District Consumer Disputes Redressal Commission ,Faridabad.
Consumer Complaint No.387/2020.
Date of Institution: 16.10.2020.
Date of Order: 15.11.2022.
M/s. Som Parkash Sanjeev Kumar through its proprietor Shri sanjeev Garg resident of House N. 654, Sector-28, Faridabad.
…….Complainant……..
Versus
M/s. RPS Infrastructure Ltd., RPS Infinia, 12/6, Milestone, Mathura Road, Sarai Khawaja, Faridabad through its Site Manager.Incharge.
…Opposite party……
Complaint under section-12 of Consumer Protection Act, 1986
Now amended Section 34 of Consumer protection Act 2019.
BEFORE: Amit Arora……………..President
Mukesh Sharma…………Member.
Indira Bhadana………….Member.
PRESENT: Sh. Ranbir Singh, counsel for the complainant.
Sh. M.P.Dagar, counsel for opposite party.
ORDER:
The facts in brief of the complaint are that believing on the assurance
of the opposite party, the complainant had booked an IT/ITES Unit on 23.11.2012 and made a booking amount of Rs.4,05,000/-. Thereafter, the opposite party had executed an Buyer’s Agreement on 12.06.2013 and allotted the IT/ITES unit bearing NO. 423, 4th floor, Twoer-AZURE-02, Super area 650 sq. ft. approx. in the said project “RPS-Infinia”. Sector-27C, Mathura Road, Faridabad and also issued allotment letter on 25.06.2013. The BSP of the said unit was Rs.40,13,750/- i.e. @6500/- per sq. ft. plus EDC/IDC and other legal charges. The complainant had paid a total sum of Rs.42,25,217/- i.e more than BSP of the said unit as per payment schedule i.e time link payment plan to the opposite party. As per the terms and conditions especially as per clause No. 18 of the Buyer’s agreement, the opposite party was to offer the possession of the fully furnished unit to the complainant upto 12.06.2016, but the opposite party failed to hand over the physical possession of the said unit to the complainant upto the stipulated period. Accordingly, the complainant approached the opposite party know the status of the said project, then the officials of the opposite party assured the complainant that the opposite party would hand over the possession of the said until upto the end of December, 2016. But the opposite party failed to deliver the possession of the said booked unit even after passing the grace period of six months as per buyer’s agreement. On one hand, the opposite party failed to fulfill the terms and conditions of the said buyer’s agreement and on the other hand, started unnecessary/illegal demands from the complainant on one pretext or the other. Whereas, as per actual position of the site/project, several finishing, plaster, interior/exterior work, other development etc. were still pending and the opposite party was not a position to give any satisfactory reply to the complainant. Thus, the opposite party was guilty of rendering of deliberate, deficient services by adopting unfair trade practice by not offering and delivering the actual, physical possession of the said booked unit even after receiving more than the BSP, till date. The complainant sent legal notice dated 14.09.2020 to the opposite party but all in vain. The aforesaid act of opposite parties amounts to deficiency of service and hence the complaint. The complainant has prayed for directions to the opposite parties to:
i) hand over the physical possession in fully finished/furnished IT/ITES unit bearing NO. 423, 4th floor, Tower-AZURE-02, super area 650 sq. ft. approx. in the said project “RPS-Infinia”, Sector-27C, Mathura Road, Faridabad alongwth all development and other basic amenities as per terms and conditions of the Buyer’s Agreement alongwith compensation as per terms and conditions of the Buyer’s agreement for delaying in handing over the physical possession of the booked unit and/or.
ii) refund entire amount of Rs.42,25,217/- alongwith interest @ 18% p.a. from the date of payment till realization, paid by the complainant to the opposite party as sale consideration etc. of IT/ITES unit bearing NO. 423, 4th floor, Tower-AZURE-02, super area 650 sq. ft. approx. in the said project “RPS-Infinia”, Sector-27-C, Mathura Road, Faridabad.
b) pay Rs. 5,00,000/- as compensation for causing mental agony and harassment .
c) pay Rs. 55,000 /-as litigation expenses.
b) pay Rs. 5,00,000/- as compensation for causing mental agony and harassment .
c) pay Rs. 55,000 /-as litigation expenses.
