Haryana

StateCommission

CC/120/2017

ALPANA BANSAL - Complainant(s)

Versus

M/S SAMAR ESTATES - Opp.Party(s)

R.C.SHARMA

29 Apr 2022

ORDER

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

                                                Consumer Complaint  No.120 of  2017

Date of the Institution:02.03.2017

Date of Decision:    29.04.2022

 

1. Alpana Bansal W/o Sh.Darshan Bansal R/o H.No.5226/3, Safafa Bazaar, Ambala City.

 

2. Rashmi Aggarwal W/o Sh.Adish Kumar Aggarwal r/o H.No.562, Sector-7, Urban Estate, Ambala City.

 

                                                                   .….Complainants

Versus

Samar Estates Private Limited, SCO-283, Sector 20, Panchkula, through its Managing Director.

                                                          .….Opposite Party

 

CORAM:   Mr.S.P.Sood, Judicial Member

                   Mr.Suresh Chander Kaushik, Member

 

Present:-    Mr.R.C.Sharma, Advocate for the complainants.

Mr.Tarun Gupta, Advocate for the Opposite Party.

 

O R D E R

S P SOOD, JUDICIAL MEMBER:

 

                    The brief facts giving rise for the disposal of the present complaint are that on 07.10.2010,  they (complainants) booked a apartment No. J-204 with opposite party (OP).  The Apartment Buyers Agreement was signed on 09.07.2011 at Panchkula.  The total price of the flat was Rs.46,52,500/-.  They opted construction linked installments payment plan. They paid Rs.41,46,224/- to O.P.     As per clause 32 of the buyers agreement, the possession of the apartments will be handed over to the complainants within a period of 36 months from the date of commencement of construction.   The opposite party was required to handover possession of the apartments by July 2014. The construction work was not completed by the opposite party within the stipulated period.    The period of about six years has already elapsed and opposite party was retaining the hard earned money of complainants and other gullible customers.  Neither the OP has delivered the possession in time nor any compensation is being paid.   There was promise of meager compensation in agreement @ Rs.7/- per sq. ft. per month, but,  the same was quite inadequate and was not at all inconsonance with the penalty for delayed payment in clause 10 of agreement which provides for penalty of interest @ 18% per annum compounded at the time of every succeeding installment. The complainant prayed that OP be directed to  deliver the possession of the residential apartment or to refund the deposited amount, i.e. Rs.41,46,224/- alongwith interest at the rate of 18% p.a; Rs.4,00,000/- as compensation  and Rs.50,000/- as litigation expenses.

2.                Notice of the complaint was issued against the O.P. and the written statement was filed, wherein the O.P. stated that the licence for development of Group Housing Colony was granted to respondent No.1 in the year 2006, whereas complainant booked the apartment on 30.06.2011 and not 07.10.2010. The OP has incurred expenditure of Rs.179.36 crore on construction/development work besides payment of land cost and Rs.30.50 crore towards payment of licence fee, conversion charges,100% EDC and 100% IDC against the total receipt of Rs.94.33 crore from the allottees as on 30.11.2017 and about Rs.267.00 were still overdue from the buyers of Pocket-A i.e. Ess Vee Apartments after adjusting the above said receipts/ advances of Rs.94.33 crore upto 30.11.2017. OP admitted the received payment of Rs.41,46,224/- from 30.06.2011. The complainant opted construction linked installments payment plan. The complainant paid only Rs.41,46,224/- to O.Ps.   The construction started on 15.06.2011.  The delay was occurred due to  non-payments of other allottees. As per the agreement, the complainant did not deposit the installments in time.  O.Ps denied the remaining contents of the complaint and prayed for dismissal.

3.                When the complaint was posted for recording evidence of the parties, one of the complainant-Rashmi Aggarwal in her evidence has tendered the affidavit Ex.CA vide which she has reiterated all the averments taken in the complaint and further tendered the documents Ex.C-1 to Ex.C-21 and closed her evidence.

4.                On the other hand, in order to rebut the evidence led on behalf of the complainants, O.P. has also tendered the affidavit of Mr.Vinod Bagai Ex.OP-A and further tendered the documents Ex. OP-1 to OP-4 and  closed his evidence.

5.                The arguments have been advanced by Mr. R.C.Sharma, the learned counsel for the complainants as well as Mr.Tarun Gupta, the learned counsel for the opposite party.  With their kind assistance the entire record including documentary evidence as well as whatever the evidence had been led during the proceedings of the complaint had also been properly perused and examined.

