Vineet Ruia & Anr vs M/s Geeta Ganesh Promoters Pvt. Ltd

Ram Surat Ram Maurya, Presiding Member

Heard Mr. Mahesh Tiwari, Advocate, for the complainants and Mr. Partha Sil, Advocate, for the opposite party.

Vineet Ruia and Smt. Anuradha Ruia have filed above complaint for directing the opposite party to (i) complete registration formality of the property in question, immediately, without any additional cost to be borne by the complainants; (ii) restrain the opposite party from selling Flat No. 11-B, Tower 5, 93, Moulana Abul Kalam Azam Sarani, Kolkata or creating third party interest over it; (iii) pay compensation for delayed possession, in the form of interest on their deposit and further interest on delayed refund of GST input credit amounting Rs.10941693.41 till 30.04.2022 and further interest till the date of its realization; (iv) pay Rs.500000000/-, as compensation for mental agony and harassment; (v) allow the complainants and their family to use all facilities and amenities available in the project “Rare Eath” without any recourse or demur hereafter; (vi) restrain the opposite party from any construction or repair work in the project “Rare Earth”, including the land measuring 48160.53 sq. metres or any adjoining /abutting land; (vii) restrain the opposite party from selling unsold flats in the project “Rare Earth”, in public interest: (viii) pay Rs.350000/-, as litigation costs; and (iii) any other relief, which is deemed fit and proper in the fact of the case..

