District Consumer Disputes Redressal Commission ,Faridabad.
Consumer Complaint No.223/2020.
Date of Institution: 29.07.2020.
Date of Order: 15.11.2022.
Rajiv Sharma S/o late Shri K.R.Sharma, Age 46 years, resident of flat No. 105, Aurora Apartments, Omaxe Heights, Sector-86, Faridabad District Faridabad.
…….Complainant……..
Versus
1. RPS Infrastructure Ltd., through its Managing Director and Director(s), RPS Auria Residencies, Sector-88, Faridabad, Haryana, Second address:- 117-1120, 11th floor, Tower-B, DLF Towers, Jasola District Center, new Delhi – 110 025.
2. Rakesh Chand Gupta, Managing Director/Director & Vice President, RPS Infrastructure Ltd., Sector-88, Faridabad, Haryana, Second address:- 1117-1120, 11th floor, Tower-B, DLF Towers, Jasola District Center, New Delhi 0 110 025.
3. Achal Gupta, Director, RPS Infrastructure Ltd., 111, Sector-88, Faridabad, Haryana, Second address:1117 – 1120, 11th floor, Tower-B, DLF Towers, Jasola Distrct Center, New Delhi – 110 025.
…Opposite parties……
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. Nitish Sharma, counsel for the complainant.
Sh. M.P.Dagar, counsel for opposite parties Nos.1 to 3.
ORDER:
The facts in brief of the complaint are that opposite party No.1 through its authorized signatory vide letter dated 01.05.2013 issued an offer of allotment of unit in lieu of priority NO. P-0140 and the complainant alongwith his mother being the co-applicant deposited a sum of Rs.5 lacks on 06.05.2013 through two separate cheques No. 696702 dated 17.03.2013 & cheque No. 696704 dated 10.04.2013 vide receipts No. 37052 & 37053 dated 06.05.2013. On 19.04.2014, the opposite party executed an apartment buyer agreement with the complainant and his mother/co-applicant and the complainant had been allotted apartment No. 0406 on 4th floor in tower No. T-04 having covered area of 1288 sq. ft and super area 1565 sq. ft. approx. for a basic sale price of Rs.56,11,464/-. As per the said agreement dated 19.04.2014 the opposite party was to complete the construction and handover the possession of the apartment/flat within 48 months from the date of execution of the agreement or from the date of getting requisite sanction from the concerned authorities, for commencement of the construction of the project which was later. It was further submitted as per the clause 22 of the said agreement if there was any delay on the part of the allottee in taking over the possession of the said unit then the holding charges @ Rs.10/- per sq. ft. per month would be charged form the complainant. Further as per clause 29 of the said agreement, in case of any delay by the company in completion of the construction
of the said unit and the complainant not been in default of the term and conditions set out in the agreement, the company should pay compensation at the rate of Rs.10/per sq. ft. per month. The company had raised various demands for deposit of booking amount and amount of installments alongwith service tax from time to time and the complainant deposited as per the payment plan opted for the allotment of the said apartment. The complainant had deposited a sum of Rs.58,00,467/- till 08.12.2015. It was further submitted that the complainant also deposited an amount of Rs.2950/- vide receipt No. 57471 dated 15.06.2018 on account of ADD CHGS + GST as per the demand raised by the opposite party. The complainant had deposited the amount of installments as demanded from him from time to time alongwith all the other taxes etc. The said fact was clear from the letter dated 16.09.2013 issued by the company to the complainant and his mother that no amount was outstanding against them. Despite the fact that the complainant had already made the entire payment to the opposite party way back on 08.12.2015 but the possession of the apartment had not been handed over to him till date despite his repeated requests and email’s sent to the opposite party, whereas as per the agreement the possession of the apartment/flat was to be delivered within 48 months from the date of agreement. The complainant and his mother/co-applicant submitted an application dated 10.05.2018 for deleting the name of Smt. Sudarshan Sharma- applicant NO.2 from the letter of allotment and to transfer her share in favour of the complainant/applicant No. In view of the request made by the complainant the allotment letter dated 22.06.2018 had been issued in favour of the complainant and there was no dues at that time against the complainant and there after new builder buyer agreement dated 21.06.2018 in favour of the complainant was got executed. After the deletion of the name of Smt. Sudershan Sharma/applicant No.2, a new agreement dated 21.06.2018 on the basis of his
