STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
HARYANA PANCHKULA
Date of Instituion:28.03.2018
Date of final hearing:10.04.2023
Date of pronouncement:12.04.2023
Consumer Complaint No.199 of 2018
IN THE MATTER OF
Tanuj Kapur S/o Shri Narender Kapur, R/o A-102, Hindon Apartments, Plot-25, Vasundhra Enclave, Delhi-110096.
.….Complainant.
Through counsel Mr. S.S. Gill, Advocate
Versus
1. Ramprastha Promoters & Developers Private Limited, having its office at 114, Sector-44, Gurgaon, Haryana-122002 through its Managing Director, Shri Balwant Chaudhary Singh.
2. Ramprastha Promoters & Developers Private Limited, having its registered office at C-10, C-Block Market, Vasant Vihar, New Delhi-110057 through its Directors, Shri Sandeep Yadav and Shri Arvind Walia.
….Opposite parties No.1 & 2.
Through counsel Shri Rohit Rana, Advocate
3. Blue Bell Proptech Pvt. Ltd., having its registered office at C-10, C-Block Market, Vasant Vihar, New Delhi-110057 through its Directors, Shri Sandeep Yadav and Shri Arvind Walia and Shri Amit Yadav.
….Opposite party No.3.
Proceeded against ex-parte.
CORAM: S.C. Kaushik, Member.
Present:- Mr. S.S. Gill, counsel for the complainant.
Mr. Rohit Rana, counsel for opposite parties No.1 & 2.
Opposite party No.3 proceeded against ex-parte vide order dated 23rd May, 2019.
O R D E R
S.C. KAUSHIK, MEMBER:
The brief facts giving rise for the disposal of the present complaint are that complainant and his father jointly applied for a residential apartment of 3 BHK, having super area of 1725 sq. ft. in the project of opposite parties (‘OPs’) under the name and style of “SKYZ” situated in the integrated township called “Ramprastha City”, in Sector-37D, Gurgaon. On 23.08.2011, complainant booked an apartment bearing No.1704, 17th Floor, Tower-F for total sale consideration of Rs.70,87,875/-. Complainant paid total amount of Rs.64,10,853/- to the OPs on different dates as per their demands. Apartment Buyer’s Agreement was also executed between the parties on 05.09.2013. As per the said agreement, possession of the said apartment was to be delivered by August, 2014 and in case of any delay in delivering the possession, the OPs are liable to pay Rs.5/- per sq. ft. per month of the super area. It is alleged by the complainant that OPs failed to deliver the possession as per Buyer’s Agreement. Complainant also made several correspondence with the OPs after the stipulated date, but they only kept giving assurances. He also served legal notice dated 10.04.2017 upon the OPs regarding possession of apartment and compensation on account of delay in handing over the possession, but they did not reply to the same. Thus, there was deficiency in service on the part of the OPs. The complainant prayed that OPs be directed to hand over the possession of apartment in question complete in all respect alongwith interest @ 12% p.a. on the amount already deposited by the complainant on account of delay in delivering the possession and other reliefs as prayed for.
2. Notice of the complaint was issued against the Ops, upon which OPs No.1 & 2 had appeared and filed their joint written statement. However, OP No.3 did not appear despite service, so ex-parte proceedings were initiated against it vide order dated 23rd May, 2019. Ops No.1 & 2 in their written version submitted that the complaint is not maintainable as the complainant is 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 complainant booked a three BHK apartment having super area of 1725 sq. ft. in their project and Flat No.1704, Tower/Block-F, 17th Floor for total sale consideration of Rs.70,87,875/- was allotted to the complainant. It was also admitted that Apartment Buyer’s Agreement dated 05.09.2013 was executed between the parties. The complainant had opted construction linked plan. As per the commitment the possession was to be delivered by August, 2014 with a grace period of 120 days from the execution of said agreement. However, as per clause 15(b) of the said agreement, date of possession shall be automatically extended subject to the terms of clause-31 of said agreement and complainant had signed the same after careful perusal of said agreement. It is submitted that delay in offering the possession had occurred due to the reasons beyond the control of OPs. Ops further submitted that the complainant himself have defaulted in making payments as the total sale price of the unit was Rs.70,87,875/- and he had paid only Rs.64,10,853/- towards the total cost of the unit. Other allegations made in the complaint were also denied. Thus, there was no deficiency in service on the part of the Ops No.1 & 2.
3. When the complaint was posted for recording evidence of the parties, complainant has tendered in evidence his affidavit 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-11 and closed the evidence on behalf of complainant.
4. On the other hand, learned counsel for OPs No.1 & 2 has tendered into evidence affidavit of Shri Tarun Arora, Authorized Representative of OPs No.1 & 2 as Ex.OP-A alongwith other documents Ex.OP-1 to Ex.OP-3 and closed the evidence on behalf of Ops No.1 & 2.