The complainants stated that M/s. Geeta Ganesh Promoters Private Limited was a company, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing project. The opposite party launched a group housing project, in the name of “Rare Earth”, at Premises No. 93, Moulana Abul Kalam Azad Sarani, Kolkata, in the year 2018 and made wide publicity of its amenities and facilities in print and electronic media. Believing upon the representations of the opposite party, the complainants talked the opposite party for purchasing a flat on 28.02.2020, who informed that Flat 11-B, Tower 5, admeasuring 2062 sq.ft. built-up area, 1845 sq.ft. carpet area (excluding balcony area) + two covered car parking and one open car parking, total price of Rs.27580518/- in the project “Rare Earth” was available. The complainants deposited Rs.1100000/-, through cheque dated 28.02.2020. The complainants asked for some discount to Mr. Gopal Prasad, Director of the opposite party on 05.03.2020, who did not agree and returned the money of the complainants through RTGS. The complainants were in urgent need of the flat for their aged parents as such they made full payment of Rs.27580518/- (including Rs.2950608/- as GST) on 06.03.2020 and signed an agreement for sale without going through it. The opposite party handed over fit-out possession of said Flat 11-B, Tower 5 on 07.03.2020 to the complainants, who after taking possession, started interior decoration work in the said flat. Due to spread of Novel Coronavirus pandemic in the country, the Government imposed lock down from 22.03.2020, as such the documents could not be executed. The opposite party obtained “completion certificate” on 09.12.2020. As per agreement dated 06.03.2020, the opposite party had to handover possession within two months after obtaining “completion certificate” but they delayed handing over possession and also neglected to refund input credit of GST to the complainants. As the opposite party was delaying delivery of possession on one or other pretext, the complainants through emails dated 11.05.2021, 09.07.2021 and 30.07.2021 asked to refund GST input credits, held by them, which ought to have been refunded immediately after 31.03.2020. After few months, the officials of the opposite party handed over agreement for sale dated 06.03.2020 as signed by the complainants, then they read it and found significant deviations and discrepancies in it, in comparison with the draft agreement as uploaded on the WBHIRA website. The complainants, through emails dated 19.07.2021 and 23.07.2021, requested to rectify the discrepancies in the agreement for sale. The complainants, through emails dated 28.07.2021, asked the opposite party to handover possession of the flat as they had made full payment and the opposite party had handed over possession to various other allottees in the project. The opposite party did not respond to any of the emails. The complainants filed a complaint before WBRERA on 01.08.2021 and copy of the said complaint was served upon the opposite party through email on 02.08.2021. The complainants through email dated 26.08.2021, raised queries in respect of calculation of the built up area and carpet area, privacy and safety of the flat. State Government reduced prevailing circle rate by 10% and also offered rebate of 2% in stamp duty on the registration of sale deed up to 31.10.2021. The complainants wrote an email dated 26.09.2021 to execute sale deed and handover possession so that they could get benefit of above rebate/reduction but the opposite party did not respond. The complainants gave legal notice dated 28.09.2021, calling upon the opposite party to handover possession forthwith and execute sale deed. The opposite party gave reply dated 28.09.2021, replying that registration of the sale deed and refund of GST input credit would be done before 31.10.2021 and stated that as possession had already been handed over, the complainants would be liable for holding charges. The complainants replied that letter on 28.09.2021 and stated that only fit-out possession, restricting entry between 8:00 am to 6:00 pm was handed over and in spite of repeated requests, final possession was not handed over as such they would not be liable to pay holding charges. The complainants showed their willingness to execute sale deed on 29.09.2021. The opposite party, through email dated 30.09.2021, asked to clear balance dues, pay stamp duty and registration charges and take possession within 7 days. The complainants replied on 30.09.2021 that full consideration had already been paid and the complainants were entitled for refund of GST input credits and delay compensation as such stamp duty and registration charges be arranged, adjusting from the amount payable to them and execute the sale deed before 15.10.2021. The complainants gave an email dated 04.10.2021, repeating same request and pointing out discrepancies in the draft of sale deed as uploaded on WBHIRA, also requested to supply a draft copy of the sale deed and with demarcation of car parking spaces. The opposite party, vide letter dated 04.10.2021 again repeated demand of stamp duty and registration charges and called to visit its office to verify car parking locations. The complainants again wrote email dated 06.10.2021, for adjusting stamp duty and registration charges from GST input credits and delay compensation payable to them and share draft sale deed. The opposite party shared draft sale deed and the valuation and demanded stamp duty and registration charges. The complainants, through email dated 08.10.2021 demanded Plan A, B and C as referred in draft sale deed. Plan A, B and C were shared through email dated 08.10.2021 and the complainants were asked to visit the site at 4:00 pm for marking of car parking spaces. The complainants shared bank details for refund of GST input credit as demanded by the opposite party through email dated 11.10.2021. Various clauses of draft sale deed were not consistent with WBRERA Rules, therefore, the complainants through email dated 20.10.2021, requested to make necessary changes in it and informed that they had made payment of stamp duty and registration charges, enclosing e-challan payment confirmation. The opposite party again vide email dated 20.10.2021 asked for the bank details for refund of GST input credit. The opposite party in the papers submitted for registration of the project and sanction of layout plan to WBHIRA had shown total area of the land as 48160 sq.mtrs. while in the draft sale deed total area of developed land was shown as 21853.42 sq.mtrs. The complainants vide email dated 22.10.2021 sought for a clarification in this respect and also calculation of FAR ratio. The opposite party, vide email dated 26.10.2021, informed that registration of the sale deed would be carried out on 28.10.2021 at its office. The complainants raised query in respect of change of clauses as suggested by them through email dated 27.10.2021 and requested to share copy of final sale deed. The complainants lodged a complaint with Hon’ble Finance Minister, Special Secretary, GST Council and the Secretary National Anti-Profiteering Authority, Government of India vide email dated 27.10.2021 for not refunding GST input credit. The opposite party did not respond to email dated 22.10.2021. The complainants lodged a complaint to Director General (Buildings) and Executive Engineer (Buildings) vide email dated 27.10.2021 to confirm sanction FAR and consumed FAR in the project. Minimum distance between two towers  had been left about 14 inches, ignoring norms of fire safety. The complainants therefore lodged a complaint before Director General, Fire & Emergency Services, West Bengal and Director General (Building) Kolkata Municipal Corporation through email dated 11.11.2021. The opposite party, vide email dated 17.11.2021 called the complainant to attend their office on 18.11.2021 for registration of the sale deed. The complainants, vide email dated 17.11.2021 sought for confirmation as to whether the changes in the sale deed as suggested by them had been incorporated or not. The complainants sought for information in respect of minimum distance between two towers of the building having height of more than 100 metres under Right to Information Act, 2005, from Public Information Officer, Fire & Emergency Services, West Bengal. The complainants vide email dated 25.11.2021, against requested for registration of the sale deed and handing over possession and vide email dated 04.12.2021, informed that they were ready to sign the sale deed as it was shared by the opposite party and requested to demarcate parking spaces in the map and share it. The opposite party called the complainants for registration of the sale deed on 08.12.2021 in its office. The complainants, vide email dated 06.12.2021, again demanded map relating to allocation of their parking spaces. On 07.12.2021, the opposite party informed that they could not arrange for registration of sale deed in its office on 08.12.2021. The complainants found that there were multiple contradictions between the drafts of the agreement and sale deed and final agreement and sale deed. The complainants, vide email dated 08.12.2021, informed the opposite party that they were signing the sale deed not of their free will. As the map relating to demarcation of parking spaces was received, the complainants, vide email dated 09.12.2021, asked for some other date for registration of the sale deed. The opposite party shared the map relating to demarcation of parking spaces on 11.12.2021. The opposite party, vide letter dated 16.12.2021 terminated the agreement and informed the complainants to take refund of their amount. The complainants, vide letter dated 17.12.2021, protested the termination of the agreement. Then this complaint was filed on 09.06.2022.