2. Opposite party put in appearance through counsel and filed written statement wherein Opposite party refuted claim of the complainant and submitted that the project i.e. Tower NO. Azure-02/T-03 in which the said unit i.e NO. 0423, RPS Infinia, 12/6 Mile Stone, Mathura road, Sarai Khwaja, Faridabad having tentative super area of 650 sq. ft. was situated, which was subject matter of the present complaint was registered under HRERA vide registration NO. 198 of 2017 dated 15.09.2017 and in terms thereof, the date of completion of the project/unit was declared as 14.09.2023, It was submitted that despite the slowdown in real estate industry, periodic ban on construction imosed by National greed Tribunal, Delhi form time to time each year since 2015, the blanket ban on construction imposed by the Hon’ble Supreme Court from November, 2019 to February, 2020, the lockdown imposed by the Government of India owing to COVID-19 and the resultant migration of labour form the site, structure work of tower and all the three basements got completed and remaining work in the tower was being undertaken and was expected to be completed soon. It was submitted that the allotment of said unit was made in favour of complainant on the terms and conditions of the Buyer’s Agreement dated 12.06.2013 which was in an arbitration agreement as it contained an arbitration clause. The opposite party conceived to develop an IT/ITES colony in collaboration with land owners and with a view to execute the same, the opposite party entered into collaboration agreements with the land-owning companies. An application for grant of licence to set the said IT/ITES colony in the name and style of RPS INFINIA (Previously-RPS OXYPARK) over a parcel of land measuring 7,587 acre situated at 12/6 mile stone, Main Mathura road, Faridabad was submitted before the Director, Town and Country Planning, Haryana at Chandigarh which the DTCP was pleased to grant license bearing NO. 19 dated 10.03.2010 under the provisions of the Haryana Development and Regulation of Urban Areas Act, 1975 and the Rules, 1976 framed thereunder, to set up an IT/ITES Colony over the said parcel of land measuring 7.587 acre i.e. the said RPS Infinia Colony in order to discharge their obligations, both the opposite party and the DTCP/Authority etc. entered into agreement sin respect of said licences as well as the said IT/ITES colony. The complainant alongwith his property consultant Shikhar Realty Services Pvt. Ltd., SCF-138, ist floor, Sector-14, Mkt., Faridabad – 121007 approached the opposite party and applied for allotment of an IT space/unit vide application dated 04.11.2012 and considering the application duly signed and submitted by the complainant, the said IT/ITES space i.e unit NO.0423 at 4th floor, Tower No. Azure-02/T-03, RPS Infinia (formerly, RPS-OXY Park) having approximate super area of 650 sq. ft. situated t RPS Infinia, 12/6, Milestone, Mathura Road, Sarai Khawaja, Faridabad was provisionally allotted in favour of the complainant vide allotment letter dated 25.06.2013 for a total sale price of Rs.48,78,750/- calculated @ Rs.6500/- per sq. ft. including other charges towards specification charges, lawn/green facing charges, external development charges (EDC), Infrastructure development, Executive club membership, interest free maintenance security and excluding additional charges including but not limited to taxes and other charges levied by the government authorities etc. to that effect, the said Buyer’s agreement dated 12.06.2013 containing the terms and condition of allotment was executed by the opposite party on one hand and the complainant on the other. It was submitted that in terms of clause 18 of the Buyer’s agreement dated 12.06.2013, the opposite party had to make an endeavor to give possession of the said unit within 36 months with a grace period of 6 months from the date of execution of the Buyer’s agreement or from the date of getting various sanctions from the concerned authorities required for commencement of construction of the project whichever was later, exclusive of the time taken by the competent authorities towards various approval such as issuance of the occupation certificates/completion certificates etc. and