Haryana

StateCommission

CC/106/2018

PARTAP CHAND NASA AND ANOTHER - Complainant(s)

Versus

DWARKADHIS PROJECTS PVT.LTD. - Opp.Party(s)

MUKAND GUPTA

28 Apr 2023

ORDER

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                                                Consumer Complaint  No.106  of  2018

Date of the Institution:28.02.2018

Date of order:  28.04.2023

1. Partap Chand Nasa S/o J.C.Nasa aged 70 years
2. Aruna Nasa wife of Partap Chand Nasa aged 68 years.

Both residents of apartment No.501, Shiwalik Apartments, Sector 10-A, Gurugram (Haryana).

                                                                   .….Complainants

Versus

1. Dwarkadhish Projects Pvt. Ltd. Registered office 3-D, Bigjo’s Tower, A-8, Netaji Subhash Chander Place, Pitampuram, Delhi through its Managing Director.
2. Vikas Jain, Director, Dwarkadhish Projects Pvt. Ltd. Corporate Office Building No.2007, Main Road,Sector 45, Gurugram, Haryana.
3. Sulekha Jain, Director, Dwarkadhish Projects Pvt. Ltd. Corporate Office Building No.2007, Main Road,Sector 45, Gurugram, Haryana.
4. Dwarkadhish Projects Pvt. Ltd. Revenue Estate Village Garhi Alawalpur, Sector 24, Dharuhera, Distt. Rewari.

                                                          .….Opposite Parties

CORAM:   S.P.Sood, Judicial Member

 

Present:-    Mr.Mukund Gupta, Advocate for the complainants.

Mr.Gaurav G.S.Chauhan, Advocate for the Opposite Parties.

 

O R D E R

S P SOOD, JUDICIAL MEMBER:

 

          The facts as alleged in the present complaint are that on 12.02.2007, complainants had  booked 2 BHK flat with the opposite parties  measuring 1200 sq. ft. situated in Aravali Heights, Sector 24 Dharuhera, Distt Rewari for the total sale consideration of Rs.24,79,036/- (including EDC IDC and other charges). The basic price of the flat was agreed to be Rs.17,66,400/-. They paid  an amount of Rs.2,50,000/-  for registration/ booking of the unit.  Ops issued an allotment letter dated 24.08.2007 of the flat  No.115, 11^th Floor, Tower No.D-6 having super area of 1200 sq. ft. to the complainants. On 24.08.2007, Flat Buyer’s agreement was executed between the parties.  As per the agreement, the possession of the flat was to be delivered within three years from the date of start of construction.  It was a construction linked payment plan. The construction started on 20.01.2008 and thus possession of the flat was supposed to be delivered by the OPs by 20.01.2011.  As promised complainants tendered various of Rs.24,79,036/- with the Ops on different occasions, but, still Ops have failed to deliver the possession of the same.  In fact, OPs have received excess amount from them.  Faced with this situation, they arranged to issue legal notice dated 28.09.2015 to the Ops, which was duly replied wherein OPs refused to refund the excess amount. Faced with this situation, complainants filed complaint No.585 of 2015 before District Consumer Disputes Redressal Forum, Gurugram against Ops claiming compensation for not delivering possession of the flat in time, but, due to some technical reasons and in view of the law laid down by Hon’ble National commission, the complaint was dismissed as withdrawn due to pecuniary jurisdiction with liberty to file fresh complaint before the competent forum having jurisdiction.  During pendency of complaint before the District Forum, Gurugram, Ops issued a letter dated 29.01.2016 which was received by the complainant on 02.03.2016 wherein OP alleged that flats were ready for possession and asked complainants to take possession of the flat and also demanded another sum of Rs.1,64,675/- on the ground that area of the flat has been increased.   Letter dated 29.01.2016 was duly replied by complainant.  However Ops have not produced any completion/occupation certificate, no objection certificate from the competent authority.  The complainants went to the office of the Ops but later refused to take the money on the ground that complainants  will first have to withdraw the complaint and only thereafter the Ops will accept the money.  The complainant has recorded this version of the ops on C.D. The complainants filed fresh complaint before this Commission on 06.11.2017, CC. No.699 of 2017, which was also withdrawn by the complainant with liberty to file afresh on the same cause of action.   The complainant requested the Ops to refund Rs.24,79,036/- but to no avail. This is how they filed  this complaint on account of there being deficiency in service on the part of the OPs.

