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Judgment
Heard Mr. Swetank Shantanu, Advocate, for the complainants and Ms. Hemlata Rawat, Advocate, for the opposite parties.
Initially 10 allottees of the flat in the project “1000 Trees” have filed above complaint for directing the opposite parties to (i) refund entire amount deposited by them with interest @18% per annum from the date of respective deposit till the date of refund; (ii) pay Rs.500000/- to each, as compensation for mental agony and harassment; (iii) pay Rs.50000/- to each, as litigation costs; and (iv) any other relief which is deemed fit and proper in the facts and circumstances of the of the case.
The complainants filed IA/15097/2017, under Section 12(1)(c) of the Consumer Protection Act, 1986, for grant of permission to file complaint as a class action complaint, on behalf of numerous allottees of the project “1000 Trees”. This Commission, vide order dated 19.02.2019 allowed IA/15097/2017 and directed for publication of the notice of the complaint in two newspapers. On publication of the notice, several allottees filed applications for their impleadment time to time. At present, there are 35 complainants whereof the counsel for the complainants has provided a list, which is as under: -
S. No
Particulars of the Complainants
Date of BBA
Unit No.
Amount paid
1.
Vaibhav Kumar
19.11.2013
I-304, Block-I, 3rd Floor
Rs.23,40,032/-
2.
Priyankak Dhawan
10.12.2013
F-1003, Block-F, 10th Floor
Rs.37,42,341/-
3.
Dr. Ajay Kumar
19.12.2013
G-001, Block-G, Ground Floor
Rs.25,92,523/-
4.
Rajnikant Gupta
IA/17569/2018
11.01.2014
C-1003, Tower-C, 10th Floor
Rs.34,05,278/-
5.
Sanjeev Aggarwal
IA/17570/2018
02.05.2014
D-501, Tower-D, 5th Floor
Rs.32,79,824/-
+ 1
Sudarshan Kumar Thakur & Munni Thakur
IA/17571/2018
28.08.2014
I-1204, Tower-I, 12th Floor
Rs.25,11,121/-
7.
Brahmanand
IA/17572/2018
11.01.2014
H-504, Tower-H, 5th Floor
Rs.24,25,577/-
+1
Ravi Ranjan & Neha Deepa
IA/17573/2018
19.11.2014
I-101, Tower-I, 1st Floor
Rs.18,69,540/-
9.
Devika Bardhan
IA/17574/2018
02.05.2014
H-703, Tower-H, 7th Floor
Rs.20,35,000/-
+1
Surajit Ghosh & Amrita Ghosh
IA/18680/2018
17.01.2017
F-1204, Tower-F, 12th Floor
Rs.24,26,000/-
+2
Rakesh Kumar Sharma, Sushma Sharma & Utsav Sharma
IA/20490/2018
12.04.2014
J-703, Tower-J, 7th Floor
Rs.18,56,047/-
+1
Krishna Kumar Meha & Anil Kumar Khullar
IA/5875/2018
02.04.2014
D-1104, Tower-D, 11th Floor
Rs.41,00,760/-
13.
Manvendra Khati
IA/7564/2018
11.01.2014
I-404, Tower-I 4th Floor
Rs.23,00,000/-
14.
Puneet Goel
IA/9042/2018
23.01.2014
E-1203
Rs.41,25,708/-
15.
Sunita Gupta
IA/9044/2018
12.03.2014
E-1202
Rs.38,63,610/-
16.
Kuruvilla Parampuzha Andrews
IA/16087/2018
25.10.2023
J-804
Rs.24,25,77/-
17.
M/s Nishk Credit Services Pvt. Ltd.
IA/9370/2018
21.01.2014
G-1104
Rs.25,65,267/-
18.
Pooja Chug Ahuja
IA/9372/2018
03.12.2013
I-801
Rs.234000/-
19.
Yashu Gupa
IA/9043/2018
18.04.2015
I-402
Rs.18,67,684/-
20.
Kuldeep Sharma
IA/9045/2018
23.01.2014
G-702
Rs.29,96,930/-
21.
Brijendar Kumar
IA/9040/2018
13.03.2014
F-1203
Rs.38,60,987/-
22.
Amit Bhardwaj
IA/9041/2018
23.01.2014
F-903
Rs.36,76,477/-
23.
Vineet Kumar Garg
IA/16086/2018
19.12.2013
F901
Rs.32,96,486/-
24.
Ashish Sharma
IA/21445/2018
04.06.2013
H-1403
Rs.19,05,415/-
25.
Rakesh Chandra Nayar
IA/23046/2018
01.10.2013
E-103
Rs.18,72,503/-
26.
Biblab Karmaker
IA/17018/2018
19.11.2013
G-502
Rs.28,27,197/-
27.
Sudhanshu Bansal
IA/16085/2018
03.01.2014
E-903
Rs.36,62,236/-
28.
Sanjay Raizada
IA/17307/2019
15.11.2013
(date of application form)
H-701
Rs.22,57,000/-
29.
