Delhi

East Delhi

CC/183/2021

SANDEEP ARORA - Complainant(s)

Versus

V.P. SPACES - Opp.Party(s)

19 May 2023

ORDER

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110092

 

C.C. No. 183/2021

 

	Sandeep Arora, R/o. Flat No. D-53, IFS Apartment, Mayur Vihar, Phase-I, Delhi-91.	….Complainant
Versus
	M/s VP Spaces Pvt. Ltd. Regd. Office:-J-187, Ground Floor, Vikaspuri, Delhi-18.   Also At   Corp. Office:- 906-907, 9th Floor, ILD Trade Centre Sohna Road, Gurgaon, Haryana   Through its Managing Director Deepak Virmani and Directors, Ashish Manchanda, and Varun Manchanda	……OP

 

Date of Institution: 25.03.2021

Judgment Reserved on: 20.04.2023

Judgment Passed on: 19.05.2023

                       

CORUM:

Sh. S.S. Malhotra (President)

Sh. Ravi Kumar (Member)

Ms.Rashmi Bansal (Member)

 

Judgment By: Ms.Rashmi Bansal (Member)

 

 

JUDGEMENT

 

The present complaint is filed by the complainant against OP for deficiency in service and unfair trade practice in unilaterally increasing the cost of the flat booked with OP by him and failing to give possession of the said flat within the specified time as per the contract. The complainant is claiming for refund of the flat price along with compensation, Litigation and interest thereon.