2.      Notice of the complaint was issued against the O.Ps. and thereafter written statement was filed raising objections regarding jurisdiction,  maintainability of complaint, concealments of true facts etc. and requested to dismiss the complaint. On merits, it was alleged that after considering application of complainants, the OP No.1 has issued allotment letter of apartment No.115 at 11^th floor in Tower No.D-6 measuring 1200 sq. ft. at a basic cost of Rs.1472 per sq. ft. in the project Arvali Heights, Sector 24 Dharuhera, Distt.Rewari in favour of complainants.  It was further allege that right from the very beginning the complainants were irregular in payment of installments. The total demand raised as per the agreement was Rs.26,43,411/-, whereas complainants have paid Rs.24,78,936/- after delay shown in para No.6 of the reply.  Various demand letters issued to them on 28.04.2007, 02.01.2008, 10.06.2008, 12.09.2008, 26.11.2008, 21.10.2010, 14.01.2011, 26.03.2011, 15.07.2011, 03.11.2011, 13.06.2013, but, they paid installments beyond the stipulated due dates. The complainants failed to make the payment as per agreed schedule. OP No.1 has issued letter dated 29.01.2016 requesting them to clear the dues and take possession but they have avoided the requests of Ops. The OPs made application  dated 17.06.2013 for substitution of application for grant of occupation certificate to Director General Town & Country Planning (DGTCP), Haryana. This is how there has been no delay in completion of construction and handing over of possession of apartment to the complainants. OP No.1 was still ready and willing to handover the possession to them once the complainants were ready to pay the entire installments alongwith interest and penal charges.  The OP NO.1 was not in a position to refund  the amount as the real estate market is completely under recession and no cash is lying with real estate developers including OP No.1. As per allotment letter if allottee fails to make the payment on due date then allotment will be cancelled by the OP and 10% of the total price of the apartment will be forfeited by the  OP and balance will be refunded to allottee without any interest. The complainants could not refuse to clear their liabilities to pay interest on delayed payment of installments. Thus there was no deficiency in service on the part of the Ops and requested to dismiss the complaint.

3.      When the complaint was posted for recording evidence of the parties, complainant in his evidence tendered affidavit Ex.CA of Mr.Partap Chand Nasa vide which he reiterated all the averments of the complaint and further tendered the documents Ex.C-1 to Ex.C-14 and closed his evidence.

4.                On the other hand, in order to rebut the evidence led on behalf of the complainants, O.Ps. have tendered an affidavits of Mr.Rakesh Rohilla authorized representative of Ops as Ex.RW-A  alongwith documents Ex.RW-1 to Ex.RW-15 and thereafter closed the evidence on behalf of OPs.

5.                The arguments have been advanced by Mr.Mukund Gupta, learned counsel for the complainants as well as Mr.Gaurav G.S.Chauhan, learned counsel for the opposite parties.  With their kind assistance entire record including documentary evidence as well as whatever material was led during the proceedings of the complaint has been properly perused and examined.

6.                As per the basic averment raised in the complaint and the reply filed thereto including the contentions put forth by the learned counsel for the parties, 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 they had already deposited, alongwith the interest despite the OPs having  already offered possession of the flat in question? 

7.                While unfolding his contention, it has been argued by Mukund Gupta, learned counsel for the complainants that as far as allotment of the flat  is concerned the same it is not in dispute.  It is also not in dispute that the basic price of the flat was Rs.24,79,036/- (including EDC, IDC and other charges) out of which a sum of Rs.24,79,036/- stood already paid by the complainants to the  O.Ps.  As per the agreement  and the terms and conditions incorporated therein regarding completion of the flat, the possession complete in all respect was to be delivered to the complainants by the O.Ps. within 36 months subject to some reservations.  However, the period within which, the possession of the unit was to be delivered had already expired despite complainants depositing the amount of Rs.24,79,036/-. The Ops have demanded Rs.1,64,475/-, which was apparently illegal and wrong.  In these circumstances the complainants had no other option, but, to seek refund of the amount alongwith interest, which they had already paid. 

