Satish Kumar Chawla & Anr vs M/s Vatika Limited

Subhash Chandra, Presiding Member

This is a complaint under Section 21 (a) (i) of the Consumer Protection Act, 1986 (in short, ‘the Act’) seeking possession of the dwelling unit alongwith delayed compensation in respect of villa booked with the Opposite Party in its project “Bellevue Residences”, being developed in Vatika India Next, Sector-82, 82A, 83, 84 & 85, Gurgaon by them.

In brief, the facts of the case are that the Complainants had booked a villa with the Opposite Party in its project “Bellevue Residences”, being developed in Vatika India Next, Sector-82, 82A, 83, 84 & 85, Gurgaon, Haryana, vide application form dated 07.08.2008. After a period of two years , a Builder Buyer Agreement (BBA) was executed on 13.10.2010 and the Complainant was allotted Unit No. 38/240/Duplex/BR in respect of the above residential unit with a built-up area of 2659 sq.ft. for a total sale consideration of Rs.1,15,42,000/- indicating that the said villa would be delivered within a period of 36 months from the date of the BBA. Under Clause 11.1 of the BBA, the promised period of handing over of possession was three years from the date of execution of the Agreement, subject to exception as given under Clauses 12.1.12.2, 12.3 and 38. The due date of possession of the Villa was 13.10.2013. The Complainants submitted that they had made a total payment of Rs.98,47,568/- till date by way of instalments. The grievance of the Complainant is that even after lapse of about three years, possession of the Villa was not given.

Subsequently, the name of the project was changed as ‘Signature 2 Villa’ vide Addendum dated 08.02.2012 wherein the Complainants were re-allotted a new Signature Villa No.5/240/Duplex/ST8 2D1-3 admeasuring about 2659 sq.ft. in lieu of old Villa No. 38/240/Duplex/BR which was signed by the Complainants. It is mentioned that all other terms and conditions of the BBA dated 13.10.2010 and consequent documentation and understandings in this regard executed between the Parties herein shall remain and hold good and valid for the Villa allotted now. It is alleged that the Opposite Party illegally extracted money from the buyers and despite delay of more than three years, the construction of the Villa was not completed.

It is averred that the Complainant received a letter dated 23.12.2016 from the Opposite Party requiring the Complainant to deposit a sum Rs.34,65,025.77 by 06.01.2017 and submit certain documents and complete other formalities. The area of the Villa was increased from 2659 sq. ft. to 3045 sq. ft. It was also mentioned in the said letter that on completion of the aforesaid formalities, the Opposite Party would hand over physical possession of the unit. The Complainant sent a letter dated 02.01.2017 stating his grievance of increase in area and the over charged amount. The Opposite Party vide Email dated 30.11.2016 informed the Complainant that the additional change was only for the increased area of Villa which had been increased to 386 sq.ft. and not for land. Alleging deficiency in service in delay in handing over possession of the unit and unfair trade practice on the part of the Opposite Party, the Complainant is before this Commission with the following prayers:-

(a) Direct the Opposite Party to handover the possession of the villa/apartment complete in all respect to the complainants immediately alongwith occupancy certificate.

(b) Grant compensation for the period of delay in form of interest @ 12% p.a. for the period of delay.

(c) Reverse the demand for increase in super area and waive the excess amount charged by the O.P apart from initial agreed consideration.

(d) Direct the O.P to pay a sum of Rs.5,00,000/- (Rs. Five lakhs only) towards mental agony and harassment and towards cost of litigation to the complainants.

(e) Any other order(s) as may be deemed fit and appropriate may also kindly be passed.

