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Judgment
Heard Mr. Subham Kumar Jain, Advocate, for the complainants and Mr. Tarun Singla, Advocate, for the opposite party.
Initially 9 complainants (six set of flat buyers) have filed above complaint, for directing the opposite party to (i) obtain full occupation certificate/completion certificate and handover possession of the flat complete in all respect with all the amenities, execute title deed and supply copies of all approvals/permission and other documents relating to the project, within stipulated period of six month; or in alternative (ii) refund entire amount deposited by the complainants with interest @18% per annum from the date of respective deposit till the date of payment; (iii) pay delay compensation in the form of interest @18% per annum on their deposit from due date of possession till the delivery of possession; (iv) quash demands of service tax and car parking charges and direct to refund amount realized in these heads with interest @18% per annum from the date of deposit till the date of refund; (v) pay Rs.10/- lacs, as compensation for mental agony and harassment; (vi) pay Rs.10/- lacs, as litigation costs; and (vii) any other relief which is deemed fit and proper in the facts and circumstances of the case. At present Aneesh Talukdar and Shrabani Talukdar only remained as the complainants.
The complainants filed IA/19333/2017, under Section 12(1)(c) of Consumer Protection Act, 1986, for permission to file class action complaint. Later on Smt. Suman Lata Kujur, Tarun Kaushik and Smt. Dedeshi Kaushik (complainants-1, 8 and 9) filed IA/9724/2018, for deleting their names from the complaint, which was allowed on 24.05.2018. Yashpal, Raj Karni, Nitesh Malhotra and Lalit Malhotra (complainants-2, 3, 4 and 5) filed IA2718/2021 for deleting their names from the complaint, which was allowed on 27.07.2021. IA/19333/2017 was allowed on 08.10.2018 and permission under Section 12(1)(c) of Consumer Protection Act, 1986, was granted to file class action complaint. Notice was published in newspapers but no other buyers got himself as impleaded in the complaint.
The complainants stated that 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 “The Alien Court” at GH-3/1, Tronica City, UPSIDC, Sector-C-3, Ghaziabad, in the year 2010 and made wide publicity of its facilities and amenities. Believing upon the representation of the opposite party, Aneesh Talukdar and Shrabani Talukdar (the complainants) booked an apartment on 04.10.2013 and deposited booking amount of Rs.300000/-. The opposite party allotted Apartment No. 1007, super area 1250 sq.ft., Tower Jupitar and executed Flat Buyer Agreement dated 30.12.2013, in respect of above flat, in which basic consideration of Rs.3375000/- and other charges of Rs.668750/- have been mentioned. Annexure-1-A of the agreement provides “construction link payment plan”. The complainants further deposited Rs.300000/- on 22.01.2014, Rs.100000/- on 31.01.2014, Rs.1000/- on 31.01.2014, Rs.2010000/- on 08.02.2014, Rs.220000/- on 30.03.2015, Rs.45000/- on 30.03.2015 (total Rs.2976000/-). Clause-9.1 of the agreement provides 36 months period from the date of start of construction, for delivery of possession with grace period of six months under clause-9.5. The opposite party was charging interest @18% per annum on delayed payment of instalments. The complainants took loan from Dewan Housing Finance Corporation Limited and Axis Bank for payment of consideration and they were paying EMI. The period of 42 months expired in June, 2017. But neither the construction was completed nor possession was offered. The complainants wrote an email dated 24.06.2017, inquiring about possession. The opposite party through letter dated 26.10.2017, demanded Rs.480196.08 + Rs.531000/-. The complainants visited the site on 04.11.2017 and found the construction was not near completion in near future and none of the basic amenities necessary for habitation were available. The complainants through letter dated 11.11.2017, protested the demand. This complaint was filed on 01.12.2017, alleging deficiency in service.
The opposite party did not file its written reply and evidence. The complainants filed Affidavits of Evidence of Aneesh Talukdar, Shrabani Talukdar and documentary evidence. Aneesh Talukdar, in paragraph-9 of his Affidavit of Evidence, has stated that the opposite party offered possession of the flat vide Possession Letter No.PBPL/PL/2019/184 dated 04.10.2019 and sent reminders dated 17.09.2020, 14.12.2020, 16.10.2021 and 30.04.2022. Due to unreasonable delay in possession, the complainants purchased a flat from Delhi Development Authority on 27.09.2019 and have taken possession on 11.09.2020. Their need for the flat in dispute no more remained and they claimed for refund. Both the parties have filed their written synopsis of arguments.
We have considered the arguments of the counsel for the parties and examined the record. Clause-9.1 of the agreement provides 36 months period from the date of start of construction, for delivery of possession with grace period of sixty days under clause-9.5. The date of start of construction of construction of ‘Jupiter’ tower has not been given by the complainant. Some of the demand letters in respect of ‘Jupiter’ tower were raised in the year 2011. As such 36 months is counted from the date of agreement, which completed on 30.12.2016. Possession was offered on 04.10.2019. As such there was inordinate delay in offer of possession. Under Clause-9.5 of the agreement, the buyer is entitled to claim refund of his money after 120 days after due date of possession. In the present case, due to inordinate delay, the complainants have purchased another flat from Delhi Development Authority. So far as argument of the opposite party that the complainants were defaulter is concerned, the opposite party through letter dated 26.10.2017 raised demand, which was not deposited by the complainants. The complainants protested this demand saying that the demand has been raised without achieving the milestone of the construction. In any case, the opposite party has not taken any action treating the complainants as defaulter. Supreme Court in Bangalore Development Authority Vs. Syndicate Bank, (2007) 6 SCC 711, 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 and has held that the buyer cannot be made to wait for indefinite period for possession.
ORDER
ln 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 months from this judgment.