subject to force majeure circumstances and subject to receipt of all the payments as per payment plan and other charges due and payable up to date of the offer of possession. It was specifically agreed, understood and confirmed by the parties that in case of delay in delivery of possession of the said unit attributable to the opposite party, the complainant was entitled to get compensation at specified rate which was agreed to be determined at the time of execution of conveyance deed. Thus, the mechanism for compensation on account of delay in completion of unit was categorically stipulated in the Buyer’s Agreement and the parties were bound by the same, As per clause NO.20 of Buyer’s Agreement dated 12.06.2013, it was agreed that if the complainant was entitled for compensation, the same shall be determined only at the time of execution of the conveyance deed and the opposite party will be obliged to perform its obligations. In terms of allotment vis-à-vis the said unit, the time linked payment plan was opted by the complainant and when the installments became due to the complainant as per the agreed plan, the opposite party duly intimated the complainant alongwith due date of demand, as delay in making payment of due installment adversely affects the progress of the project and development work gets jeopardized. As on date, the complainant had emitted an amount of Rs.42,25,217/- inclusive of service tax in installments against the said unit. Apart from the above referred installments, two more installments as per time linked payment plan were yet to be issued to the complainant which were to be remitted by the complainant as and when they stand due and payable.
a) On completion of External Façade: dues will consist of 5% of Basic Sale Price + alongwith dues against ECC/FFC etc. as per agreed terms.
b) On offer of possession: dues will consist of 5% of Basic Sale Price + IFMS + 5% of specification charges alongwith dues against ECC/FFC etc. as per agreed terms.
Meanwhile, the Real Estate (Development and Regulation) Act, 2016 was enacted and subsequently in the year 2017, the Haryana Real Estate (Regulation and Development) Rules, 2017 came into force. Being a law-abiding entity, the opposite party, in consonance with the requirements of section 4 of RERA Act. 2016read with rules framed there under, applied to the competent authorities and got the said Tower No. T-03, RPS Infinia registered vide registration NO. 198 of 2017 dated 15.09.2017. As per the Registration certificate, the completion date for Tower No. T-03, RPS Infinia was declared as 14.09.2023, however, keeping in view the arrangement of requisite funds as availed from a financial institution for the purposes as also the terms of RERA, the construction of the said unit was expected to be completed soon i.e. much prior to the date declared under RERA and be delivered on receipt of requisite occupation certificate. Opposite party denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.
3. The parties led evidence in support of their respective versions.
4. We have heard learned counsel for the parties and have gone through the record on the file.
5. In this case the complaint was filed by the complainant against opposite party– RPS Infrastructure with the prayer to: i) hand over the physical possession in fully finished/furnished IT/ITES unit bearing NO. 423, 4th floor, Tower-AZURE-02, super area 650 sq. ft. approx. in the said project “RPS-Infinia”, Sector-27C, Mathura Road, Faridabad alongwth all development and other basic amenities as per terms and conditions of the Buyer’s Agreement alongwith compensation as per terms and conditions of the Buyer’s agreement for delaying in handing over the physical possession of the booked unit and/or.
ii) refund entire amount of Rs.42,25,217/- alongwith interest @ 18% p.a. from the date of payment till realization, paid by the complainant to the opposite party as sale consideration etc. of IT/ITES unit bearing NO. 423, 4th floor, Tower-AZURE-02, super area 650 sq. ft. approx. in the said project “RPS-Infinia”, Sector-27-C, Mathura Road, Faridabad. b) pay Rs. 5,00,000/- as compensation for causing mental agony and harassment . c) pay Rs. 55,000 /-as litigation expenses.
