Rishab Jain vs Raheja Developers Limited

Heard Mr. Kapil Kher, Advocate, for the complainant and Mr. Sukumar Pattjoshi, Sr. Advocate, assisted by Mr. Siddharth Banthia, Advocate, for the opposite party.

Rishab Jain has filed above complaint, for directing the opposite party to (i) refund Rs.8654483/-, with interest @18% per annum from the date of respective deposit till the date of refund; (ii) pay Rs.500000/-, as compensation for mental agony and harassment; (iii) pay Rs.200000/-, as litigation costs; and (iv) any other relief which is deemed fit and proper in the facts of the case.

The complainant stated that Raheja Developers Limited (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. The opposite party launched a group housing project, in the name of “Raheja Revanta” at Sector-78, Gurgaon, in the year, 2011 and made wide publicity of its amenities and facilities. Believing upon the representations of the opposite party, the complainant booked an independent floor and deposited booking amount of Rs.1113345/- on 18.11.2011. The opposite party allotted Unit No.IF40-02 “Tapas”, admeasuring 2372.45 sq.ft. total consideration of Rs.10853959/- vide Allotment Letter on 14.06.2012 and executed Agreement to Sell on 14.06.2012, in favour of the complainant. Annexure-A of the agreement contained payment plan as “construction link payment plan”. Article-4.2 of the agreement provides 36 months period from the date of execution of the agreement with grace period of six months for delivery of possession. The opposite party, vide an addendum agreement dated 28.04.2014, allotted Unit No.IF18-02. As per demand, the complainant deposited Rs.8654483/- till December, 2015. The opposite party was raising demand of the instalments without attaining the stage of construction for which demand used to be raised. The period of 36 months expired on 14.06.2015 and grace period of six months expired on 14.09.2015. The complainant vide email dated 16.07.2018, requested for handing over possession but the opposite party did not respond. The complainant gave a legal notice dated 01.04.2019, calling upon the opposite party to handover possession within one month. In spite of service of legal notice, the opposite party did not respond. Then this complaint was filed on 20.06.2019, alleging deficiency in service.

The opposite party filed its written reply on 28.08.2019, in which, booking of the floor, allotment of the floor, execution of agreement and the deposits made by the complainant, have not been disputed. The opposite party stated that the construction was delayed for force majeure reasons and liable to be condoned under clause-4.4 of the agreement. Several home buyers of the project, including the complainant committed default in payment of instalment, which created paucity of the fund. The complainant always delayed payment of the instalment and around an amount of interest of Rs.4.5 lacs for delayed payment was waived by the opposite party. High Tension Electricity line was passing through middle of the project land. DHVBNL took unreasonable time in making it underground. The contractor engaged by the opposite party created dispute. Acquisition of the land of Dwarka Expressway got entangled into litigation. Although 10 years expired but HUDA failed to provide basic infrastructure facilities such as road, sewer line, water line and electricity supply although EDC & IDC etc. have been deposited by the opposite party and several other builders of the locality. The opposite party, vide letter dated 26.02.2017, informed all the buyers about tentative date for completion of the project. Slow pace of construction was due to non-availability of basic infrastructure. The construction of the project is at advance stage. The opposite party is making all efforts to complete the construction at the earliest. Article 4.2 provides for delay compensation and the interest of the complainant is secured. The agreement provides for arbitration in case of any dispute and the complaint is not maintainable. Haryana Real Estate Regulatory and Development Authority (HRERA) has been notified under Real Estate (Regulation and Development) Act, 2016, which is a special enactment on the subject. The complainant can file complaint before the HRERA and this complaint is not maintainable. The complainant already owned a house and this floor was booked for commercial purposes and the complainant is not a consumer. The complaint has no merit and liable to be dismissed.

