CONSUMER DISPUTES REDRESSAL COMMISSION – X

GOVERNMENT OF N.C.T. OF DELHI

UdyogSadan, C – 22 & 23, Institutional Area

(Behind Qutub Hotel)

New Delhi – 110016

                                  Case No.163/2020

Laxmi Kumar Saini&Anr

H.No. 465 Sector 27, Ground Floor

Near Galleria Market

Gurugram, Haryana.…..COMPLAINANT

Vs.

Vatika Limited

Flat No.224 A, 2^nd Floor

Devika Tower, 6 Nehru Place

New Delhi.                                                    …..RESPONDENTS

Date of Institution23.10.2020

 Date of Order-03.11.2023

O R D E R

RITU GARODIA-MEMBER

1. The complaint pertains to deficiency in service on the part of OP in not handing over the possession of the booked unit to the complainant.

2. The complainant states that he had booked a residential unit in “Vatika Tranquil Heights” being developed by OP.  He was allotted unit No. 202 in Tower A admeasuring 1,645 sq. ft. vide allotment letter dated 15.09.2014. The complainant booked the unit in 2013 vide a letter of Expression of Interest dated 6.11.2013. It is alleged that OP executed a Builder Buyer Agreement dated 21.10.2015 after an unjustified delay. The total sale consideration of the unit in question was Rs.1,18,50,580/-.

3. It is claimed that the Agreement includes several clauses that are unfairly biased and arbitrary. According to Clause 13, the possession of the unit was supposed to be handed over within 48 months from the Agreement's date, which translates to October 2019.

4. The complainant alleges that the construction of the project is still ongoing and no possession has been offered. Complainant has paid a sum of Rs.58,01,445/- to OP.  The complainant prays for refund of the amount paid with 18% interest, Rs.5,00,000/- for compensation and Rs.1,00,000/- for litigation expenses.

5. OP in its reply has stated that complaint is beyond pecuniary jurisdiction of this Forum as the cost of the unit is  Rs.1,18,50,580/-.  OP has also stated that complainant is not a consumer as he had booked a unit for commercial gains. OP has also stated that complaint is pre-mature because as per Agreement, complainant will be duly compensated.

6. OP submits that the reason for delay is non-payment of agreed consideration. OP has relied on account statement as well as letters dated 14.04.2014, 23.04,2014, 09.06.2014, 18.12.2017, 11.01.2018 and 05.06.2018. OP has also relied on clause 13 of Builder Buyer Agreement.

7. OP states that it was the complainant who delayed the execution of Builder-Buyer Agreement and has relied on letters dated 21.07.2015, 19.08.2015 and 10.10.2015.

8. OP states that  best possible endeavour is being made to complete the construction which was hampered due to force majeure circumstances beyond OP’s control such as: delay caused by GAIL to lay down gas pipeline, delay caused by Haryana Urban Development Authority (HUDA) in acquisition of land for laying down 75 mtrs. & 60 mtrs. sector roads connecting the project in question, shortage of labour faced by construction, disruptions/ delays in supply of stone and sand, disruptions caused by unusually heavy rains, delay in supply of cement & steel, declaration of Gurgaon as notified area for the purpose of ground water & restrictions, delayed rerouting by DHBVN of its 66 KVA, total and partial ban on construction due to the directives issued by the National Green Tribunal. Hence the complaint should be dismissed. 

9. Complainant in its rejoinder has reiterated the averments made in the complaint.

10. Complainant has filed evidence by way of affidavit and has  exhibited following documents:

1. Details of OP available on the website of the Ministry of Corporate Affairs is exhibited as Exhibit CW 1 /1.
2. Copy of allotment letter dated 15.9.2014 is exhibited as Exhibit CW 1 /2.
3. Copy of Builder Buyer Agreement is exhibited as Exhibit CW 1 /3.
4. Copy of Account statement is exhibited as Exhibit CW 1 /4.
5. Copy of progress status of the  project on website of OP is exhibited as Exhibit CW 1 /5.
6. Copy of address detail available on the website of OP is exhibited as Exhibit CW 1/6.
7. Claim computation table is exhibited as Exhibit CW 1 /7.

11. OP has filed evidence by way of affidavit and has exhibited the following documents:

1. Copy of the Board Resolution is exhibited as Exhibit OP-1.
2. Copies of letters are exhibited as Exhibit-OP-2.
3. Copy of Expression of Interest is exhibited as Exhibit-OP-3.
4. Copies of letters are exhibited as Exhibit-OP-4 .
5. Document pertaining to delay is exhibited as Exhibit-OP-5.

