Haryana

StateCommission

CC/296/2017

ASHOK KUMAR - Complainant(s)

Versus

SUNCITY PROJECT PVT.LTD. - Opp.Party(s)

AMAN BANSAL

27 Jul 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

  Date of Institution:09.05.2017

                Date of final hearing:27.07.2023

                                                Date of pronouncement:28.07.2023

 

Consumer Complaint No.296 of 2017

 

IN THE MATTER OF

 

1.      Ashok Kumar son of Shri Krishan Lal Phutela, R/o House No.65, Sector-25, Panchkula.

2.      Shri Prem Lal S/o Shri Krishan Lal, R/o House No.65, Sector-25, Panchkula.

                                                .….Complainants.

Through counsel Mr. G.S. Duhan, Advocate

Versus

M/s Suncity Projects having Corp office at Suncity Business Tower, Second Floor, Golf Course Road, Sector-54, Gurgaon-122002, Haryana through its Managing Director.

….Opposite party.

Through counsel Shri Ashim Aggarwal, Advocate & Ms. Sushma Aggarwal, Advocate.

 

 

CORAM:   S.C. Kaushik, Member.

 

Present:-    Mr. G.S. Duhan, counsel for the complainants.

Mr. Ashim Aggarwal, & Ms. Sushma Aggarwal, Advocates for 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 complainants on 09.09.2010 applied for a residential flat in the housing project of opposite party (“OP”)  under the name & style “Parikrama” situated at Sector-20, Panchkula, Haryana by paying an amount of Rs.7,28,438/- as booking amount. Total cost of the flat was fixed as Rs.48,56,250/- and apartment No.603, 6^th Floor, Tower No.9-A was allotted to the complainants vide allotment letter dated 26.08.2012. Further, the representatives of OP assured complainants that Apartment Buyer’s Agreement would be executed within a few days. Complainants paid a total amount of Rs.27,28,438/- to the OP on different dates as per their demands. Complainants requested the OP many times for execution of Apartment Buyer’s Agreement, but they failed to do so. Moreover, there was no development in the project of OP, which shows mala-fide intention of OP. Ultimately, complainants stopped making payments towards the said apartment. It is alleged by the complainants that they made several requests to the OP to execute Apartment Buyer’s Agreement as they are in dire need of a house, but OP did not pay any attention towards the request of complainants and kept on issuing the demand letters in which illegal interest was added. As per the complainants, by not executing Apartment Buyer’s Agreement the OP committed an offence of unfair trade practice. Complainants also served legal notice dated 10.03.2017 upon the OP calling upon them to execute the Apartment Buyer’s Agreement. Thus, there was deficiency in service on the part of the OP. The complainant prayed that OP be directed to waive off the interest illegally demanded by the OP in the interest of justice, to pay an amount of Rs.5,00,000/- on account of mental agony and harassment and to pay a sum of Rs.33,000/- as litigation expenses. Besides this, complainants also prayed for any other additional or alternative relief to which complainants may be found entitled to in the facts and circumstances of the case.

2.                Notice of the complaint was issued against the OP, upon which OP appeared and filed its written statement. The OP in its written version submitted that the complaint is a gross abuse of the process of law and is liable to be dismissed with costs as the complainants have approached this Commission with unclean hands by not disclosing and misrepresenting material facts. Moreover, complainant is not maintainable as the complainants are not consumer but they are investor who applied for unit in question for earning benefits and not for the residential purpose of their own. However, it was admitted that the complainants booked a unit in the project of OP after satisfying themselves on all aspects and reading the terms and conditions. However, it was denied that that the total cost of the said flat was fixed as Rs.48,56,250/-, rather it was only the basic sale price and total sale price was Rs.59,09,240/- including GST/VAT/Service Tax. In addition, as on 31.08.2017, the complainants are liable to pay delayed interest of Rs.37,28,741/-. As per the OP, complainants themselves failed to execute the Apartment Buyer’s Agreement and also failed to make the payments of installment as per time schedule. Moreover, complainants were timely intimated to come and sign the agreement at the site office of OP including reminder sent as on 06.04.2017 in response to the legal notice. However, the complainants instead of executing the agreement have filed the present complaint with sole intention to take advantage of their own wrongs and get waiver of interest. It is further submitted that the complainants made the payments without any protest.  It is further submitted that no assurance regarding possession was given in 2012. As per clause 25 of the standard agreement, which had been read and explained to the complainants at the time of booking, it was clearly stated that the owner contemplates to complete the construction of the said building/apartment within 3 years of execution of agreement OR approval of all service plans whichever is later. The complainants having failed to execute the agreement or make payments, no time period could be set out. It is further submitted that complainants have paid less than 50% of even the principal amount due against them and thus, there is no deficiency in service on the part of OP. Further, the OP prayed for dismissal of the present complaint.