The complaint was contested by the Opposite Party by filing written statement. It is contended that there has been no deficiency in service as alleged. The Opposite Party took the preliminary objection as to the maintainability of the Complaint. It was contended that the Complainant was not a consumer under the Consumer Protection Act, 1986, as they booked the flat for commercial purpose. It was mentioned that Apartment No.202, 2nd Floor, Tower/Block No.A-3, Vatika City Homes, 30A, Home Avenue, Vatika India Next, Gurgaon having super area of 1685 sq.ft. and sale price of Rs.50 lakhs was purchased by Complainant No.1 vide Apartment Buyers Agreement dated 08.09.2009 and the Complainant took its physical possession from the Opposite Party on 11.09.2015 and thereafter on 07.02.2016 resold it at substantial profit. Further, Complainant No.1 booked another three bedroom Apartment in the same Vatika City Homes of the Opposite Party having super area of 1468 sq.ft. at BSP of Rs.40 lakhs vide his application dated 29.07.2008 by paying a sum of Rs.6 lakhs. Having run out of money, he cancelled the said booking and requested to transfer the said amount of Rs.6 lakhs towards the instalment of the suit Villa. The Complainants had suppressed the material facts and, therefore, the Complaint needs to be dismissed with costs. It is vehemently denied that the Opposite Party had committed any misconduct, offending or otherwise. The BBA was executed in accordance with the terms of the application dated 07.08.2008 and it was sent by the Opposite Party to the Complainants who had not returned the signed BBA to the Opposite Party despite several reminders. BBA was finally signed on 13.10.2010.

The Opposite Party contends that it never promised possession of the property by October, 2013 in the said BBA. The Opposite Party only contemplated to complete the construction within three years from the date of BBA subject to eventualities and force majeure circumstances. According to the Opposite Party there has been no wilful delay and that the delay which had delayed completion was for reasons beyond the control of the Opposite Party such as (i) decision of Gas Authority Of India Ltd. to lay down its pipeline within its project forcing it to file a writ petition in Punjab & Haryana High Court; (ii) long time taken by HUDA to acquire land for laying its 75 & 60 mtrs wide sector roads connecting the project and the matter getting embroiled in litigation between HUDA and land owners; (iii) shortage of labour; and (iv) delay in supply of stone aggregate and sand due to the orders passed by the Hon’ble Supreme Court & High Court of Punjab & Haryana, etc. It is contended that the Complainants themselves had committed defaults and delays in paying the instalments in time and had not paid the balance sale consideration demanded on 23.12.2016 nor completed other formalities to take possession thereof despite reminders from the Opposite Party. They were seeking extensions in time for paying the instalments vide letter dated 14.05.2014. Vide their application dated 07.08.2008, a duplex villa was to be constructed by the Opposite Party on a plot of 240 sq.yards having proposed super built up area of 2868 sq.ft. with a BSP of Rs.1,49,05,000/- under Home Loan Linked Payment Plan under which the Complainants were required to pay 20% within 90 days, 70% though home loan and balance 10% on offer of possession. The Complainant subsequently failed to raise a home loan and sent a letter dated 03.03.2012 for change of payment plan from Home Loan to Construction Linked Plan and he was allotted Villa No.5 having built up area of 2659 sq.ft. at BSP of Rs.97,73,000/- plus other charges and deposits. This Villa was to be handed over on 13.10.2013.

The Complainants had admitted the ‘tentative’ built-up area of the Villa which was ‘subject to change till the construction’ completed as mentioned in Clause 1.3 of the BBA and had agreed for payment or refund in case of increase or decrease therein, as the case may be. There was no delay in offering possession in terms of BBA. The revised BSP of the Villa is Rs.1,19,50,990/- based upon its super built up area of 3045 sq.ft. Due to increase in area, cost of the villa had increased and a demand of Rs.34,65,025.77 was made in letter dated 23.12.2016. Further, the Complainants had not suffered any financial loss on account of loss of rental value or by paying EMIs since there was neither a home loan in respect of the suit property/villa nor had the Complainant declared details in respect thereof. Accordingly, it was prayed that the Complaint be dismissed with costs.

Parties led their evidence and filed written arguments. We have heard the Learned Counsel for both the Parties and considered the material on record carefully.

The preliminary objections of the Opposite Party have been considered. On merits, it is contended that the complainant is not a “consumer” as per Section 2 (1) (d) of the Act and that the Villa in question has been booked for speculative purposes. The onus of proving that the complainant is not a consumer lies upon the opposite party as held by this Commission in the case of Kavita Ahuja Vs. Shipra Estates I (2016) CPJ 31, which the opposite party has failed to do so. There is no merit in the contention of the Opposite party that Complainant is not a consumer as per the Consumer Protection Act, 1986. It is just another routine, technical objection raised in the reply. Hence this contention cannot be accepted.