12. We have considered the material and documents on record.  It is admitted that a Builder Buyer Agreement was executed on 21.10.2015.  Both the parties have relied on clause 13 of the Builder Buyer Agreement which is as follows:

B SCHEDULE FOR POSSESSION OF THE SAID APARTMENT

The Developer based on its present plans and estimates and subject to all just exceptions, contemplates to complete construction of the said Building/said Apartment within a period of 48 (Forty Eight) months from the date of execution of this Agreement unless there shall be delay or there shall be failure due to reasons mentioned in Clauses 14 to 17 & 37 or due to failure of Allottee(s) to pay in time the price of the said Apartment along with all other charges and dues in accordance with the Schedule of payments given in Annexure-I or as per the demands raised by the Developer from time to time or any failure on the part of the Allottee(s) to abide by any of the terms or conditions of this Agreement.

13. Clause 14 to 17  & 37  are as follows:

1. Procedure for taken possession
2. Failure for allottee to take possession
3. Delay due to reason beyond the control of the developer
4. Failure to deliver possession due to Govt. Rules, orders, notifications etc.
5. Force Majeure

14. From Clause 13, it can be inferred that OP had to complete the construction within 48 month from the date of the execution i.e.  by 21.10.2019.  The only exceptions were reasons mentioned in clause 14 to 17 and 37.

15. OP had relied on the delay caused by GAIL to lay down gas pipeline.  OP has filed correspondence with GAIL and notification relating to GAIL.  The said notification is dated 1.2.2008. All correspondence with GAIL are in the year 2009-2010.  OP had also relied on writ petition against GAIL.  However, the said petition was also decided in 21.12.2009.

16. OP has relied on correspondence with HUDA (Haryana Urban Development Authority) for laying of 75 meter and 65 meter sector roads. These correspondences took place in year 2012. The Builder Buyer Agreement was executed in year 2015 and all issues with GAIL and HUDA took place years  before entering into the said agreement.

17. OP has also relied on other problems faced during construction such as shortage of labour, delay in supply of stone, sand,  cement and steel, disruption caused by heavy rains, ground water restriction and partial ban issued by National Green Tribunal.  None of these issues are unwarranted and the same should have been taken into consideration while deciding the period of construction.

18. OP has taken an objection that this complaint is beyond the pecuniary jurisdiction of this commission as the cost of the property in dispute is Rs.1,18,50,580/-.  It is admitted in statement of account that complainant has paid Rs.58,01,445.34/-. 

19. Section 34 of Consumer Protection Act, 2019 give the jurisdiction of District Commission as follows–

34. Jurisdiction of District Commission-

1. Subject to the other provisions of this Act, the District Commission shall have jurisdiciton to entertain complaints where the value of the goods or services paid as consideration does not exceed one crore rupees.

20. Hence the amount of Rs.58,01,445.34/- as paid by complainant to OP is within jurisdiction of this Commission.

21. The OP has additionally stated that the unit was reserved for the purpose of generating a commercial profit. However, making unsubstantiated claims without supporting evidence will not benefit OP.

22. National Commission in a number of cases:  ParagKar V/s Vatika Limited, Sachhindra V/s Vatika Limited, Sameer RekhiVe/s Vatika Limited, AmitArora V/s Vatika Limited, AmitKansal V/s Vatika Limited, Rakesh Kumar Bohre&Anr V/s Vatika Limited has decided on 21.11.2022 dealt with the project ‘ Tranquil Heights’  being developed by OP has held as follows …

It is a fact that the Project has not completed yet.As per clause 13 of the Agreement dated 10.7.2015 the Project was to be completed on or before 10.07.2019.There is continuing delay of more than 3 years.The Opposite Party/builder has definitely committed deficiency of service under the Act.Thus, the Complainant deserves to get refund of his deposited amount alongwith reasonable delay compensation.There are number of Orders of Hon’ble Supreme Court and this Commission wherein relief has been granted with the direction of refund alongwith reasonable delay compensation.

23.  Hence, we hold OP guilty of deficiency in service and unfair trade practice and OP is directed to pay:

1. Rs.58,01,445/- with 9% from date of payment till realisation
2. Rs.30,000/- as compensation
3. Rs.10,000/- as litigation expenses.

24. The order to be complied within 30 days from the date of the order.

25. File be consigned to record room after providing copy of the order to the party. Order be given dasti.

26. File be consigned to record room.