6.                As per the basic averment taken in the complaint and the reply filed thereto including the contentions raised 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? 

7.                While unfolding the arguments, it has been argued by R.C.Sharma, the learned counsel for the complainants that as far as the executing the buyers agreement  is concerned it is not in dispute.  It is also not in dispute that the basic price of the flat was Rs.46,52,500/-.  A total sum of Rs.41,46,224/- had been paid by the complainants to the  O.P.  As per the buyers agreement  and the terms and conditions incorporated therein including date of delivery of the possession 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.  The period within which, the possession of the flat was to be delivered had already expired despite depositing the amount of Rs.41,46,224/-.  In these circumstances the complainants had no other option, but, to seek the refund of the amount alongwith interest, which they had already paid. 

8.                On the other hand, it has been argued by Sh.Tarun Gupta, the learned counsel for the O.P. that complainant has not paid the installment as per the repayment schedule.  There was a delay in making the payment of the amount.  The total cost of flat was Rs.46,52,500/-.  The complainants had paid total amount of Rs.41,46,224/-.  An amount of Rs.6,98,625/- was still outstanding against the complainants. It is true that the documents were executed between the parties, which includes the buyers agreement, which contains all the terms and conditions for allotment of the flat, for payment of the installments, charging the interest for delayed payment and delivering of possession.  Since there was an unavoidable circumstances and certain reasons which were beyond the control of the O.P., the possession of the flat could not be delivered to the complainants in time.  However on one pretext or the other the possession was not taken and now by taking the shelter of this Commission, the complainant seeks refund of the amount and infact this amount has already been invested for making all developmental activities.  As per terms and conditions of the agreement, the O.P. was bound  to deliver the possession of the apartment within 36 months.  The answering O.P. has not committed any breach of agreement. The complainants have no right to demand the refund as builder has not refused to complete the development work and offer possession of flat to the complainants.    The answering O.P. will offer the possession of the flat to the complainants after completion of development work.  The OP has incurred expenditure of Rs.179.36 crore on construction/development work besides payment of land cost and Rs.30.50 crore towards payment of licence fee, conversion charges,100% EDC and 100% IDC against the total receipt of Rs.94.33 crore from the allottees as on 30.11.2017 and about Rs.267.00 were still overdue from the buyers of Pocket-A i.e. Ess Vee Apartments after adjusting the above said receipts/ advances of Rs.94.33 crore upto 30.11.2017. 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, apartment was purchased by the complainants for a cost of Rs.46,52,500/- out of which an amount of Rs.41,46,224/- (Forty One Lac Forty Six thousand two hundred and twenty four only) has already been paid.  Buyer agreement  is also not disputed.  As per buyer agreement, the possession of the flat was to be delivered within period of 36 months complete  subject to some reservation.   To the utter surprise of this Commission and is  very pity that inspite of the fact that a period of more than 12 years having expired, the possession of the flat has not been delivered by O.P.  As such, there is a clear breach of terms and conditions of the buyers agreement on behalf of the O.P.   It is the normal trend of the developers/O.P. 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 in the present case.  When the project is not complete as such, this Commission is of the considered opinion that there is deficiency in service of opposite party  and thus, complainants are well within their legal rights to get the refund of the amount of Rs.41,46,226/- (Forty One Lac Forty Six thousand two hundred and twenty four only)  which they had already deposited with the O.P..  Even otherwise also there is a strong element of the physical and mental agony caused to the complainants for investing a huge amount and the possession has not been delivered within the stipulated period and under the constraint circumstances, the complainants 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.P. with severe hands who are misusing the funds of the individuals.  As such the question is answered in the affirmative.

 

10.              In the light of the above observation and discussion, there are sufficient grounds to accept the complaint and while accepting the complaint,  the O.P. is directed to refund of the amount of Rs.41,46,224/- (Forty One Lac Forty Six thousand two hundred and twenty four only)  alongwith interest @ 6%  per annum from  the date of respective deposits till realization.   In case, there is a breach in making payment within the stipulated period  of  30 days, in that eventuality, the complainants would further be entitled to get the interest @ 9% 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.11,000/-  (Eleven 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. 

 

April 29th, 2022     Suresh Chander Kaushik,                   S.P.Sood

                             Member                                              Judicial Member                                 

S.K.(Pvt.Secy)