Haryana

StateCommission

CC/474/2017

DR.M.V.R.L.MURTHY - Complainant(s)

Versus

RAMPRASTHA PROMOTERS AND DEVELOPERS - Opp.Party(s)

SHARAD AGGARWAL

20 Apr 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

  Date of Institution:04.08.2017

                Date of final hearing:20.04.2023

                                                Date of pronouncement: 28.04.2023

 

Consumer Complaint No.474 of 2017

 

IN THE MATTER OF

 

1.      Dr. M.V.R.L. Murthy S/o M.J. Rama Rao, R/o D-5/3, Welcome, Sector-3, Dwarka, New Delhi.

2.      Mrs. M. Sudha, W/o Dr. M.V.R.L. Murthy S/o M.J. Rama Rao, R/o D-5/3, Welcome, Sector-3, Dwarka, New Delhi.

 

                                                                                       .….Complainants

 

Through counsel Mr. Sharad Aggarwal, Advocate

 

Versus

 

Ramprastha Promoters & Developers Pvt. Ltd., Ramprastha City, Sector-37, Gurgram, Haryana-122001 through its Office Incharge.

 

….Opposite party

 

Through counsel Mr.Rohit Rana, Advocate

 

CORAM:   Mr. S.C. Kaushik, Member.

 

Present:-    Mr. Sharad Aggarwal, Advocate for the complainants.

Mr. Rohit Rana, Advocate for the Opposite Party.

 

O R D E R

S. C. KAUSHIK, MEMBER:

 

                    The brief facts giving rise for the disposal of the present complaint are that the complainants on 22.04.2011 applied for booking of an apartment with the opposite party (‘OP’) by paying an amount of Rs.5,52,027/- in its project under the name & style of “SKYZ” situated at Ramprastha City, Sector-37, Gurugram, Haryana. Total sale consideration of the apartment was Rs.68,24,258/- and OP allotted apartment No.1101, 11^th Floor, Tower-B, having super area of 1725 sq.ft. to the complainants. Apartment Buyer Agreement was also executed on 20.10.2011.The complainants made total payment of Rs.58,92,011/- to the OP on different dates. Complainants had opted construction linked plan. As per said agreement, possession of the said apartment was to be handed over by 31^st August, 2014.  The OP had already received payment of more than 90% of the cost, but failed to deliver the possession of the apartment in question rather OP vide its letter dated 04.12.2014 demanded outstanding payment of Rs.2,84,529/- instead of handing lover the possession of apartment in question. However, complainants also served legal notice dated 01.03.2017 upon the OP, but it didn’t reply to the same. The complainants were seeking refund of the deposited amount, but, OP did not consider their genuine request.  Thus, there was deficiency in service on part of the OP.  The complainants prayed that OP be directed to refund the deposited amount i.e. Rs.59,64,603/- alongwith interest at the rate of 12% p.a from the date of possession was supposed to be handed over i.e. 31.08.2014 and to pay Rs.5,00,000/- on account of harassment and unfair trade practice and to pay Rs.1,00,000/- as litigation expenses.

2.                Notice of the complaint was issued against the OP, upon which it appeared and filed its written statement. OP in its written statement submitted that on 22.04.2011, the complaints applied for booking of an apartment by paying an amount of Rs.5,52,027/- in their project under the name & style of “SKYZ” situated at Ramprastha City, Sector-37, Gurugram, Haryana. Total sale consideration of the apartment was Rs.68,24,258/- and apartment No.1101, 11^th Floor, Tower-B, having super area of 1725 sq. ft. was allotted to the complainants. It was also admitted that Apartment Buyer Agreement also came into existence on 20.10.2011. The complainants made total payment of Rs.58,92,011/-. Complainants had opted for construction linked plan. As per the said agreement, possession of the said apartment was to be handed over by 31^st August, 2014. It was further submitted by the OP as per clause 31 of the said agreement, the date of possession shall get extended automatically. The delay in handing over the possession was caused due to the reasons beyond the control of OP. It is further submitted that the OP is not liable to refund any amount as the OP is willing to deliver the possession of apartment in question. Other allegations made in the complaints were denied. Thus, there was no deficiency in service on the part of the OP.

