein under:
S. No.
Unit No.
Name
Amount Received
Remarks
Complainant No.
1.
B1-1406
Vivek Singh
515,450.00
Partial payment of Rs.1,50,000/- paid on 23/08/2016
6
2.
D-601
Praveen Kumar
436,857.00
Partial payment of Rs.1,50,000/- paid on 23/08/2016
28
3.
C-606
Mukesh Tyagi
1,199,694.00
Fully settled without interest
13
4.
C-704
Pradeep Kumar Gupta
864,356.00
Fully settled without interest
27
5.
D-1002
Rashmi Agarwal
863,625.00
Fully settled without interest
22
6.
C/SH/G/15
Sudhir Goel
804,600.00
Fully settled without interest
15
Learned counsel for the complainants has not disputed the settlement of the above named six complainants. Accordingly, these six complainants namely, Mr. Vivek Singh (complainant no. 6), Mr. Praveen Kumar (complainant no. 28), Mr. Mukesh Tyagi (complainant no. 13), Mr. Pradeep Kumar Gupta (complainant no. 27), Ms. Rashmi Agarwal (complainant no. 22) and Mr. Sudhir Goel (complainant no. 15) are not entitled to the benefit of this order.
Having considered the submissions raised and keeping in view that the various pronouncements of the Apex Court, once there is a delay established on record, the builder/ developer has to refund the amount deposited, more particularly in the present case, where the only relief prayed is for refund with 24% interest.
In the given circumstances the complainants are therefore entitled for refund but in so far as interest is concerned, the Apex Court in the case of Ireo Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna & Ors. (2021) 3 SCC 241 and Experian Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor, (2022) SCC OnLine SC 416, has awarded interest @ 9% per annum. The complaint therefore is allowed with a direction to refund the entire amount deposited by the complainants, who have not settled their dispute with the opposite party, within three months from today. The refund will be of the deposit made by them together with interest @ 9% per annum to be calculated from the date of respective deposits made by the Complainants. The interest shall be payable till the date of actual payment as directed above. In the event of default the rate of interest shall stands enhanced to 12%. This order is against the opposite party no. 1 in the terms aforesaid.
Coming to the compensation part it is evident that all the bookings were made way back in the year 2013. The cancellation of the map and the scrapping of the project has taken place in the year 2019. The complainants therefore had to wait for six long years and were compelled to file this complaint in the year 2018 seeking refund in the above background. As already indicated above there is no default of the complainants and therefore they are also entitled to compensation, which is hereby directed to be at the rate of Rs.2,00,000/- to each of the complainants. All the complainants will be entitled to receive the costs of litigation at the rate of Rs.10,000/-. The aforesaid amount shall also be paid within three months or shall carry interest @ 12% on default.