Sunil Kohli & Anr vs M/s Purearth Infrastructure Ltd

Heard Mr. Navdeep Singh, Advocate for the complainants and Mr. Aman Gupta and Mr. Gaurav Mitra, Advocates for the opposite party.

Sunil Kohli and Mrs. Menakshi Kohli (the complainants) filed this complaint for directing M/s. Purearth Infrastructure Limited (the opposite party), (hereinafter referred to as the builder) (i) to pay Rs.11130501/- towards compensation, (ii) to give possession and confer title of the shop booked by the complainants, (iii) to account for or return Rs.285131/- with interest @ 18% per annum, in case the said money has not been accounted for or not paid for construction of fly over, (iv) to pay Rs.2000000/- as compensation, for financial loss, mental and physical agony (v) to pay Rs.3/- lacs as cost of the litigation and (iv) any other relief which may be deemed fit and proper, in the circumstances of the case, be passed. At the time of arguments, the relief for return of money deposited by the complainants along with interest and compensation was pressed.

The facts as stated in the complaint and emerged from the documents attached with it are that the builder was a company, engaged in the business of development and construction of residential and commercial buildings and selling its unit to the prospective buyers. The builders launched a project of commercial complex in the name of "Central Square" at Bara Hindu Rao, Delhi, in August, 2007. The complainants were NRI. They decided to open a lingerie store, in the brand name of "Change", in order to earn their livelihood. On coming to know about the project, Sunil Kohli and his brother Sudhir Kohli met Akhil Singh, Assistant Manager (Sales & Marketing) and Aditya Wadhera, Vice-President of the builder, who informed that Shop No. P-3-115, Plaza III, Central Square had been constructed but not finished and had to be sold and possession of the shop, complete in all respects, was likely to be given by end of the year 2007 or beginning of 2008. Looking at the location of the said shop, the complainants booked the said shop, admeasuring super area 1095 sq. ft., at the rate of Rs.9900/- per sq. ft., sale price of Rs.10840500/-, on 08.08.2007 and paid 20% of sale price i.e. Rs.2168100/-. The complainants deposited Rs.2168100/- on 05.09.2007, Rs.2168100/- on 04.10.2007, Rs.1355063/- on 02.11.2007, Rs.813038/- on 06.12.2007 and Rs.813037/- on 08.03.2008, in response to the demand letters issued by the builder. In March, 2008, the builder supplied copies of the Agreement and asked to sign it and return, which were signed by the complainants and returned vide letter dated 10.03.2008, which was duly acknowledged. On inquiry about possession, they informed that possession was likely to be given in July, 2008. The builder issued demand notice dated 04.07.2007, demanding Rs.813037/- and informing that project was completed and finishing works viz façade, flooring, glass work and services were nearing completion. The complainants deposited Rs.813037/- on 19.07.2008. In July, 2009, the builder issued last demand notice for Rs.542025/-, which was deposited on 09.07.2009. The complainants also deposited Rs.290000/- on 09.07.2009, towards parking charges. By that time the complainants paid total Rs.11130501/- as against total sale price of Rs.10840500/- but possession was not given. The complainants, vide email dated 18.06.2009, made queries about the status of the project and delivery of possession. The builder, vide emails dated 20.06.2009 and 03.07.2009, informed that construction was completed but completion certificate was awaited. Vide email dated 03.07.2009, they informed that they had appointed M/s. Jones Land Laselle Meghraj as Facility Manager, who had taken over since 01.05.2009 to assist during fit-out period as well as smooth operation and maintenance of all services, in plaza-3. It was also mentioned that they were going to deposit Rs.18/- crores with New Delhi Power Limited for installation of 33 KV sub-station for the project. The complainants, vide email dated 16.09.2009, made query about possession; then again it was informed that completion certificate was awaited. On 24.03.2010, the builder informed for fit-out possession. The complainants talked to Akhil Singh, who informed on phone on 13.10.2010 that he had left the company and in his place one Sajeev Basudevan was appointed. Sajeev Basudevan informed on phone that completion certificate was obtained. Complainant-1 asked his brother to contact the office of the builder and fix a date for possession and execution of conveyance deed. On inquiry, Ms. Monisha and Ms. Alka asked for a written request for registration and possession. The complainants planned to come to Delhi on 13.11.2010. In the meantime, they received an email dated 09.11.2010, informing that registration may take one month. The complainants, through email dated 10.11.2010, raised their protest for shifting date of possession again and again from July 2008. Mr. Sanjeev Basudevan, through email dated 28.01.2011, demanded MCD charges. The builder, through letter dated 29.07.2011, informed that Vidhanharta Estates (P) Ltd. would facilitate in conversion of land use from flatted factory to commercial, leasing of the plaza by zoning out different segments of plaza-3 and day to day operations of the tenants including collection of CAM charges, Electricity usage, collection of rent and its distribution. The complainants, through email dated 15.05.2012 protested to the aforesaid demand of conversion charges and CAM charges. The builder, through email dated 17.05.2012, informed that super area had increased to 1127 sq. ft. Maintenance charges of Rs.101430/- and conversion charges had to be paid. The builder issued letter under the head of "Offer of Possession" dated 26.06.2012 and demanded Rs.1956252/- on different heads. The complainants deposited Rs.330121/-, Rs.101430/-, Rs.111700/- and Rs.558000/- on 23.07.2012 and protested the demand of Rs.847779/- towards conversion charges. The complainants deposited Rs.285131/- for construction of flyover as demanded. Even after issue of "Offer of Possession" letter dated 26.06.2012 and deposit of money as demanded in it (except conversion charges), possession was not given nor conveyance deed was executed. On these allegations, this complaint was filed on 15.05.2013.

