Yogendra Khurana vs Uppal Housing Private Limited & Anr

Ram Surat Ram Maurya,Presiding Member

Heard Mr. Dheeraj Gupta, Advocate, for the complainant and Mr. Prabhakar Tiwari, Advocate, for opposite party-1 and Mr. Anmol Kumar, Advocate, for IRP, appearing for opposite party-2.

Yogendra Khurana has filed above complaint, for directing Uppal Housing Private Limited and M/s. Umang Realtech Private Limited (the opposite parties) jointly and severally (i) to refund amount of Rs.8368349/- with interest @18% per annum from the date of respective deposit till the date of refund, (ii) to pay compensation of Rs.5/- lacs with interest @18% per annum from the date of filing the complainant till payment, for mental agony and harassment, (iii) to pay Rs.1/-lac as cost of litigation to the complainant.

The complainant stated that Delhi Metro Rail Corporation Limited allotted land admeasuring 21954.8 sq.mtr., near Dwarka Morh Metro Station, Delhi to Uppal Housing Private Limited (opposite party-1) vide lease deed dated 19.05.2006, for development of group housing project. Uppal Housing Private Limited applied for sanction of layout plan, which was approved on 12.08.2009, by Municipal Corporation, Delhi. Thereafter, Uppal Housing Private Limited entered into a Collaboration Agreement dated 18.01.2010, with M/s. Umang Realtech Private Limited (opposite party-2) (the builder), with the approval of Delhi Metro Rail Corporation Limited, for development of the project. The builder launched a project in the name of “Winter Hills Dwarka” over that land and made wide publicity. The complainant applied for allotment of a 3BR flat on 11.06.2010 and deposited Rs.751011. The builder allotted Flat No.E-1003 at 10 th Floor, Tower-E (super area 1457 sq.ft., and two car parking space, Basic Sale Price-Rs.8097127/-). The builder executed Apartment Buyer’s Agreement dated 30.07.2012, which was also signed by Uppal Housing Private Ltd. as confirming party. Vide Clause-8.1 of ABA dated 30.07.2012, delivery of possession was promised, till 31.03.2014 with grace period of six months and payment plan was “Time Linked Payment Plan”, under which, entire sale consideration had to be paid up to 10.01.2014. As per time schedule and demand letter, the complainant paid Rs.8368349/-, taking loan from HDFC ltd. The complainant tried to know about the stage of construction, in April, 2014. The builder informed that it would be completed soon. The builder issued a letter dated 28.10.2017, asking to deposit outstanding dues of Rs.1247484/-as the project was completed. After receiving this letter, the complainant visited to the project and found that the construction was incomplete. The complainant protested the demand as the construction was incomplete and also that he had already deposited entire sale consideration. The builder issued another demand letter dated 20.02.2018, asking to take possession, otherwise, he had to pay holding charges. The complainant, vide email dated 26.02.2018, raised protest regarding demand of D-VAT of Rs.41139/- as according to him Rs.330000/- had already been paid as D-VAT. The builder issued Final Reminder dated 23.07.2018. The complaint was filed on 21.06.2019, for refund, complaining deficiency in service.

Against M/s. Umang Realtech Private Ltd. (opposite party-2), proceeding under Insolvency and Bankruptcy Code, 2016, has been initiated, in which, moratorium has been declared by National Company Law Tribunal, New Delhi, which is still continuing. Right of Uppal Housing Private Limited (opposite party-1) to file written reply has been closed by order dated 23.01.2020.

The complainant filed Affidavit of Evidence of Yogendra Khurana and filed documentary evidence and written submission. The complainant relied upon judgments of this Commission in CC/2656/2017 Kavighei Vs. M/s. Uppal Housing Private Ltd. and another (decided on 27.03.2019) and CC/1555/2018 Sanjay Roy Chaudhary Vs. M/s. Uppal Housing Private Ltd. and another (decided on 27.03.2019), which were approved by Supreme Court in Diary Nos. 15146 & 15362 of 2019, dismissing the appeals. This Commission held that under Collaboration Agreement dated 18.01.2010, Uppal Housing Private Ltd. had 45% shareholding in the project as such both the opposite parties are jointly and severally liable for the buyers.

I have considered the arguments of the counsel for the parties and examined the record. Under Clause-8.1 of Apartment Buyer’s Agreement dated 30.07.2012, which was also signed by Uppal Housing Private Ltd. as confirming party, delivery of possession was promised till 31.03.2014 with grace period of six months. Payment plan was “Time Linked Payment Plan”, under which, entire sale consideration had to be paid up to 10.01.2014. As per time schedule and demand letter, the complainant paid Rs.8368349/-, taking loan from HDFC ltd., as against Basic Sale Price of Rs.8097127/-. The builder applied for issue of Completion Certificate on 28.05.2018. Thus there was delay of more than four years in completing the project. Supreme Court in Pioneer Urban Land & Infrastructure Ltd. Govind Raghvan, (2019) 5 SCC 725, Kolkata West International City Vs. Devasis Rudra, 2019 SCC OnLine SC 438 and NBCC (India) Ltd. Vs. Shri Ram Trivedi, (2021) 5 SCC 273, held that a buyer cannot be compelled to wait for possession for unlimited period.

In view of the aforesaid discussions, the complaint is allowed. Uppal Housing Private Ltd. (opposite party-1) is directed to refund entire amount deposited by the complainant with interest @9% per annum from the date of respective deposit till the date of refund, within a period of two months from the date of delivery of this judgment.