earlier application dated 03.04.2013 was got executed by the opposite party from the complainant. Although the complainant has already deposited the entire rather excess as amount as agreed at the time of offer of allotment of the apartment and the opposite party failed to deliver the possession and even the construction at the site had not been completed till date and on the other hand the opposite party vide letter dated 03.03.2020 had informed the complainant that a sum of Rs.6,29,421/- to be deposited on or before 18.03.2020, which was alleged to be outstanding against the complainant. A bare perusal of the letter dated 03.03.2020 would show that the demand had been made “on completion of internal plaster work” from which was evident that the project was not completed till date and the complainant had already paid the total price of the apartment. As per the agreement the possession of the apartment was to be delivered within 48 months from the date of agreement but the opposite party failed to comply the condition of allotment letter/agreement. Further the opposite party vide letter dated 29.06.2020 again issued a letter for the demand of said amount of Rs.6,29,421/- and also informed that the delay payment of installment attracts interest/penal interest. In the demand letter dated 03.03.2020 the opposite parties demanded an amount of Rs.16,800/-, on account of club membership and Rs.33,600/- on account of car parking and also demanded arrear of Rs.1,10,139/- illegally and unlawfully which were totally vague and the opposite parties were well aware of this fact that they had executed a new builder buyer agreement dated 21.06.2020 which clearly proves that there was no dues pending against the complainant hence the question of raising the arrears of Rs.1,10,139/- did not arise at all Further the opposite parties had given the rebate from club membership to the complainant and despite of that they were demanding the charges. 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:
a) Refund the entire amount of Rs.58,03,418/- paid by him alongwith 24% p.a. interest from the date of payment till the date of realization alongwith the rent as an amount of Rs.10/- per sq. ft. per month as per clause 29 of the agreement alongwith the amount of rent paid by the complainant of the rented accommodation.
b) stay the operation/demand made by opposite parties vide letter dated 03.03.2020 till the decision of the present petition.
c) pay Rs. 10,00,000/- as compensation for causing mental agony and harassment .
d) pay Rs. 1,00,000 /-as litigation expenses.
2. Opposite party No.1 put in appearance through counsel and filed written statement wherein Opposite party No.1 refuted claim of the complainant and submitted that the Tower No. T-4 under RPS Auria Project in which the un it in question was located, was registered under the provisions of the Real Estate Act, 2016 and HRERA Rules, 2017 vide registration No. 200 of 2017 dated 15.09.2017 and in terms thereof, the date of completion of the project/unit was declared as 14.09.2021. It was submitted that the Hon’ble Real Estate Regulatory Authority, Panchkula had seized of the issue regarding development and delivery of the Tower NO.4 under the Auria Project in which the unit in question was located and as per development schedule, the said Tower 4 under the Auria project including the said unit was to be completed very soon. It was submitted that the allotment of said unit was made in favour of the complainant as per the terms and conditions of the Principal Buyer’s agreement dated 19.04.2014 and secondary Buyer’s Agreement dated 21.06.2018 containing an arbitration clause to resolve the dispute between the parties. The complainant and his mother Mrs. Sudershan Sharma alongwith their property consultant namely, Modi property dealer
approached the opposite party and applied for allotment of a residential unit. Considering the application dated 03.04.2013 duly signed and submitted by the complainant and his mother, the said residential unit i.e unit No. 0406 in Tower No.T-4, RPS Auria having approximate covered were 1288 sq. ft./super area of 1565 sq. ft. situated at RPS Auria, Sector-88, grater Faridabad, Faridabad was provisionally allotted jointly in favour of the complainant and his mother vide allotment letter dated 25.04.2014 for a Basic Sale Price (BSP) of Rs.58,45,275/- calculated @ Rs.3735/- per sq. ft. with a discount of 4% amounting to Rs.2,33,811/- i.e. fro net BSP of Rs.56,11,464/- (Basic Sale price was calculated as per tentative super area 1565 sq. ft and the super area was subject to revision i.e. increase/decrease as per final area at the time of completion of construction issuance of occupation certificate and offer of possession) alongwith development charges (DC); Rs.1,50,000/-, Rs.1,56,500/- towards preferential location charges and additional charges of Rs.8,15,175/- i.e. Rs.7,35,550/- towards Club Membership; Rs.3,00,000/- towards one covered car parking allocation charges; Rs.60,000/- towards power back up installation charges -2KVA; rs.2,26,925/- towards External Electrification charges (EEC) & Fire Fighting charges (FFC); and Rs.78,250/- towards interest free maintenance security (IFMS) aggregating the net sale price to Rs.73,18,689/- besides applicable taxes, stamp duty, registration charges etc. besides applicable taxes, stamp duty, registration charges etc. payable by the complainant towards sale consideration in respect of said unit which were also based on the approximate super area. To that effect, the requisite Buyer’s Agreement dated 19.04.2014 containing the terms and conditions of allotment, contained illustratively in the application form dated 03.04.2013 duly executed by the opposite party on one hand and the complainant and his mother on the other. It was submitted that the said covered area/super area were tentative and were subject to final measurement at the time of completion of unit and offer of possession.