The opposite party filed its written version on 05.09.2022 and contested the complaint. The opposite party stated that the project “Rare Earth” consists an area of 48160.53 sq.mtrs, five separate blocks of 35 stories each, all connected at basement level and altogether 503 flats with car parking facilities and other amenities such as club, swimming pool, gymnasium etc. Kolkata Municipal Corporation sanctioned building plan on 10.04.2012 and issued notice of commencement of the construction on 10.09.2012. The opposite party obtained the approvals from Fire Department, Pollution Control Board and other authorities. Revised Building Plan was sanctioned on 17.02.2014. After coming into force of West Bengal Housing Industries Regulations Act, 2017, the project was registered in it. The opposite party completed the construction as per sanctioned building plan and obtained “completion certificate” on 09.12.2020. The allottees of 248 flats got their sale deeds executed and registered and took possession of their flat. After examining the flat and all the documents relating to the project, draft of agreement for sale, the complainants deposited Rs.27580518/- on 06.03.2020 and signed the agreement for sale. The construction was complete as such the complainants took possession on 06.03.2020 for interiors decoration of their choice and since then they were continuously in possession as admitted in the complaint. The complainants, vide email dated 12.12.2021, made allegations upon the opposite party, for changing of the lock. If the opposite party had locked the flat and even then the complainants are in its possession without obtaining sale deed and without handing over possession, then their possession would be forcible and unauthorised. Draft sale deed, compliant to West Bengal Housing Industries Regulations Act, 2017, was declared ultra-vires by Supreme Court. The complainants insisted to incorporate various terms in the sale deed, contrary to the terms of the agreement for sale dated 06.03.2020, vide various emails and letter dated 08.10.2021 and avoided execution of sale deed after obtaining “completion certificate” on 09.12.2020, although the opposite party was always ready and willing to execute sale deed. In order to create undue pressure upon the opposite party, the complainants started making false and frivolous complaints to various authorities relating to misappropriation of more than Rs.126/- crores of GST, cheating the authorities and the buyers by showing wrong FAR, bribery in obtaining NOC and “completion certificate” and made defamatory publications against the opposite party. Complainant-1 while talking with an employee of the opposite party on telephone on 11.12.2021, threaten to cause damage to the opposite party of more than Rs.2000/- crores, if his demand is not accepted. Complainant-1 claimed to be a member of “Bharat Bachao Sangathan” and used to extract money by initiating frivolous litigation from the peoples. As in spite of repeated reminders, the complainants were not ready for the sale deed in the terms of agreement for sale, the opposite party rescinded the agreement for sale dated 06.03.2020, vide notice dated 16.12.2021 and offered the complainants to take refund of their money. The opposite party also filed a suit, (registered as Civil Suit No.247 of 2021) before High Court of Judicature at Calcutta on 18.12.2021, for declaration that rescission of agreement for sale dated 06.03.2020, through notice dated 16.12.2021 was valid and for other consequential relief against the complainants, in which, High Court has passed interim injunction dated 13.01.2022. Subsequently, High Court, after hearing both the parties, vide order dated 16.06.2022 appointed Mr. Rohit Banerjee, Advocate as “Special Officer” to oversee execution of the conveyance deed in favour of the complainants in terms of the agreement for sale dated 06.03.2020, within a period of two weeks. The complainants insisted the Special Officer to incorporate the terms in the sale deed, which are not in accordance with agreement for sale dated 06.03.2020, as such it was not agreed by the Special Officer, who got the conveyance deed executed on 06.07.2022 and submitted his report to the High Court on 07.07.2022. Input credit GST was refunded to the complainants on 06.08.2022. Knowing well about the above suit, this complaint was filed on 08.06.2022 and is not maintainable. The complainants also filed a complaint before Real Estate Regulatory Authority, Calcutta on 01.08.2021, for similar relief, which is pending. The allegations that the complainants and their family members are not being permitted to access the common amenities and facilities, are false. The daughter of the complainants is using swimming pool and has an identity card, issued to her. The parents of the complainants are using golf cart. The complainants booked club house for his family function on 25.12.2021.  The complainants are using all the three car parking allotted to them.