1. It is the case of the complainant that he booked an apartment/flat with OP on 19.07.2014 for a total consideration of Rs.14,99,000/- excluding car, parking and other charges, by paying a booking amount of Rs.1,50,000/- against receipt Number DPS/TRNDR/319, customer ID number VPS/A/187 and was allotted a unit bearing number 1108, 11th floor, Tower G in its project named Sutajia Grandeur, Sector, 56, Bhiwadi, Rajasthan. The complainant has paid a further sum of Rs.1,50,000/-  on 12.03.2016 against receipt dated 23.03.2016 and another amount of Rs. 30,000/- on 04.10.2017, by bank transfer. The complainant submits that at the time of execution of the agreement, the OP unilaterally increased the cost of the apartment to the tune of 17,14,700/- from Rs. 14,99,000/-. The complainant further submits that he has deposited a total sum of Rs.17,50,000/, i.e. more than the agreed consideration amount but despite that no possession has been offered by OP, instead more money is being demanded by OP on one pretext or the other.
2. The complainant submits that as per Agreement Article 4, the possession of the apartment ought to have been delivered to the complainant within 36 months from the date of the agreement which can be extended by 12 months. The complainant submits that the said clause ought to have been from the date of initial payment i.e. 19.07.2014 but the agreement clause is unilaterally changed and the money paid in 2014 and 2016 by the complainant has been used by the OP without giving the possession from the date of initial payment.
3. The complainant also submits that initially, the OP has advised him to take a loan from HDFC bank, but the said loan could not be sanctioned due to the delay on the part of the OP in providing documents and details of the property to the bank and even then the complainant was charged delay payment interest by OP. The complainant has again applied for a housing loan from DHFL and the loan of Rs.14,40,000/- was sanctioned at the rate of 9.5% which subsequently increased to 11% and an amount of Rs.12,26,000/-  was directly paid by DHFL to the OP making the total paid amount of Rs.15,50,000/-. The complainant is still paying interest on the total amount of Rs.14,40,000/-. The complainant has further made a payment of Rs.2,00,000/-  in 2020 and as per the statement of account filed by the OP, the complainant has paid a total sum of Rs.17,50,000/-  till 25.11.2020 which is more than the initial amount mentioned in the builder buyer agreement, more than the required demand  by OP, where it is mentioned that total consideration is of Rs.17,14,400/-. The complainant submits that the OP has informed that the size of the apartment of the complainant has been increased thereby claiming an increased price but did not furnish any proof nor provided any measurements on this count which action of the OP is arbitrary and illegal. The complainant also submits that the OP initially was not having statutory approvals and failed to offer the possession for seven years. The complainant also submits that no OC as well as statutory clearance has been obtained by the OP till date. This is the grievance of the complainant that by the said act of unilaterally increasing the price of the unit, not obtaining statutory clearance & OC and not completing the project in time and failing in delivering the possession, the OP has caused wrongful loss to the complainant and wrongful gain to itself. The complainant also submits that the initial receipt of 2014 was not mentioning the project name and tower number and was marked as ‘NIL’ which itself shows that they were not having initial approval for the project in the year 2014 itself i.e. prior to the start of the project. The complainant also submits that the recommended DHFL Company by OP is running under asset reconstruction projects and another finance company is going to take over the same, therefore, the complainant’s loan and apartment in question are under serious threat. The complainant submits that his purpose of taking the unit is frustrated by now and claims refund of Rs.17,50,000/-  with interest at the rate of 18% as he is paying interest on the loan amount at the rate of 11% DHFL. Moreover, the OP used to charge 18% on the delayed payment. Hence OP is liable to pay interest at the rate of 18% on the cost of funds utilised by the OP from the respective date of payment to the OP along with compensation for causing mental agony and harassment and litigation expenses.
4. A legal notice dated 26.02.2021 was not responded to by OP.
5. Upon notice, OP has filed a reply along with the application for condonation of delay, which was allowed vide order 15.03.2022. At a later stage, OP failed to file evidence and proceeded ex-parte vide order dated 18.10.22. The complainant has filed his rejoinder and evidence.
6. In support of his claim, the complainant has filed:
   1. booking document, Ex. CW1/1;
   2. the copy of the allotment letter, Ex. CW1/2;
   3. the copy of the receipt of payment of Rs.3,30,000/-, Ex. CW1/3(colly);
   4. the copy of the builder buyer agreement, Ex. CW1/4;
   5. the copy of the email exchange between the complainant and OP with respect to the loan from HDFC and delay charges, Ex. CW1/5;
   6. The copy of the loan documents with DHFL, Ex. CW1/6;
   7. the copy of the statement of account sent by OP to the complainant, Ex. CW1/7;
7. The Commission has heard Ld.  Counsel for the complainant perused the record. The OP has filed WS but failed to file evidence and proceeded ex-parte. It is a settled principle of law that the pleadings without evidence are of no evidentiary value and that to prove its case, the OP has not taken any steps as averred in the written statement. Pleadings howsoever strong may be cannot take the pleading of proof. The OP ought to have led evidence to prove its case. Also, OP did not file written arguments or advanced oral submissions. Therefore, the allegations put forward by the complainant are deemed to be accepted by OP.
8. A perusal of the documents on record, the statement of account, issued by OP vide its reminder dated 25.11.2020 establishes that complainant has paid a total amount of Rs. 17,50,000/- against the total consideration of Rs. 17,14,400/-. OP further demands Rs. 10,23,845/- showing it as due towards the complainant. The allotment letter shows the total consideration of the flat as Rs. 14,99,000/-  and the builder buyer agreement dated 04.10.2017 shows the increased total consideration to Rs. 17,14,400/- within a small time gap. There is no document on record to show that any prior consent has been taken from the complainant or that any information to this effect has ever been given to the complainant or that there is an increase in the area of the flat or any other cogent reason. Increasing the rate one-sided by the OP amounts to unfair trade practices on the part of OP.
9. Further, the builder Buyer’s Agreement dated 04.10.2017, vide its Article 4 provides for handing over the possession within 36 months from the date of the execution of the agreement with a grace period of 12 months, i.e. the flat must have been given by the OP by 04.10.2020 or latest by 04.10 2021 with a grace period. Even after filing the present complaint the OP is failed to offer the possession to the complainant nor has appeared before this Commission to file its evidence or to put forward its arguments, which act of OP establishes that the OP is not ready or willing to offer the possession of the flat to the complainant till date. It would be unreasonable to take the contract between the parties to mean that it requires the buyer to wait indefinitely for possession.
10. Further, the builder-buyer agreement contains one-sided terms to the advantage of the OP and un-advantageous to the complainant. Article 4 (c) states that in case of delay on the part of OP beyond 36 months, it shall be liable to pay a penalty @ Rs.  2/- per sq. feet per month of the covered area of the studio apartment and in case of failure of taking possession on the part of the complainant, he shall be liable to pay charges @ Rs. 5/- per month of the covered area. Also in case of default on the part of the buyer in payment, the agreement stipulates that interest at the rate of 18% from the date of default for up to 1 month from the due date of payment and at the rate of 24% per annum thereafter on all outstanding dues from their respective due dates. It further states, that if there is a default in any of the instalments with interest within three months from its due date, the OP at its sole discretion will forfeit earnest money along with the interest on delayed payment, interest on instalments, brokerage and the amount of any other fine or penalty paid by the complainant and shall cancel the booking and thereafter the buyer shall be left with no right or lien on the said. This is further noticed from the said builder buyer agreement is silent about any charges to be paid by the OP in case of delay in handing over the flat to the complainant and it simply stated that subject to force – majure and related acts the date of delivery shall be entitled to a reasonable extension of time in delivery of possession of the premises. These clauses establish that the agreement clauses are one-sided.
11. The initial receipt of 2014 placed on record show that there is no mention of the project name and tower number and is marked as ‘NIL’ which establishes there was no initial approval obtained for the project in the year 2014 itself i.e. prior to the issuance of the start of the project.
12. Hon'ble Supreme Court of India in Pioneer Urban Land and Infrastructure Limited v. Govindan Raghavan, (2019) 5 SCC 725 vide its order dated 02.04.2019 has held that