3.                When the complaint was posted for recording evidence of the parties, complainant Ashok Kumar 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-13 and closed the evidence on behalf of complainants.

4.                On the other hand, learned counsel for OP has tendered into evidence affidavit of Shri Ashwani Sharma, Authorized Representative of OP as Ex.RA alongwith other documents Ex.R-1 to Ex.R-7 and closed the evidence on behalf of OP.

5.                The arguments have been advanced by Mr. G.S. Duhan, learned counsel for the complainants as well as Mr. Ashim Aggarwal & Ms. Sushma Aggarwal, Advocates, 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 have been properly perused and examined.

6.                As per the basic averment raised in the complaint and including the contentions put forth by the learned counsel, the foremost question which requires adjudication by this Commission is as to whether the present complainants are entitled to waive off the interest for delay in executing the Apartment Buyer’s Agreement and to get physical possession of the flat in question or not? 

7.                While unfolding the arguments, it has been argued by Mr. G.S. Duhan, Advocate, learned counsel for the complainants that it is not in dispute that the complainants booked a residential unit in the project of OP by paying an amount of Rs.7,28,438/- through receipt dated 09.09.2010 (Ex.C-1). It is also not in dispute that the OP allotted an apartment bearing No.603, 6^th Floor, Tower-9A through allotment letter dated 26.08.2012 (Ex.C-2), in their housing project under the name & style “Parikrama”. Thereafter, complainants paid an amount of Rs.10,00,000/- on 26.09.2011 and Rs.10,00,000/- on 09.05.2012 against the receipts (Ex.C-7 & Ex.C-8). Thus, it is also not in dispute that complainants have in all paid an amount of Rs.27,28,438/-  to the OP. It is also undisputed that the basic sale price of the flat in question was Rs.48,56,250/-. However, the OP failed to execute the Apartment Buyer’s Agreement after passing of a long period despite depositing an amount of Rs.27,28,438/-, which is more than half the amount of total cost of the flat in question, by the complainants with the OP.  In these circumstances, the complainants have no other option, but to knock the door of this Commission for getting the possession of flat in question after waiving off the interest as the OP themselves failed to execute the Apartment Buyer’s Agreement. In support of his version the complainant also placed reliance upon the judgment of State Consumer Commission, UP, passed in First Appeal No.2819 of 2006 titled as “Urmila Kumar Anand Vs. Ghaziabad Development Authority” wherein in it has been held that:-

“The opposite party shall deliver possession of the plot within 30 days from date of judgment in alternate directed to allot a plot of same area in the same locality and on the same price and no further amount shall be demanded from her in any category or for any cause.”

 

8.                         On the other hand, Mr. Ashim Aggarwal & Ms. Sushma Aggarwal, Advocates, learned counsel for OP have argued that the complainants booked a unit in the project of OP after satisfying themselves on all aspects and reading the terms and conditions. Basic sale price of said unit was fixed as Rs.48,56,250/- and total sale price was Rs.59,09,240/- including GST/VAT/Service Tax. In addition, as on 31.08.2017, the complainants are liable to pay delayed interest of Rs.37,28,741/-. It is further argued that complainants themselves failed to execute the Apartment Buyer’s Agreement and also failed to make the payment of installments as per time schedule. Moreover, complainants were timely intimated to come and sign the agreement at the site office of OP including reminder sent as on 06.04.2017 in response to the legal notice. It is further argued that complainants instead of executing the agreement have filed the present complaint with sole intention to take advantage of their own wrongs and to get waiver of interest. It is further argued that complainants made the payments without any protest and no assurance regarding possession was given in 2012. As per clause 25 of the standard agreement, which had been read and explained to the complainants at the time of booking, it was clearly stated that the owner contemplates to complete the construction of the said building/apartment within 3 years of execution of agreement OR approval of all service plans whichever is later. It is further argued that complainants having failed to execute the agreement or make payments, no time period could be set out. It is further argued that complainants have paid less than 50% of even the principal amount due against them. They further argued that moreover the present complaint is time barred because the flat in question was booked in the year, 2010 and the complaint was filed in the year, 2017. In support of their version, they placed reliance upon the judgment of Hon’ble National Commission, passed in First Appeal No.1453 of 2016, decided on 16.03.2020, titled as “Sadhana Mandal & Ors. Vs. Ajay Komat Mitra” wherein in it has been held that:-

“If the complaint is per se barred by time and the complainant does not seeks condonation of delay under Section 24A(2) the consumer forums will have no option but to dismiss the same.”