Prior to allotment of the said unit in their favour, the complainant and his mother Mrs. Sudershan Sharma alongwith their property Consultant Modi Property Dealer approached the opposite party and acquired complete details of the said RPS Auria Residential group Housing Colony Project in which the said unit was located, being developed by the opposite party in terms of said licence NO. 124 dated14.06.2008. The opposite party furnished each and every details/document i.e. title documents, licence, and other relevant documents, in respect of the said project to the complainant. The opposite party also explained to the complainant that the said residential group housing colony project – RPS Auria was being developed in terms of the said licence and in accordance with provisions of the said applicable laws and in view of the same, the Internal Development of the said Residential Group Housing Colony Project – RPS Auria was to be developed and constructed by the opposite party while the statutory obligation to develop the external and peripheral services of the said Residential Group Housing colony Project – RPS Auria viz., External/Sector/Main Road, Supply water Line, sewer Line, Electricity, etc. was cast upon the DGTCP, Haryana Urban development Commission and other Competent Authorities of State/Central Govt./Agencies for which, as demanded by the DGTCP, the requisite cost & charges had been paid/deposited with DGTCP. The complainant was also apprised of the agreements entered into between the opposite party and the DGTCP/Commission in respect of the said licence for the development of the said Residential Group Housing Colony Project- ROS Auria. The complainant and his mother out of their own sweet will, submitted the application for allotment of the said residential unit and requested the opposite party to allot the said unit in their favour i.e. unit No. 0406 which was tentatively allotted in their favour vide allotment letter dated 25.04.2014. Subsequent to the allotment of the said unit, the complainant and his mother jointly applied for a loan of Rs.26,50,000/- from State Bank of India
having their branch office at RACPC, Sector-16, Faridabad (SBI) by securing the said unit under finance by way of mortgage of all rights, title, benefits that would accrue from the said unit till the duration of the said loan and to that effect a Tripartite Agreement among the complainant as borrower, the opposite party as builder and State Bank of India as SBI was signed and executed on01.08.2015, hereinafter referred to as “TPT”. However, the said Bank could not disburse the loan amount in time and the terms of TPT did not come into force.
It was specifically agreed, understood and confirmed by the parties that in case of any delay by the opposite party in completion of construcit0on of the said unit and the complainant not being in default of the terms and conditions as set out in the Buyer’s Agreement dated 19.04.2014, the company shall pay compensation @ Rs.10/- per sq. ft. per month or part thereof to the allottee. 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 construction of the said unit was categorically stipulated in the Buyer’s agreement duly signed and executed by the complainant and the opposite party and the parties were bound by the same.
In terms of allotment in respect of the said unit, the construction linked payment plan was opted by the complainant and when the installments became due to the complainant as per stages of construction, the opposite party duly intimated the complainants alongwith due date of demand as delay in making payment of due instlalment adversely affects the progress of the project and development work gets jeopardized.
It was submitted that the above table lucidly adumbrates the default on the part of complainant in not remitting the full and timely amount due and payable against each installment thereby resulting in accumulation of arrears
amounting to Rs.1,0,139/- to be paid by the complainant alongwith remaining installments payable as per the terms and conditions stipulated in the Buyer’s Agreement. It was submitted that the claim of the complainant that there were no arrears pending against him stands negated by the above table. It was submitted that the complainant and his mother, vide letter dated 10.05.2018 requested the opposite party to make necessary arrangements for deleting the name of the mother of the complainant from the allottees of the Unit i.e. T-4-0406 and making the complainant the sole owner of the said unit and he submitted an undertaking dated 10.05.2018 for deletion of name of second applicant i.e. his mother Mrs. Sudershan Sharma. Pursuant to the said application, the opposite party and the complainant entered into a new Buyer’s Agreement dated 21.06.2018 making complainant the sole allottee of the said unit and stip0ulating terms and conditiosn in consonance thereof. It was pertinent to mention that a new Allotment letter dated 22.06.2018 was also issued in favour of the complainant accordingly, terms of previous allotment was superseded/renewed terms of Buyer’s Agreement dated 21.06.2018 and allotment letter dated 22.06.2018 prevails. It was submitted that the mechanism to delay with the delay, if any, in delivery of unit was categorically stipulated in the terms of allotment/Buyer’s Agreement and the parties were bound by the same. Since the payment of four more installments were yet to be paid by the complainant prior to getting possession of the said unit, the complaint was not only premature but also devoid of any merit. Opposite party No. 1 denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.