8.                On the other hand, it was argued by Mr.Gaurav G.S.Chauhan, the learned counsel for the O.Ps. that complainants have not paid various installments as per the payment schedule.  There was a delay in making the payment of the amount.  It is true that the agreement spells out all the terms and conditions for allotment of the flat and provision for payment of the installments, charging the interest for delayed payment and delivery of possession.  However as there were some unavoidable circumstances and certain reasons which were beyond the control of the O.Ps. for which the possession of the flat could not be delivered to the complainants in time.  It was further argued that as per agreement the total demand raised was Rs.26,43,411/- whereas the complainants have paid a sum of Rs.24,78,936/- to the OP No.1.  The OPs have offered the possession of the unit vide letter dated 29.01.2016 and were also ready to pay delay penalties in accordance with agreement, but, the complainants have not come forward to take over the possession of the unit. The complainants have not deposited the balance amount of Rs.1,19,176/- despite several reminders.  The complainants are seeking refund of the amount but infact this amount has already been invested for arranging various developmental activities.  As per terms and conditions of the agreement,  the O.Ps. were bound  to deliver the possession of the apartment within 36 months, however, perusal of the file shows that OPs offered the possession of the unit in the year 2016.   Thus answering O.Ps. have not committed any breach of agreement. So for all these reasons complainants have no right to demand the refund.    The answering O.Ps. offered possession of the flat to them after completion of development work in 2016.   Thus, the complainants were not entitled for the refund as prayed for.

9.                In view of the above submission and after careful perusal of the entire record, it is not in dispute that upon floating a project by the builders, flat was purchased by the complainants for a cost of Rs.24,79,036/- against which an amount of Rs.24,79,036/-  has already been paid.  As per agreement, the possession of the flat was to be delivered within period of 36 months complete  in all respects subject to some reservation.   In the year 2016, the possession of the flat was offered to the complainant.  But a careful perusal of this offer of possession letter reveal that the same was perhaps a clever design on the part of OPs to extract further amount from complainants. To the utter surprise of this Commission and is very pity that inspite of the fact that period of more than 15 years has expired, the possession of the floor has not been delivered by O.Ps.  As such, there was a clear breach of terms and conditions of the agreement.   It is the normal trend of the developers/O.Ps. that  developer would collect their hard earned money  from  the  individuals and would invest the funds in other projects 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 has happened in the present case.  When the project is not complete as such, this Commission is of the considered opinion that there was clear cut  deficiency in service on the part of opposite parties  and thus, complainants are well within their legal rights to get the refund of the amount of Rs.24,79,036/-  (Twenty Four Lacs Seventy Nine Thousand and thirty Six Only)   which they had already deposited with the O.Ps.   Even the OPs illegally demanded an amount of Rs.1,64,475/- from them, whereas the total cost of the flat was agreed to be Rs.24,79,036/- (Twenty Four Lacs Seventy Nine Thousand and thirty Six Only including IDC and EDC and other charges)  and complainant has already paid the amount of Rs.24,79,036/-. Even otherwise also there is a strong element of the physical and mental agony caused to the complainants for investing a huge amount and still deprived of not being put into possession of the same and under these constrained circumstances, he had to knock the door of this Commission even for seeking refund of the amount.  In such like cases  the Commission had to deal with the developers/O.Ps. with stern hands 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 Landing Rate (MCLR) by Nationalized Banks, there has been an increase in lending rate by the Nationalized banks accordingly it would, in our considered view, 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 O.Ps. are directed to refund of the amount of Rs. 24,79,036/- (Twenty Four Lacs Seventy Nine Thousand and thirty Six Only)  alongwith interest @ 9%  per annum from  the date of deposit 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 of Rs.50,000/- (Fifty Thousand Only) for compensation of mental and physical agony.  In addition, the complainants are also entitled of Rs.25,000/-  (Twenty Thousand Only) as litigation charges.  It is also made clear that for non-compliance, the provisions enshrined under section 72 of the C.P.Act  would also be attractable. 

12.    Applications pending, if any stand disposed of 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, 1986/2019. The order be uploaded forthwith on the website of the commission for the perusal of the parties.

14.    File be consigned to record room.

 

April 28th, 2023                                                    S.P.Sood

                                                                             Judicial Member                                 

S.K.(Pvt.Secy)