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Judgment
Ram Surat Ram Maurya, Presiding Member
Heard Mr. Pardeep Dhingra, Advocate, for the complainants and Mr. Manu Tiwari, Advocate, for the opposite party.
The complainants have filed the present complaint for directing the opposite party to (i) complete the construction of the project and handover the possession to all the flat buyers within such time as the Hon’ble Commission may deem fit; (i) in the event the OP fails to handover the possession within the stipulated time, refund the monies to the flat buyers who opt for refund alongwith interest @ 24% per annum from the date of payment instalments till the date of payment; (ii) declare that clause 25 of the agreement is an act of restrictive trade practice and OP to pay compensation to the buyers for delay in handing over possession in the form of interest @ 24% p.a. from the date of booking till the date of possession; (iii) declare that the service tax charged by OP on 100% value of the components of total sale consideration as illegal and direct the OP to charge the same on such components of total sale consideration by applying the applicable rule of abatement and refund the excess service charge, if any, collected from the flat buyers; (iv) pay additional compensation of Rs.10 lakh per flat buyer for illegally changing the layout of the project by removing the tennis courts in place of shops and removing the opening of aqua canal in place of a new residential tower thereby increasing the overall density of the project; (v) transfer to the flat buyers free from all encumbrances, mortgages, charges or liens on the project land; (vi) restrain the OP from demanding any other charges which are not in accordance with the FAA; (vii) pay compensation of Rs.5 lakhs to each flat buyers for mental agony and harassment; and (ix) costs.
The opposite party launched a group housing project “Gardenia Aims Glory” situated a plot No.GH-001, Sector-46, Noida. The booking was started in 2009 and it was represented that the project would be completed latest by October, 2012. Being lured by the representation of the opposite party, the complainants booked their respective flats. The project comprised of 20 towers. The flat buyers also signed the respective agreements, clause 25 whereof provided that the possession would be handed over by October, 2012 with a grace period of 3 months but there was a delay of about one year in commencement of construction work. The opposite party offered possession of Towers A1, B1, A2, A3, B2 & B4 in July, 2015 after expiry of 3 years and that too without there being electricity and water connection. The buyers who were allotted the flat in the year 2012 were promised that the possession would be delivered in March, 2014 with a grace period of 3 months. The opposite party kept on revising the date of possession from 2012 to 2014, then 2016 and 2017. Clause 25 of the agreement provided that the opposite party would pay delayed compensation of Rs.5 per sq. ft. per month. On the other hand, clause 17 provided that in case of delay in making the payment by the flat buyers, the opposite party would charge 18% interest. The opposite party has illegally charged service tax on full value of the flat including landscaping, power back up, firefighting, electricity charges etc. whereas the service tax was chargeable only on the basic price of the flat. The opposite party started booking of the flats by showing the building plan of 2009. Thereafter, the layout plan was arbitrarily changed without intimation and consent of the complainants. By changing the layout plan, the opposite party removed the tennis court and constructed the shops. In the original layout plan, there was provision of aqua canal but in the revised layout plan the opposite party removed the aqua canal and constructed a new tower in its place. The opposite party has received 95% of the sale consideration from the flat buyers, still they have mortgaged the land and building of the project with a consortium of banks led by Oriental Bank of Commerce and have taken a loan of Rs.150 crores, which shows that the opposite party has diverted the funds of the project. The loan is still outstanding and the land as well as the building is still mortgaged with the consortium. Alleging deficiency in service and unfair trade practice on the part of the opposite party, the complainants filed the present complaint under Section 12 (1) (c) of the Consumer Protection Act, 1986, on behalf of the allottees of residential flats in the project “Gardenia Aims Glory”, Sector 46, Noida. This Commission, vide order dated 30.07.2018, allowed the application under Section 12 (1) (c) and issued notice vide publication under Section 13 (6) of the Act.