3. Shri Praphull Sinha, counsel for opposite parties Nos.1 to 3 has made a statement that I adopt the written statement filed on behalf of opposite party No.1 also on behalf of opposite parties Nos.2 & 3.
4. The parties led evidence in support of their respective versions.
5. We have heard learned counsel for the parties and have gone through the record on the file.
6. In this case the complaint was filed by the complainant against opposite parties– RPS Infrastructure with the prayer to: a) Refund the entire amount of Rs.58,03,418/- paid by him alongwith 24% p.a. interest from the date of payment till the date of realization alongwith the rent as an amount of Rs.10/- per sq. ft. per month as per clause 29 of the agreement alongwith the amount of rent paid by the complainant of the rented accommodation. b) stay the operation/ demand made by opposite parties vide letter dated 03.03.2020 till the decision of the present petition. c) pay Rs. 10,00,000/- as compensation for causing mental agony and harassment . d) pay Rs. 1,00,000 /-as litigation expenses.
To establish his case the complainant has led in his evidence, Ex.CW1/A – affidavit of Shri Rajiv Sharma,, Ex.C-1 – Company/LLP Master data, Ex.C-2 to 4 – brochure of the project and the price list and floor plans and specifications of the Project RPS Auria, Ex.C-5 – letter dated 01.05.2013, Ex.C-6 – Apartment Buyer’s Agreement, Ex.C-7 (colly) – receipts, Ex.C-8 - letter dated 16.09.2013, Ex.C-9 (colly) – letter dated 10.05.2018,, allotment letter, Ex.C-10 – Buyer’s Agreement, Ex.C-11 (colly) – Tax invoice cum demand letter.
On the other hand, Shri M.P.Dagar counsel for opposite parties Nos.1 to 3 has made a statement on 21.09.2022 that the reply alongwith documents already filed by the opposite party may be trated as evidence on behalf of opposite parties Nos.1 to 3, vide order dted 21.09.2022.
7. In this complaint, the complaint was filed by the complainant with the prayer of: a) Refund the entire amount of Rs.58,03,418/- paid by him alongwith 24% p.a. interest from the date of payment till the date of realization alongwith the rent as an amount of Rs.10/- per sq. ft. per month as per clause 29 of the agreement alongwith the amount of rent paid by the complainant of the rented accommodation. b) stay the operation/demand made by opposite parties vide letter dated 03.03.2020 till the decision of the present petition. c)pay Rs. 10,00,000/- as compensation for causing mental agony and harassment . d) pay Rs. 1,00,000 /-as litigation expenses.
8. Counsel for the opposite party argued at length and also stated that the allotment letter was issued earlier on 25.04.2014 in favour nof Shri Rajiv Sharma and Ms. Sudarshan Sharma. Allotment letteer (revised) dated 22.06.2018 was issued by the opposite parties and also stated at Bar that the Buyer’s Agreement was signed on 2106.2018 by both the parties. Time for completion of construction is 48 months of Buyer’s Agreement i.e. 20.6.2022 & possession will be given to the complainant after receipt of occupation certificate from the competent authorities. Counsel for the opposite parties argued that compensation, if any, for Corona period be waived off (March 2020 to February 2022 as done by Supreme Court).
9. During the course of arguments, Shri Nitish Sharma, counsel for the complainant has made a statement that” the complainant is ready and willing to take the time bound possession of the flat/property with regard to apartment buyers agreement dated 19.04.2014 subject to receipt of compensation on delayed possession in terms of clause 29 of the aforementioned agreement. Covid period will be deducted for the same”.
On the other hand, counsel for the opposite party – RPS has also field an application for direction to the complainant to take possession of the flat and to dispose-off the complaint.
10. After going through the evidence led by the parties and the statement of Shri Nitish Sharma, counsel for the complainant as well as the application filed by opposite party for direction to the complainant to take possession of the flat, the Commission is of the opinion that opposite parties are directed to deliver the possession of the flat/property with regards to apartment buyers agreement dated 19.4.2014. But it was revised on 22.06.2018. Time for completion of construction was 48 months of Buyer’s agreement i.e.20.06.2022. Date of institution of the complaint was 29.07.2020 which shows it was a premature.
11. After going through the evidence led by the both of the parties, the Commission is of the opinion that the complaint is disposed off with the direction to opposite parties to deliver the possession after expiry of the tenure of the Builder Buyer’s Agreement. In case of non compliance, after expiry of builder Buyer’s Agreement, opposite parties will pay the delay possession penalty as per clause 29 of Builder Buyer’s Agreement. The complaint is disposed off accordingly. There are no order as to costs. 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.