The complainant filed Rejoinder Reply, Affidavit of Evidence of Rishab Jain and documentary evidence. The opposite party filed Affidavit of Evidence of Varun Rawat and documentary evidence. The opposite party, filed a copies of Writ Petition (C) No. 609 of 2023, filed by it, for directing Haryana Urban Development Authority to provide external infrastructures viz, sector roads, electricity distribution system, water supply, sewage line etc. and to provide essential civil amenities to the project “Raheja Revanta” and the order of Punjab and Haryana High Court dated 12.01.2023, directing the respondents to file reply. The opposite party filed IA/7254/2023, for impleading Haryana Urban Development Authority and Gurugram Municipal Development Authority as the opposite parties in the complaint. Both the parties have filed their written synopsis.

We have considered the arguments of the parties and examined the record. The opposite party has filed IA/7254/2023, for impleading Haryana Urban Development Authority and Gurugram Municipal Development Authority as the opposite parties in the complaint. There is no privity of contract between the complainant and Haryana Urban Development Authority and Gurugram Municipal Development Authority. Scope of consumer dispute cannot be enhanced. IA/7254/2023 is rejected.

Article-4.2 of the agreement provides 36 months period from the date of execution of the agreement with grace period of six months for delivery of possession. The period of 36 months expired on 14.06.2015 and grace period of six months expired on 14.09.2015. Annexure-A of the agreement provides “construction link payment plan”. As per demand, the complainant deposited Rs.8654483/- till December, 2015. From Writ Petition (C) No. 609 of 2023, filed by the opposite party, it is proved that none of the basic amenities, necessary for habitation are available to the project. About 8 years have expired from due date of possession and there is no hope that the project would be ready for habitation in near future. Supreme Court in Fortune Infrastructure Vs. Trevor D’ Limba, (2018) 5 SCC 442, Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, (2019) 5 SCC 725, Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, 2019 (6) SCALE 462, held that the home buyer cannot be made to wait for possession for an unlimited period.

Relying upon Section 14 (1) (d) of Consumer Protection Act, 1986 as well as judgments in Consumer Utility & Trust Society Jaipur vs. Chairman & Managing Director, Bank of Baroda, Calcutta and Anr. (1995) 2 SCC 150; Branch Manager Indigo Airlines vs. Kalpana Rani- MANU/SC/0095/2020; Ishwar Rawat vs. HUDAMANU/CF/0142/2008; BB Patel vs. DLF Universal Limited- SC Civil Appeal No.1106 of 2009 dated 25.01.2002; Jagad Bandhu Chatterjee vs. Nilima Rani- SCMANU/SC/0490/1969 and Raheja Developers Limited vs. State of Haryana by Punjab & Haryana High Court, dated 12.01.2023, the counsel for the opposite party submitted that the opposite party has not committed any negligence, therefore, opposite party is not liable to pay any compensation. The argument of the counsel for the opposite party is not liable to be accepted. The opposite party advertised the project as most iconic project and induced the home buyers to purchase a house in it. The project was advertised in the year 2011 and for about 12 years the opposite party did not bother for the basic amenities which are necessary for habitation. It is only in the year 2023 the opposite party has filed a writ for issue of mandamus directing the government authorities to develop the basic infrastructure. By that time, the opposite party has collected more than 90% of consideration from the buyers. This is not only negligence but a gross negligence. In view of the fact that till today the opposite party has not been able to complete the project nor obtained occupation certificate nor there has been any basic amenities for habitation, the relief is liable to be moulded and relief of refund as prayed during argument is liable to be granted. Supreme Court in Experion Developers Pvt. Ltd. vs. Sushma Ashok Shiroor (2002) SCC Online SC 416 held that in case of refund, interest @9% per annum is a just compensation.

The counsel for the opposite party orally requested that the opposite party be permitted to refund the amount in 9 equal monthly instalments.

ORDER

In view of aforesaid discussions, the complaints are partly allowed with cost of Rs.50000/-. The opposite party is directed to refund entire amount deposited by the complainant with interest @ 9% per annum from date of respective deposit till the date of refund.

The entire decretal amount shall be paid in nine equal monthly instalments, starting from 25.11.2023 till the date of payment. Interest shall carry on till the last payment. If there is default in payment of any instalment, it is open for the complainant to file execution application.