The opposite party filed written version on 11.06.2018 and contested the complaint. The opposite party stated that the land on which project was to be constructed was allotted in the name of the opposite party by NOIDA Authority, vide lease deed dated 26.10.2009. Later on it was noticed that the area of the land was less. Therefore, a supplementary lease deed was executed on 17.02.2010. The opposite party was constructing the project as per schedule. However, the construction got delayed due to the reasons beyond the control of the opposite party such as agitation by the farmers; land dispute with the School; restriction imposed by National Green Tribunal; labour strike; and increase in the construction cost. The allottees also defaulted in making payments. It is submitted that the construction industry is facing recession in the past few years. The opposite party has completed the flats in question and applied for part completion certificate. Even the opposite party has issued final demand cum offer of possession to the allottees. The opposite party will adjust the delayed compensation at the time of handing over of possession. The opposite party has obtained necessary NOC from the fire department and also approval for the lift. Water and electricity connections have also been obtained. The opposite party also tried to settle the dispute amicably but the same could not be worked out due to unfair and illegal demands of the complainants. The allottees are neither paying the dues nor taking possession of the respective flats. The opposite party also raised the preliminary objection of maintainability stating that the complainants are investors and purchased the flats for commercial purpose. Some of the allottees have requested the opposite party to transfer their flats to some other purchaser on higher rate and in some cases the original allottees have transferred their flats to a third party through the opposite party. Further, as there is no commonality of interest among the complainants, the complaint does not fall within the purview of Section 12 (1) (c) of the Consumer Protection Act, 1986. The complaint is not maintainable and is liable to be dismissed.
The complainants filed rejoinder to the reply filed by the opposite party reiterating the averments made in the complaint.
Counsel for the complainants submitted that the allottees who had opted for down payment plan had paid 95% of the consideration amount within 45 days from the date of booking and the balance 5% was payable at the time of possession. The complainants have paid their hard-earned money to the opposite party in the hope of getting a residential flat. As per terms & conditions of the agreement, possession was to be delivered by October, 2012 with a grace period of three months i.e. latest by January, 2013. The opposite party offered possession of Towers A1, B1, A2, A3, B2 & B4 without completing the construction and without there being basic amenities like water and electricity. As the opposite party failed to handover possession within the stipulated period, the complainants were forced to file the instant complaint. The complainants are entitled for refund of the deposited amount with interest @ 24% per annum from the date of deposit till the date of realization.
Counsel for the opposite party submitted that many of the flat allottees failed to make payment in time as per schedule. They cannot take benefit of their own wrong. The opposite party made every effort to complete the project and handover possession in time. However, the delay caused was beyond the control of the opposite party. Therefore, the opposite party cannot be burdened for delay in completing the project due to the reasons beyond their control. Learned counsel submitted that the complaint does not fulfil the parameters of Section 12 (1) (c) of the Consumer Protection Act, 1986 as there is no commonality of interest among the complainants. Some of the allottees have settled the matter amicably with the opposite party. The complainants are not consumers as they have booked the flats for commercial purpose.
We have considered the arguments of counsel for the parties. Booking of the flats; deposit of the respective amount by the complainants is not disputed by the opposite party. Delay in handing over possession is also admitted by the opposite party. In the written statement, the opposite party stated that they have applied for completion certificate/occupancy certificate and the same is awaited. In the complaint, it is prayed that the opposite party may be directed to complete the construction of the project and handover the possession to all the flat buyers within such time as the Hon’ble Commission may deem fit and in case the opposite party fails to handover the possession within the stipulated time, it may be directed to refund the amount with interest @ 24% p.a. However, during the course of arguments, counsel for the complainants submitted, that the opposite party may be directed to refund the amount with interest. Supreme Court in Fortune Infrastructure & Anr. v. Trevor D’Lima & Ors., (2018) 5 SCC 442, held that a person cannot be made to wait indefinitely for possession of the flat allotted to him/her, and is entitled to seek refund of the amount paid by him, along with compensation. As far as argument of the opposite party that the complainants are not consumers as they have booked the flats for commercial purpose is concerned, Supreme Court in Kavita Ahuja vs. Shipra Estates I (2016) CPJ 31, observed that the onus of establishing that the Complainant was dealing in real estate i.e. in the purchase and sale of plots/flats in his normal course of business to earn profits, shifts to the Opposite Party, which the Opposite Party has failed to discharge by filing any evidence. So far as argument that the complaint does not fall under Section 12 (1) (c) of the Consumer Protection Act, 1986 is concerned, this issue has already been decided by this Commission, vide order dated 30.07.2018. Therefore, the complainants are entitled for refund of the amount deposited by them with interest @ 9% p.a.
ORDER
In view of aforesaid discussions, the complaint is partly allowed. The opposite party is directed to refund entire amount deposited by the complainants with interest @9% per annum from the date of respective deposit till the date of refund within a period of two month from this judgment.
However, the other allotees who are interested in taking possession of the flat may seek appropriate remedy in accordance with law.