Sanjeev Kumar
IA/17308/2019
15.11.2013
(date of application form)
H-904
Rs.23,30,000/-
The complainants stated that M/s. 1000 Trees Housing Pvt. Ltd. (now named as ATS Meadows Private Limited) (the OP) was a company, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing project. Great Value Projects India Limited and Geoworks Realty Private Limited (OP-2 and 3) were landowner companies, who assigned development right to the OP. The OP launched the group housing project in the name of “1000 Trees” at Sector-105, Gurgaon, in the year, 2013 and made wide publicity of its amenities and facilities. Believing upon the representations of the OP, the complainants booked one flat each, in the project “1000 Trees” and deposited booking amount in the year 2013-2014. The OP allotted flats in different towers from “A” to “J” and executed “Builder Buyer Agreement” in their favour, shortly after the booking. Annexure-A of the agreement contains ‘payment plan’, as ‘construction link payment plan’. Clause-4.1 of the agreement provides 42 months period, from the date of execution of the agreement, for delivery of possession. The OP realized instalment of “commencement of excavation” in October, 2013 but could not proceed with the construction on the spot, even till February, 2017 although in some cases 42 months would complete in April, 2017. Some of the allottees have also taken loan from the bank/financial institutions for timely payment of the instalment and their EMI was started. Due to unreasonable delay, the complainants wrote letters/legal notices for refund of their amount with interest in March, 2017. In spite of service of the letters/notices, the OP did not respond. Then this complaint was filed on 04.10.2017, alleging deficiency in service.
M/s. 1000 Trees Housing Private Limited (the OP) filed its written reply, in which, booking of the flat, allotment of the flat, execution of Builder Buyers Agreement and deposits made by the complainants, have not been disputed. The OP obtained Development Licence No.127 of 2012 dated 27.12.2012 for development of above project. Building Plan was approved on 15.07.2013. However, on account of global recession, which had hit the economy across the world, including India, particularly real estate sector, the pace of construction has slow down. The OP has taken time to come out of recession, which has resulted in delay of the project. Various projects undertaken by the OP have been delayed due to circumstances beyond the control of the OP. Clause-4.46 of the agreement confers right to the OP to offer alternate flat. Due to delay, for the reasons beyond their control, the OP approached the complainants for allotment of the alternate flat, available with them, which was near completion and situate in same locality at better location, but the complainants refused the proposal. Some of the complainants and many allottees of this project have accepted alternate offer. The complainants are not consumer rather investors in real estate. The reliefs sought for in this complaint are of the nature of recovery suit for which civil suit is liable to be filed. Clause-14 of the agreement contains an arbitration clause as such the dispute be referred to an Arbitrator as per Section 8 of Arbitration and Conciliation Act, 1996. The complaint is liable to be dismissed.
The complainants filed Rejoinder Reply, Affidavits of Evidence of all the complainants and documentary evidence. The OP filed Affidavit of Evidence of Mahesh Chandra Joshi and documentary evidence. The OP, through IA/10918/2022, filed list of 68 allottees of the project “1000 Trees”, who have accepted alternate flat and order of District Town Planner, Gurugram dated 08.03.2019. The OP, through IA/7638/2023, filed various documents, stating that Municipal Corporation, Gurugram sanctioned construction of a ‘Ramp Like Inclined Road’ at the place dividing Sector 104 and Sector-105, Gurugram. Due to construction of above ramp, access to the project “1000 Trees” through Dwarka Expressway was blocked. The OP, therefore, became unable to carry the building materials up to the project. The OP gave representations dated 24.05.2018 01.06.2018 and 08.06.2018 to Municipal Commissioner, Gurugram and the delegation of the builders also met with Chief Minister for removal of the ramp but nothing was done. Ultimately CWP No.17920 of 2018 was filed before Punjab and Haryana High Court, who by the order dated 23.07.2018, directed Director General, Town and Country Planning, Haryana to decide the representations of the builders after hearing the parties. Director, Town and Country Planning, Haryana, vide order dated 02.04.2019, directed Gurugram Municipal Development Authority to re-design the junction leading to the licenced colony. In compliance of the above order, District Town Planner, Gurugram passed order dated 08.05.2019. Then a fresh survey was done and Daulatabad Flyover (ROB) has been re-designed. Fresh tenders were invited for construction of Daulatabad Flyover (ROB) and Municipal Corporation passed the tender on 04.02.2022. Due to above reasons, the construction was totally stopped on the spot. Both the parties have filed their written synopsis.
We have considered the arguments of the counsel for the complainants and examined the record. The OP raised preliminary issue that the complainants are not a consumer, but the OP has not filed any evidence to prove that the complainants were engaged in the business and purchasing and selling the properties. As such, it cannot be said that the flat was booked for commercial purpose. Supreme Court in Emaar MGF Land Limited Vs. Aftab Singh, (2019) 12 SCC 751, held that consumer forum exercises jurisdiction in addition and not in derogation of Arbitration and Conciliation Act, 1996, as such, in spite of arbitration clause in the agreement, consumer complaint is maintainable. Preliminary objections have no merit and are rejected.
Admittedly, the complainants booked one flat each, in the project “1000 Trees” and deposited booking amount in the year 2013-2014. The OP allotted flats in different towers from “A” to “J” and executed “Builder Buyer Agreement” in their favour, shortly after the booking. Clause-4.1 of the agreement provides 42 months period, from the date of execution of the agreement, for delivery of possession. The OP realized instalment of “commencement of excavation” in October, 2013 but could not proceed with the construction on the spot, even till today. But the complainants cannot be forced to take alternate accommodation. 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, held that the buyer cannot be made to wait for indefinite period for possession.
ORDER
In view of aforesaid discussions, the complaint is partly allowed. The opposite party-1 is directed to refund entire amount deposited by the complainants with interest @9% per annum from the date of respect deposit till the date of refund, within a period of two months from the date of this judgment.