3.                When the complaint was posted for recording evidence of the parties, learned counsel for the complainant has tendered in evidence affidavit of Dr. M.V.R.L. Murthy 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-8 and closed the evidence on behalf of complainants.

4.                On the other hand, learned counsel for OP tendered into evidence affidavit of Shri Tarun Arora, Authorized Signatory of OP as Ex.OP-A alongwith other documents Ex.OP-1 to Ex.OP-3 and closed the evidence on behalf of OP.

5.                The arguments have been advanced by Mr.Sharad Aggarwal, learned counsel for the complainants and  Mr. Rohit Rana, learned counsel for OP. With their kind assistance entire record including documentary evidence as well as whatever evidence had been led during the proceedings of the complaint had also been properly perused and examined.

6.                As per the basic averments taken in the complaint and the reply filed thereto 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 they had already deposited, alongwith the interest or not? 

7.                While unfolding the arguments, it has been argued by Mr. Sharad Aggarwal, learned counsel for the complainants that as far as the execution of the Apartment Buyer’s Agreement Ex.C-1 is concerned, the same is not in dispute.  It is also not in dispute that complainants have paid Rs.59,64,603/- (Ex. C-2) to the OP. It is also not in dispute that the total sale price of the apartment was Rs.68,24,258/-.   As per the Apartment Buyer’s 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 OP by 31^st August, 2014 subject to some reservations. The period within which, the possession of the unit was to be delivered had already expired despite complainants having deposited an amount of Rs.59,64,603/-.  In these circumstances, the complainants had no other option, but to seek refund of the amount alongwith interest, which he had already paid, as they do not think that OP will be able to put them into possession of the apartment.

8.                On the other hand, it has been argued by Mr. Rohit Rana, learned counsel for the OP that the delay in handing over the possession of apartment in question was due the reasons beyond the control of OP and still the OP is willing to hand over the possession of the unit in question to the complainant. It has been further argued that the Apartment Buyer Agreement dated 20.10.2011 was executed between the complainants and OP and the complainants had opted construction linked plan. As per the said agreement, possession of the said apartment was to be handed over by 31^st August, 2014, but as per clause 31 of the said agreement, the date of possession shall get extended automatically. He further argued that since, the delay in handing over the possession was caused due to the reasons beyond the control of OP and still OP is willing to hand over the possession, the OP is not liable to refund any amount. In fact, due to on-going slump in real estate market, complainants were no longer interested in retaining the unit in question, therefore they have filed the present complaint for the refund.  The OP has not committed any breach of agreement. The complainants have no right to demand the refund as builder has not refused to complete the developmental work and offer possession of flat to the complainants. Thus, the complainants are not entitled for the refund and interest 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 OP-builders, a residential unit was purchased by the complainants for a total cost of Rs.68,24,258/- against which an amount of Rs.59,64,603/- has already been paid.  Apartment Buyer’s Agreement dated 20.10.2011 is also not disputed.  As per the agreement, the possession of the apartment was to be delivered by 31^st August, 2014 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 OP.  As such, there is a clear breach of terms and conditions of the Apartment Buyer’s Agreement on part of the OP. It is the normal trend of the developers that a 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, completion of the project and hence the delivery of possession 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 on the part of OP and thus, the complainants are well within their legal rights to get the refund of the amount of Rs.59,64,603/-  (Rs. Fifty nine lakhs sixty four thousand six hundred three only)   which they have already deposited with the OP. Even otherwise also there is a strong element of physical and mental agony caused to the complainants for their having invested a huge amount and still deprived of and not being put into possession of the apartment 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 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 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 the 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 OP is directed to refund the deposited amount of Rs.59,64,603/-  (Rs. Fifty nine lakhs sixty four thousand six hundred three only alongwith interest @ 9%  per annum from  the date of deposit till realization.  In case, there is a breach in making payment of the refund 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 complainant is also entitled to an amount of Rs.50,000/- (Rs. Fifty Thousand Only) as compensation on account of mental and physical agony.  In addition, the complainant is also entitled to a sum of Rs.25,000/- (Rs. Twenty Five 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.              Application(s) pending, if any, stands 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, 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 28^th April, 2023                        

 

                                                                                                S.C Kaushik

                                                                                                            Member                                                                                                                     Addl. Bench

 

R.K