The builder contested the complaint and filed its written reply on 13.11.2013, in which, material facts have not been denied. It has been stated that the complainants had booked the shop for investment purposes and as such, they were not consumers, within the meaning of Consumer Protection Act, 1986. The construction of the Block, in which shop in dispute was situated, was completed and the builder had applied for issue of "Completion Certificate", on 04.11.2008. The competent authority took unusual time in issue of "Completion Certificate", which was issued on 13.09.2010. The builder was gearing up to offer possession to the buyers but Municipal Corporation Delhi, vide letter dated 08.09.2011, revoked "Completion Certificate" and sealed the plaza. On intervention of the court, "Completion Certificate" was restored on 22.05.2012. Since then, the builder was giving possession to the buyers and executed about 170 sale deeds. The complainants were offered possession in June, 2012 but they failed to deposit the amounts demanded and take possession of the shop. At the time of booking the shop, the builder informed that the project was a flatted factory. In the agreement dated 10.03.2008, it was mentioned that the project was a flatted factory. The complainants were given rebate of 10% of sale price. Under the Government Order, the plaza can be converted as commercial purpose, paying the conversion charge, which has been informed to the buyers but the complainants were not ready to pay conversion charges. The cause of delay was beyond the control of the builder and they were not liable to pay any compensation.

The complainants filed their rejoinder reply on 21.08.2014, in which, the material facts stated in the complaint were reiterated. It has been denied that the complainant invested money in this shop, for earning profit. It has been stated that the complainants booked the shop, on the assurance given by Akhil Singh, Assistant Manager (Sales & Marketing) of the builder that possession would be delivered by the end of 2007 or by January, 2008. He explained that they had valid permission to use the plaza for commercial purpose from the competent authority at ground, first and second floor. Mr. Wadhera told that the land was "Free-hold land". The builder had realized about 80% of total sale price on the date of Agreement dated 10.03.2008. In clause-9 of the Agreement, it has been stated that the builder would endeavour to give possession within two years from the date of commencement of construction, with grace period of six months. The construction of the plaza was started in the year 2006 as such two years were completed in 2008.

The complainants filed Affidavit of Evidence of Sunil Kohli and Additional Affidavit of Evidence of Sunil Kohli and various documentary evidence. The builder filed Affidavit of Evidence of Ravi Shankar Thakur and various documentary evidence. Both the parties have filed their written arguments.

We have considered the arguments of the counsel for the parties and examined the record. The dispute between the parties is in respect of use of the plaza/shop as permissible by Municipal Corporation, Delhi. According to the complainants, they were NRI and decided to open a lingerie store, in the brand name of "Change", in order to earn their livelihood. The complainants have filed letter dated 04.08.2006, from the "Change of Scandinavia" as Annexure-C-1, to prove that they had authorisation of the "Change" in this respect. The builder gave advertisement that some shops in their Central Square Project, constructed on 23 acres of "Free-hold land" at Bara Hindu Rao, New Delhi, were available for sale. On coming to know about the project, Sunil Kohli and his brother Sudhir Kohli met Akhil Singh, Assistant Manager (Sales & Marketing) and Aditya Wadhera, Vice-President of the builder, who informed that Shop No. P-3-115, Plaza III, Central Square had been constructed but not finished and had to be sold and possession of the shop, complete in all respects, was likely to be given by end of the year 2007 or beginning of 2008. Till the supply of copy of Agreement in March, 2008, there was nothing on record that the builder had informed that the plaza was constructed on flatted factory land. On the front page of the Agreement, it was printed in big letters that "CENTRAL SQUARE, INTEGRATED BUSINESS DISTRICT". In prefatory paragraph of the Agreement, it has been mentioned that DCM Limited owns "Free-hold land" admeasuring approximately 24 acres at Bara Hindu Rao Delhi. In Second Schedule of the Agreement, "said unit shall mean flatted factory unit" has been mentioned. By the time of Agreement dated 10.03.2008, the complainants had deposited Rs.2168100/- on 08.08.2007, Rs.2168100/- on 05.09.2007, Rs.2168100/- on 04.10.2007, Rs.1355063/- on 02.11.2007, Rs.813038/- on 06.12.2007 and Rs.813037/- on 08.03.2008, in response to the demand letters issued by the builder. When the complainants inquired about flatted factory, then he was informed by the builder that they had obtained permission for running shop in the plaza. Municipal use of flatted factory land is industrial and not commercial. At the time of offer of possession, for the first time, the builder demanded charges of conversion of land use as "commercial". As such, the very purpose of booking the shop for commercial use was frustrated. The builder has therefore, committed unfair trade practice in advertising the project as INTEGRATED BUSINESS DISTRICT, and giving an understanding that they had obtained necessary permission for commercial use of the plaza.

ORDER

In view of aforementioned discussions the complaint is allowed with cost of Rs. one lakh. The builder is directed to return entire money deposited by the complainants along with interest @ 9% per annum from the date of each deposit till actual payment. Aforesaid directions be complied with within two months from the date of judgment failing which, the builder shall be liable to pay interest @ 12% per annum after expiry of two months.