To establish his case the complainant has led in his evidence, Ex.CW1/A – affidavit of Sanjeev Garg, Ex.C-1 – Receipt, Ex.C2 – Buyer’s agreement, Ex.C-3 – Allotment letter, Ex.C-4 to 22 – receipts, Ex.c-23 – legal notice, Ex.C-24 & 25 – postal receipts, Ex.C-26 – Acknowledgement card,
On the other hand counsel for the opposite party strongly agitated and
opposed. As per the evidence of the opposite party EX.R1/ - affidavit of Rajesh Jain s/o Shri S.P.Jain aged about 47 years, authorized representative, RPS Infrastructure Ltd., 1117-1120, 11th floor, Tower-B, DLF Towers, Jasola District Centre, New Delhi, Ex.R1/1 – Certificate of Incorporaton,, Ex.R1/2 – resolution,, Ex.R1/3 – Buyer’s Agreement,, Ex.R1/4 – Form LC-V – licence No. 19 of 2020, Ex.R1/5 (colly) – Agreement by owner of land intending to set up it park, Ex.R1/6 – letter dated 02.09.2010,Ex.R1/7 – allotment letter, Ex.R1/8 – Registration certificate of project letter dated 15.09.2017,
6. In this complaint, the complaint was filed by the complainant with the prayer of i) hand over the physical possession in fully finished/furnished IT/ITES unit bearing NO. 423, 4th floor, Tower-AZURE-02, super area 650 sq. ft. approx. in the said project “RPS-Infinia”, Sector-27C, Mathura Road, Faridabad alongwth all development and other basic amenities as per terms and conditions of the Buyer’s Agreement alongwith compensation as per terms and conditions of the Buyer’s agreement for delaying in handing over the physical possession of the booked unit and/or.ii) refund entire amount of Rs.42,25,217/- alongwith interest @ 18% p.a. from the date of payment till realization, paid by the complainant to the opposite party as sale consideration etc. of IT/ITES unit bearing NO. 423, 4th floor, Tower-AZURE-02, super area 650 sq. ft. approx. in the said project “RPS-Infinia”, Sector-27-C, Mathura Road, Faridabad.
7. Counsel for the opposite party argued at length and also stated that his project is registered under RERA. As per RERA the delivery of the possession of the said unit is due on June 2023. The project is monitor by the RERA Authority .
Shri Rajesh Jain, AR on behalf of the opposite party has also suffered a statement that “the unit has been booked by the complainant under construction linked payment plan. The construction of the project is complete and possession will be given after receipt of occupation certificate from the competent authorities. Opposite party undertake to comply with the agreement terms executed with the complainant including grant of compensation for delay in offering possession. Opposite party is ready to give possession of unit to the complainant for fit out work for any delay in possession of the unit the compensation will be given as per the clause No.20 of the Buyer’s Agreement executed between the parties.”
8. After going through the statement of AR on behalf of the opposite party as well as evidence led by the opposite party, the possession of the said unit is due on June 2023. It is pre-mature for the delivery of the possession. Statement made by Shri Rajesh Jain, AR on behalf of opposite party that they are ready to give the possession of the unit in question to the complainant for fit out work and also they are ready to pay the delay possession penalty in clause No. 20 as per Buyer’s Agreement. Earlier Shri Ranbir Singh, counsel for the complainant has suffered a statement that refund may kindly be granted as prayed for in the complaint excluding covid period compensation alongwith interest @ 6% against total amount
9. After going through the evidence led by the parties, the Commission is of the opinion that the complaint is disposed off with the direction to opposite party to deliver the possession of the unit on or before June 2023 to the complainant and failing which they will refund the amount with interest @ 6% excluding Covid period on the deposited amount till its realization. The opposite party is also directed to pay Rs.5500/- as compensation on account of mental tension, agony and harassment alongwith Rs.5500/- as litigation expenses to the complainant. Compliance of this order be made within 30 days from the date of receipt of copy of order. Copy of this order be given to the parties concerned free of costs and file be consigned to record room.
Announced on: 15.11..2022 (Amit Arora)
President
District Consumer Disputes
Redressal Commission, Faridabad.
(Mukesh Sharma)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
(Indira Bhadana)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