5. The arguments have been advanced by Mr. S.S. Gill, learned counsel for the complainant and Mr. Rohit Rana, learned counsel for Ops No.1 & 2. 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 averment raised in the complaint and the including the contentions put forth by the learned counsel, the foremost question which requires adjudication by this Commission is as to whether the present complainant is entitled to get physical possession of the flat in question or not?
7. While unfolding the arguments, it has been argued by Mr. S.S. Gill, Advocate, learned counsel for the complainant that as far as the executing of Apartment Buyer’s Agreement dated 05th September, 2013 (Ex.C-3) and complainant having in all paid an amount of Rs.64,10,853/- (Ex.C-2 colly) to the OPs are concerned there is no dispute about the same. It is also undisputed that the total sale price of the flat in question was Rs.70,87,875/-. As per the said Agreement and the terms and conditions incorporated therein, possession of the unit was to be handed over by August, 2014 and in case of delay in delivering the possession, he/she shall be liable to get compensation @ Rs.5/- per sq. ft. per month for the super area. However, the OPs have failed to deliver the possession of flat in question on the promised date despite the fact that the complainant had already deposited an amount of Rs.64,10,853/- i.e. 85% of the total cost of the flat. In these circumstances, the complainant had no other option, but, to knock the door of this Commission for getting the possession of flat in question. In support of his version also placed reliance upon the judgment of Hon’ble National Commission, passed in Consumer Complaint No.427 of 2014 titled as “Shri Satish Kumar Pandey & Anr. Vs. M/s Unitech Ltd.” wherein in it has been held that:-
“The opposite party shall deliver possession of the respective flats of the complainants to them on or before the last date stipulated by them.”
8. On the other hand, Mr. Rohit Rana, learned counsel for OPs No.1 & 2 has argued that the complainant booked a three BHK apartment having super area of 1725 sq. ft. in their project and Flat No.1704, Tower/Block-F, 17th Floor for total sale consideration of Rs.70,87,875/- was allotted to the complainant. It is admitted that Apartment Buyer’s Agreement dated 05.09.2013 came into existence between the parties and complainant had opted for construction linked plan. As per the commitment the possession was to be delivered by August, 2014 with a grace period of 120 days from the execution of said agreement. He further argued that OPs have been prevented from completion of the apartment due to various force majeure circumstances which were beyond the control of OPs. However, as per clause 15(b) of the said agreement, date of possession shall be automatically extended subject to the terms of clause-31 of said agreement and complainant had signed the same after careful perusal of said agreement. He further argued that total sale price of the unit was Rs.70,87,875/- and the complainant had paid only Rs.64,10,853/- towards the total cost of the unit.
9. In view of the above submissions and after careful perusal of the entire record, it is not in dispute that upon floating a project by the OPs, a flat was purchased by the complainant for total cost of Rs.70,87,875/- against which an amount of Rs.64,10,853/- was paid. It is also not in dispute that Apartment Buyer’s Agreement dated 05.09.2013 came into existence between the parties. As per said agreement, the possession of the flat was to be delivered by August, 2014, complete in all respect. To the utter surprise of this Commission it is pity that inspite of the fact that OP having received 85% of the total cost of plot in question, failed to deliver the possession of the same after the lapse of a passing of approximately 8 years of the expiry of stipulated period. As such, there was a clear breach of terms and conditions of the Apartment Buyer’s Agreement dated 05.09.2013 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 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 was delayed as in the present case. When the project is not complete as such, this Commission is of the considered opinion that there was deficiency in service of OPs and thus, complainant is well within his legal rights to get the physical possession of the flat in question. Even otherwise also, there is a strong element of the physical and mental agony caused to the complainant for investing a huge amount and still having been deprived of and not being put into possession of the same and it was under these constrained circumstances, they had to knock the doors of this Commission even for seeking their legitimate relief. 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. 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 hand over the physical possession of three BHK flat bearing No.1704, Tower-F, 17th Floor, having super area of 1725 sq. ft., in the project of OPs namely “SKYZ”, situated in the integrated township called “Ramprastha City” in Sector-37D, Gurgaon, complete in all respects, within a period of 45 days from the date of issuing the copy of this order and before taking over the possession of the apartment, the complainant shall pay the entire outstanding dues to the developer. Further, the OPs are directed to pay 9% p.a. interest on the amount, which the complainant had already deposited, on account of delay in delivering the possession of flat in question as per the Apartment Buyer’s Agreement. It is further clarified that in case OPs fail to pay the awarded interest within the stipulated period of 45 days then, in that eventuality, they will be liable to pay interest @ 12% p.a. The complaint stands allowed in the manner indicated above.
11. 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. A copy of this order be provided to all the parties free of cost as mandated by provisions of the Consumer Protection Act, 2019. This order be uploaded forthwith on the website of the Commission for perusal of the parties.
13. Application(s), pending, if any, stand disposed of in terms of the aforesaid order.
14. File be consigned to record room alongwith a copy of this order.
Pronounced on 12th April, 2023
S.C Kaushik,
Member
Addl. Bench-III
R.K