•  6.4/ 6.8 “A perusal of the apartment buyer agreement dated 08.05.2012 reveals strong incongruities between the remedies available to both the parties…….. A term of a contract will not be final and binding if it is shown that the flat purchasers had no option but to sign on the dotted line, on a contract framed by the builder. The contractual terms of the Agreement dated 08.05.2012 are ex-facie one-sided, unfair, and unreasonable. The incorporation of such one-sided clauses in an agreement constitutes an unfair trade practice as per Section 2 (r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling the flats by the Builder.”
• Further para 10’ “Appellant – Builder failed to fulfil his contractual obligation of obtaining the Occupancy Certificate and offering possession of the flat to the Respondent – Purchaser within the time stipulated in the Agreement, or within a reasonable time thereafter. The Respondent – Flat Purchaser could not be compelled to take possession of the flat, even though it was offered almost 2 years after the grace period under the Agreement expired. During this period, the Respondent – Flat Purchaser had to service a loan that he had obtained for purchasing the flat, by paying Interest @10% to the Bank. In the meanwhile, the Respondent – Flat Purchaser also located an alternate property in Gurugram. In these circumstances, the Respondent – Flat Purchaser was entitled to be granted the relief prayed for i.e. refund of the entire amount deposited by him with Interest.”

13. It has been well settled that the complainant cannot be expected to wait for an indefinite time period to get the benefits of the hard-earned money that they have spent in order to purchase the property in question. A person cannot be made to wait indefinitely for the possession of the flats allotted to him/her. The Complainants are, therefore, entitled to seek a refund of the amount paid along with compensation, held by Hon'ble Supreme Court of India in Manoj Kawatra v. Pioneer Urban Land & Infrastructure, 2021 SCC Online NCDRC 325, decided on 1-11-2021.
14. In the facts and circumstances, the failure of the OP to comply with the contractual obligation to provide/offer possession to the complainant within the stipulated time despite receiving full consideration would amount to a deficiency of service on its part that caused mental agony and harassment to the complainant and the complainant is entitled to a refund along with compensation for such delay. Considering the one-sided agreement terms and conditions, and unilaterally increasing the price of the flat, the OP is also liable for unfair trade practices. Further, the complainant had to pay an interest @11% p.a. for the loan that he had opted for purchasing the flat to the DHFL, the OP is liable to refund the entire amount deposited with him with similar interest i.e. @11% p.a. from the date of each instalment till the final payment. Therefore, OP is directed as follows:
    1. To refund the entire amount of Rs.17,50,550/- to the complainant paid to it with interest @11% p.a. from the dated respective dates of its payment till final payment;
    2. To pay compensation of Rs.25,000/- for deficiency in service and unfair trade practice and causing mental agony and harassment to the complainant;
    3. To pay an amount of Rs.10,000/- towards litigation cost;
15. The above-stated order be complied with within 30 days from the date of the receiving of the order failing which the entire amount accrued till the 31^st day shall carry interest at the rate of 15% p.a. till final realisation by the complainant.
16. A copy of the order be given to the parties as per CPA 2019 and thereafter file be consigned to the Record room. Order be uploaded on web site.
17. The order contains 09 pages each bears our signature.

Announced on 19.05.2023.