Another judgment of Hon’ble Supreme Court of India, passed in Civil Appeal No.4962 of 2002, decided  10.07.2009, titled as “Kandimalla Raghavaiah and Co. Vs. National Insurance Co. and Anr.”, wherein it has been held that:-

“By no stretch of limitation, it can be said that Insurance Company’s reply dated 21^st March, 1996 to the legal notice dated 4^th January, 1996, declining to issue the forms for preferring a claim after a lapse of more than four years of the date of fire, resulted in extending the period of limitation for the purpose of Section 24A of the Act. We have no hesitation in holding that the complaint filed on 24^th October, 1997 and that too without an application for condonation of delay was manifestly barred by limitation and the Commission was justified in dismissing it on that short ground.”

 

9.                In view of the above submissions and after careful perusal of the entire record, it is proved that upon floating a project by the OP, a flat was booked by the complainants for cost of Rs.48,56,250/- against which an amount of Rs.27,28,438/- was paid. It is also not in dispute that Apartment Buyer’s Agreement did not come into existence between the parties and when the OP failed to execute Apartment Buyer’s Agreement, complainants stopped making further payments.

10.              The plea regarding limitation was also taken by the OP in reply to the complaint as well as during the course of arguments. From the perusal of record, it reveals that this Commission vide its order date 01^st June, 2023 decided miscellaneous application No.211 of 2023, in favour of complainants, which was filed on behalf of complainants to stay the proceedings of notice dated 23.02.2023 issued by the OP to them for cancellation of allotment letter with regard to unit in question. It shows the mala-fide intention of OP that during the pendency of present complaint they cancelled the allotment of unit in question and issued notice to the complainants.  Hence, it is proved when the OP issued cancellation of allotment during the pendency of present complaint, cause of action was in continuance and present complaint is within limitation. Moreover, non-execution of Apartment Buyer’s Agreement after having received more than 50% of the amount of cost of the apartment and demand of interest by the builder from the buyer in the absence of Apartment Buyer’s Agreement gives rise to continuous cause of action under the provisions of the Consumer Protection Act, 1986. In view of the above, the averments of OP that the complaint is time barred is found to be without substance and devoid of any merit. The citations referred to by the OP are thus not attracted in the facts of present case.

11.              As far as the question of interest part on the pending payment is concerned, it is pertinent to mention here that inspite of the admitted fact that OP having received 50% of the cost of flat in question, failed to execute the Apartment Buyer’s Agreement and when the Apartment Buyer’s Agreement has not been executed till date how the interest part would be calculated is not forthcoming. As such, there is clear deficiency in service on the part of OP. It is the normal trend of the developers that the developers would collect their hard earned money  from  the  individuals and would invest the funds in other projects and as a result thereof, the project  for which the investors have invested their hard earned money is not completed. Resultantly, the execution of Apartment Buyer’s Agreement and delivery of possession or completion of the project was delayed as in the present case. When the execution of Apartment Buyer’s Agreement has not come into existence due to lapse on the part of OP, as such, this Commission is of the considered opinion that there was deficiency in service on the part of OP and thus, complainant is well within his legal rights for waiver of interest on the payments due and consequently 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 of money and still having been deprived of  the flat 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.

12.              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 execute the Apartment Buyer’s Agreement and hand over the physical possession of unit No.603, 6^th Floor, Tower No.9-A, in the housing project of opposite party (“OP”)  under the name & style “Parikrama” situated at Sector-20, Panchkula, Haryana, 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 in terms of the Apartment Buyer’s Agreement, without interest as the OP itself is liable for not executing the Apartment Buyer’s Agreement.

13.              It is also made clear that in case of non-compliance, the provisions enshrined under section 72 of the C.P.Act  would also be attractable.

14.              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.

15.              Application(s), pending, if any, stand disposed of in terms of the aforesaid order.

16.              File be consigned to record room alongwith a copy of this order.

 

Pronounced on 28^th July, 2023

 

                                                                                                            S.C Kaushik,

Member        

Addl. Bench-III