The Opposite Party further contended that in the BBA, it never promised possession of the property by October, 2013. The Opposite Party only contemplated to complete the construction within three years from the date of BBA subject to eventualities and force majeure circumstances. According to the Opposite Party there has been no wilful delay and that the delay which had delayed completion was for reasons beyond the control of the Opposite Party. From the BBA, it is apparent that the Opposite Party had undertaken to complete the project within a period of three years. Its contention that it was only contemplated is incorrect as the Agreement is clear. He has filed the Haryana Building Code, 2017. Reliance is also placed by the Learned Counsel for the Opposite Party on this Commission’s order in Pushpa Gogia Vs. Emaar MGF Land Ltd. decided on 22.08.2022.

On the other hand, Learned Counsel for the Complainant has alleged deficiency in service for the delay in handing over possession of the unit and unfair trade practice on the part of the Opposite Party. Reliance is placed on the orders of this Commission in Pawan Gupta Vs. Experion Developers Pvt. Ltd. passed in Consumer Complaint Nos.285 & 286 of 2018 decided on 26.08.2020, Dushyant Sood Vs. M/s Vatika Ltd. in Consumer Complaint No.1848 of 2017 dated 28.09.2021 and Himanshu Dewan & Ors. Vs. Experion Developers Pvt. Ltd. passed in Consumer Complaint No.34 of 2022 dated 16.01.2023.

From the foregoing, it is manifest that the Opposite Party failed to hand over possession of the Villa in question to the Complainant as per the Agreement. As per BBA, the construction period was 36 months. Reckoned from 13.10.2010 the date of the Agreement/BBA, the offer of possession was to be made on 13.10.2013. This has been done on 23.12.2016 based on Occupancy Certificate dated 19.11.2018. The contention of the Opposite Party that the Complainant was a defaulter and, therefore, not entitled to refund cannot be accepted in view of the judgement of this Commission in Ankur Goswami Vs. Supertech Ltd. and Anr., (2017), Online NCDRC 1240 (CC no.930 of 2016) decided on 13.07.2017 that having not cancelled the allotment on account of the delay in making payment, the Opposite Party cannot now deny refund of the amount paid to it by the Complainant on account of the delay. In Pioneer Urban Land and Infrastructure Ltd. Vs. Govindan Raghavan and Connected matter II (2019) CPJ 34 SCC decided on 02.04.2019 and Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra – II (2019) CPJ 29 SC, decided on 25.03.2019, the Hon’ble Supreme Court has upheld the right of the allottee to seek the relief of refund in case the builder fails to fulfil his contractual obligation to obtain the Occupancy Certificate and offer possession within the time stipulated in the Agreement or a reasonable time thereafter. In the present case, the Opposite Party offered offer of possession on 23.12.2016 based on Occupancy Certificate dated 19.11.2018. As per the ratio laid down by the Hon’ble Supreme Court in Ireo Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna and Ors. in Civil Appeal No. 5785 of 2019 decided on 11.01.2021 since occupancy certificate has been received on 19.11.2018 and an offer of possession made, the Complainant is obligated to accept possession although he would be entitled to delay compensation. The Hon’ble Supreme Court in Wg. Comdr. Arifur Rahman Khan Vs. DLF Southern Themes Pvt. Ltd. (2020 16 SCC 512) and DLF Home Developers Ltd. Vs. Capital Greens Flat Buyers Association (2021) 5 SCC 537 has held that 6% interest per annum from the date of promised possession till the date of offer of possession would be appropriate compensation for delayed possession. The Complainant is, therefore, entitled to seek possession with delayed compensation. In the instant case, the offer of possession of 23.12.2016 cannot be held to be valid since the occupation certificate is dated 19.11.2018 and cannot pre date the occupancy certificate. However, the area of the Villa allotted was tentative and subject to its finalization on completion. The Opposite Party is justified in seeking payment for the additional carpet area of 386 sq.ft.

For the reasons stated above, the Complaint is found to have merits and is liable to succeed. The Complaint is accordingly allowed in part with the following directions:

(i) Opposite Party shall hand over possession of the Villa to the Complainant subject to the Complainant making the payment of the final instalment of the sale consideration and after adjustment of compensation due to the Complainant by the Opposite Party till the date of offer of possession and to execute the necessary sale deed and conveyance deed within two months of this order;

(ii)  The Opposite Party is also directed to pay 6% p.a. interest on the amount deposited by the Complainant from the due date of possession till 19.11.2018, the date of offer of the receipt of the occupation certificate;

(iii) Opposite Party shall pay Rs.50,000/- as cost of litigation to the Complainant.