Haryana

StateCommission

CC/463/2017

SHIVALI MANCHANDA - Complainant(s)

Versus

BHOOMI INFRASTRUCTURE CO. - Opp.Party(s)

SAURABH GAUTAM

21 Apr 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

  Date of Instituion:02.08.2017

                Date of final hearing:21.04.2023

                                                Date of pronouncement:25.04.2023

 

Consumer Complaint No.463 of 2017

 

IN THE MATTER OF

 

1.      Shivali Manchanda wife of Mohit Manchanda, R/o House No.625, Sector-9, Panchkula.

2.      Mohit Manchanda son of Late Shri Ranvir Manchanda, R/o House No.635, Sector-9, Panchkula, presently residing at 21 Skytop, Dr. Trumbull CT06611, United States of America.

                                                                                      .….Complainants

Through counsel Mr. Saurabh Gautam, Advocate

Versus

 

1.    Bhoomi Infrastructure Company through its Managing Director/General Manager having its Corporate Office at Gold City, Plot No.11, Sector-19D, Vashi, Navi Mumbai.

2.      Bhoomi Infrastructure Company through its partner/proprietor Lt. Co. (Retd.) S.S. Deswal, having its Branch office at House No.1411, Sector-21, Panchkula, Haryana.

….Opposite parties

Through counsel Mr. Jaswant Singh, Advocate

 

 

CORAM:   S.C. Kaushik, Member.

 

Present:-    Mr. Saurabh Gautam, counsel for the complainants.

Mr. Jaswant Singh, counsel for opposite parties.

 

O R D E R

S.C. KAUSHIK, MEMBER:

 

                    The brief facts giving rise for the disposal of the present complaint are that complainants are NRIs and want an independent flat for themselves in India. Ops floated a residential housing project under the name & style of “Amazon-The Defence county” situated at Sector-30, Panchkula (Haryana). Complainants approached by the representatives of Ops and complainants booked of a flat in their project. Ops were allotted a unit No.B1-902, 9^th Floor, Type-B, measuring 1590 sq. ft. through letter dated 23.08.2010 for a basic sale price of Rs.46,90,500/- and total sale consideration of Rs.53,30,845/-. Complainants paid an amount of Rs.12,70,212/- to the OPs on different dates as per their demands. It was alleged that the Ops delayed the execution of Buyer’s Agreement till the year, 2011 and sent the copy of Buyer’s Agreement in October, 2011 at USA. As per the said agreement, possession of the said apartment was to be delivered by the Ops within 36 months from the date of allotment of flat and in case Ops failed to do so, then the company shall refund the entire money along with interest to the complainants. Thereafter, the complainants inquired about the true facts, but came to know that company did not start any development activity at the project site. It was further alleged that Ops vide their letter dated 07.03.2014 informed the complainants that they expect to hand over the possession of flat with next 2 to 2.5 years i.e. nearly in the year, 2017. Thereafter, complainants requested them to refund their deposited amount alongwith interest, but they failed to do so and vide their letter dated 02.07.2016 cancelled the allotment of flat. Thus, there was deficiency in service on the part of the OPs. The complainant prayed that OPs be directed to refund deposited amount i.e. Rs.12,70,212/- alongwith interest @ 17% p.a. from the date of deposits till its realization; to pay Rs.2,00,000/- as compensation on account of unfair trade practice; to pay Rs.1,00,000/- as compensation on account of mental and physical agony and to pay Rs.55,000/- as litigation expenses.

2.                Notice of the complaint was issued against the Ops, upon which OPs appeared and filed their written statement, vide which it was submitted therein that the complaint is not maintainable as the complainants are not consumer but he is investor who applied for unit in question for earning benefits and not for the residential purpose of his own. However, it was admitted that the complainants booked a flat having super area of 1590 sq. ft. in their project and Flat No.B-1, 902, 9^th Floor, Type-B was allotted to them for a basic sale price of Rs.46,90,500/- and on a total sale consideration of Rs.53,30,845/-. It was also admitted that Buyer’s Seller Agreement was executed between the parties in October, 2011. The complainants had opted for construction linked plan. It was submitted that complainants failed to make the payment as per construction linked plan and Ops sent many letters and reminders to them for deposit of due installments alongwith interest, but they failed to do so. However, it was admitted that complainants made a payment of Rs.12,70,212/- to the Ops. As per the commitment the possession was to be delivered within 48 months from the date of Buyer Seller Agreement subject to some conditions. However, as per clause 26 of the said agreement, the developer shall extend the date of possession subject to force majeure circumstances. It is submitted that delay in offering the possession had occurred due to the reasons beyond the control of OPs. Moreover, complainants themselves defaulted in making payments and they are not entitled for taking the possession of the flat in view of the terms and conditions of the agreement. Other allegations made in the complaint were also denied. Thus, there was no deficiency in service on the part of the Ops and prayed for dismissal of the complaint.

3.                When the complaint was posted for recording evidence of the parties, learned counsel for complainants has tendered in evidence affidavit of Shri Mohit Manchanda as Ex.CA vide which he has reiterated all the averments taken in the complaint and further tendered the documents Ex.C-1 to Ex.C-10 and closed the evidence on behalf of complainant.

4.                On the other hand, learned counsel for OPs has tendered into evidence affidavit of Lt. Col. (Retd.) Shri S.S. Deswal, Managing Director of GLM Infrastructure Pvt. Ltd. As Ex.RA alongwith other documents Ex.R-1 to Ex.R-8 and closed the evidence on behalf of Ops.