The complainants filed Rejoinder reply, Affidavit of Evidence of Vineet Ruia. The opposite party filed IA/10752/2022, for dismissing the complaint as conveyance deed has already been executed in favour of the complainants on 06.07.2022. The complainants filed reply to this IA. The opposite party filed rejoinder, in IA.

I have considered the arguments of the counsel for the parties and examined the record. The complainants have given their address in the complaint as “Rare Earth, Tower 5, Flat 11-B, 93, Moulana Abul Kalam Azam Sarani, Kolkata-700054, West Bengal”. In Prayer-B, they have stated that above flat has been sold to the complainants and they are presently residing in it. In paragraph-12 of the complaint, they have stated that one set of keys of the flat were handed over to them on 07.03.2020 and a letter of permission for fit-out as per standard format was given. The complainants, vide email dated 12.12.2021, made allegations upon the opposite party, for changing of the lock. This allegation does not appear to be correct as the complainants are in possession without obtaining sale deed and without handing over possession afresh as there is neither any allegation nor evidence on record that after 07.03.2020, the complainants were again given possession of the flat. It is proved that the complainants are continuing in possession since 07.03.2020 and they are not entitled for delay compensation.

Relief A in the complaint is for execution and registration of the conveyance deed of the flat. Under the order of Calcutta High Court, in Civil Suit No.247 of 2021, conveyance deed was executed and registered on 06.07.2022 and input credit GST was refunded to the complainants on 06.08.2022. The opposite party has stated that the family members of the complainants are using the common amenities and facilities. The daughter of the complainants is using swimming pool and has an identity card, issued to her. The parents of the complainants are using golf cart. The complainants are using all the three car parking spaces. The complainants booked club house for his family function on 25.12.2021. These reliefs have become infructuous. In any case, if there is any discrepancy, High Court is seized with the issues and has already granted some relief, it is not open for this Commission to decide these issues afresh at its own level.

There appears no reason for the opposite party, for not executing conveyance deed except, insistence of the complainants to incorporate the terms in sale deed, compliant to West Bengal Housing Industries Regulations Act, 2017, which was declared ultra-vires by Supreme Court. Due to which, execution of the conveyance deed was delayed. Now on the direction of the High Court, sale deed was executed on 06.07.2022. The complainants are contesting the suit. It is very well open to them to convince the High Court that their demand for incorporation of various terms in the sale deed was legal. Since High Court is already seized with the issue, it is not open to this Commission to examine the issue.

So far as allegation that the project was not constructed as per sanctioned layout plan, is concerned, issuance of “completion certificate” is prima facie proof that the construction was raised as per sanctioned plan. There is no strong evidence to rebut it. In any case, the complainants have already moved complaints before Municipal Corporation Kolkata and this issue can more appropriately be decided by Municipal Corporation Kolkata. Complainant-1 has already obtained a direction from Calcutta High Court in Writ Petition (A) No.8490 of 2023 dated 20.07.2023, for decision of his complaint.

ORDER

In view of the aforesaid discussion, the complaint is dismissed with liberty to the complainants to claim their relief in Civil Suit No.247 of 2021, before High Court of Judicature at Calcutta.