NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Ram Surat Ram Maurya, Presiding Member
Rajan Handa – Complainant
Versus
M/s. M3M India Developers Limited
and Anr. – Opp. Parties
Consumer Case No.2387 of 2017
Decided on 15.9.2021

IMPORTANT POINTS
(1) Construction had to be completed within 36 months with grace period of 6 months from the date of commencement of construction, i.e., up to June 2016, while possession notice was given on 28.04.2017.
(2) Complainant is justified in not taking possession of the flat.

Headnote:

Consumer Protection Act 1986, Section 2(1)(r) – Unfair Trade Practice (Consumer Protection Act 2019, Section 2(28) – Section 2(1)(d) – Consumer (Consumer Protection Act 2019, Section 2(1)(7) – Complainant filed the complaint to refund the entire amt. of Rs.46,36,730/- along with interest @ 24% p.a., pay compensation of Rs.20,00,000/- for mental trauma, harassment and hardship caused and to pay Rs.1,00,000/- to the complainants as cost of litigation - Till 10.01.2014, the Complainant had already paid Rs.46,36,730/-, i.e. more than 50% of total sale consideration of Rs. 84,89,362/-, requested for “Deferred Payment Plan” - Cost of the flat arbitrarily enhanced to Rs.1,00,23,362/- from Rs.84,89,362/- - In Possession notice dt. 28.04.2017, cost of car parking charges, club membership charges, electricity, gas and other utility infrastructure and connection charges required to be deposited - Complainant after receiving possession notice visited the site and found that the construction work was still in progress and nothing existed - Quality Construction Certificate not been provided - Construction had to be completed within 36 months with grace prd. of 6 months from the date of commencement of construction, i.e., up to June 2016, while possession notice was given on 28.04.2017 - Delay in offering possession - Complainant justified in not taking possession of the flat – Opp. Party committed unfair trade practice.

Held: In “Construction Linked Payment Plan” as attached to the Provisional Allotment Letter dated 13.02.2013 and ABA dated 25.03.2014, 85% of total sale consideration was being realized for the basic construction, which was not proper. Till 10.01.2014, the complainant had already paid Rs.46,36,730/- i.e. more than 50% of total sale consideration of Rs.8489362/- as such he requested for “Deferred Payment Plan” but in the addendum dated 23.05.2014, cost of the flat has been arbitrarily enhanced to Rs.1,00,23,362/- from Rs.8489362/- and instead of 13 instalments, six instalments payment schedule was attached to this addendum, enhancing the amount of instalments, which was unfair trade practice. In view of the facts that the builder was committing unfair trade practice, the complainant is entitled for refund of the money along with interest.

The counsel for the builder, relying upon the judgment of Supreme Court in IREO Grace Realtech (P) Ltd. Vs. Abhishek Khanna, (2021) 3 SCC 241, submitted that once possession notice was given, the buyer was obligated to take possession as the possession was offered well within promised period. In present case, in the possession notice dated 28.04.2017, cost of car parking charges, club membership charges, electricity, gas and other utility infrastructure and connection charges were required to be deposited. The complainant has stated that on receiving possession notice, he, visited the site and found that the construction work was still in progress. Club building, convenient shopping complex, balconies, common area, plumbing works, drainage, internal and external electrification, covered parking, etc. were not in existence, although costs of these things were included in the possession notice. Although it is alleged that Occupation Certificate was obtained on 20.04.2017 but its copy was not sent along with possession notice dated 28.04.2017 nor it has been filed before this Commission. Quality Construction Certificate has not been provided. The complainant has also filed various photographs showing that the construction was going on, even after issue of possession notice. If the construction was not complete and not in habitable condition, then issue was possession notice was not proper. As per ABA, the construction had to be completed within 36 months with grace period of 6 months from the date of commencement of the construction i.e. upto June, 2016, while possession notice was given on 28.04.2017. As such there was delay in offering possession. In such circumstances, the complainant was justified in not taking possession of the flat. (Paras 9 & 10)

Result: Complaint is allowed with cost of Rs. 1 lakh, stay application is rejected. Opp. Party Builder directed to refund the entire amt. deposited by the Complainant along with interest @ 9% p.a. from the date of each deposit till the date of refund.