5.                The arguments have been advanced by Mr. Saurabh Gautam, learned counsel for the complainants and Mr. Jaswant Singh, learned counsel for Ops. With their kind assistance entire record including documentary evidence as well as whatever the evidence had been led during the proceedings of the complaint have been properly perused and examined.

6.                As per the basic averments raised in the complaint including the contentions raised by the learned counsel for the complainants, the foremost question which requires adjudication by this Commission is as to whether the present complainants are entitled to get refund of the amount which he had already deposited, alongwith the interest or not? 

7.                While unfolding her arguments, it has been argued by Mr. Saurabh Gautam, learned counsel for the complainants that as far as the execution of the Buyer Seller Agreement Ex.C-6 is concerned, the same could not be disputed. It could also not be disputed that the complainants had paid Rs.12,70,212/- (Ex. C-3 to Ex.C-5) to the Ops. It is also not controverted that the total sale consideration of the said flat was Rs.53,30,845/.  As per the Buyer Seller Agreement and the terms and conditions incorporated therein, including date of delivery of the possession of the apartment, the possession complete in all respect was to be delivered to the complainants by the OPs within 48 months, subject to some reservations. The period within which, the possession of the unit was to be delivered has already expired despite complainants having deposited an amount of Rs.12,70,212/-. In these circumstances, the complainants had no other option, but, to seek the refund of the amount alongwith interest, which he had already paid, as they do not think that OPs will be able to put him into possession of the flat.  

8.                On the other hand, Mr. Jaswant Singh, learned counsel for Ops has argued that complaint is not maintainable as the complainants are not consumer but he is investor who applied for unit in question for earning benefits and not for the residential purpose of his own. He further argued that total sale consideration of the said flat was Rs.53,30,845/-, but complainants had paid only Rs.12,70,212/-. The complainants had opted construction linked plan. It was submitted that complainants failed to make the payment as per construction linked plan and Ops sent many letters and reminders to them for deposit of due installments alongwith interest, but they failed to do so.  He further argued that as per the commitment the possession was to be delivered within 48 months from the date of Buyer Seller Agreement subject to some conditions. However, as per clause 26 of the said agreement, the developer shall extend the date of possession subject to force majeure circumstances. He further argued that delay in offering the possession had occurred due to the reasons beyond the control of OPs. Moreover, complainants themselves defaulted in making payments and they are not entitled for taking the possession of the flat in view of the terms and conditions of the agreement.

9.                In view of the above submission and after careful perusal of the entire record, it stands proved that upon floating a project by the OPs-builders, residential unit was purchased by the complainant for a total cost of Rs.53,30,845/- against which an amount of Rs.12,70,212/- has already been paid.  Buyer Seller Agreement which was executed in the month of October, 2011 also stands proved. As per the agreement, the possession of the apartment was to be delivered within a period of 48 months complete in all respects subject to some reservation. To the utter surprise of this Commission it is quite surprising as to how inspite of the fact that a period of more than 8 years had expired, the possession of the apartment has not been delivered by OPs.  As such, there was a clear breach of terms and conditions of the Buyer Seller Agreement on behalf of the Ops. It is the normal trend of the developers that developer would collect their hard earned money from the individuals and would invest the funds in other projects and as a result thereof the project for which the investors have invested their hard earned money is not completed.  Resultantly, the delivery of possession or completion of the project is delayed as in the present case.  When the project is not complete as such, this Commission is of the considered opinion that there is deficiency in services of OPs and thus, complainants are well within their legal rights to receive refund of the amount of Rs.12,70,212/-  (Rs. Twelve lakhs seventy thousand two hundred twelve only) which they had already deposited with the OPs. Even otherwise also, there is a strong element of the physical and mental agony caused to the complainants for their having invested a huge amount and still deprived of not being put into possession of the same and under these constrained circumstances, they had to knock at the door of this Commission even for seeking refund of the amount. In such like cases, the Commission had to deal with the developers with severe hands with those who are misusing the funds of the individuals. As such, the question is answered in the affirmative.

10.              As regard the rate of interest to be awarded, it may be relevant to keep the following factors into consideration. Keeping in view the recent periodic revision of repo rate by Monetary Policy Committee of Reserve Bank of India and consequent upward revision of Marginal Cost of Lending Rate (MCLR) by the Nationalized Banks, there has been an increase in lending rate by the Nationalized banks. Accordingly it would, in considered view of this Commission, be just fair and reasonable to award 9% as rate of interest to the complainant.

11.              In the light of the above observation and discussion, there are sufficient grounds to accept the complaint and while accepting the complaint, the Ops are directed to refund of the amount of Rs.12,70,212/-  (Rs. Twelve lakhs seventy thousand two hundred twelve only) alongwith interest @ 9%  per annum to the complainants from  the date of respective deposits till realization.  In case, there is a breach in making payment within the stipulated period of 45 days, in that eventuality, the complainants would further be entitled to get the interest @ 12% per annum, for the defaulting period. The complainants are also entitled to an amount of Rs.50,000/- (Rs. Fifty Thousand Only) on account of compensation for mental and physical agony.  In addition, the complainants are also entitled to an amount of Rs.25,000/- (Rs. Twenty Five Thousand Only) as litigation charges. It is also made clear that in case of non-compliance, the provisions enshrined under section 72 of the C.P. Act would also be attractable.

12.              Application(s) pending, if any, stands disposed off in terms of the aforesaid order.

13.              A copy of this order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 2019. This order be uploaded forthwith on the website of the Commission for the perusal of the parties.

14.              File be consigned to record room alongwith a copy of this order.

 

 

Pronounced on 25^th April, 2023

 

                                                                                                            S.C Kaushik,

Member        

Addl. Bench-III        

 

R.K