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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Ram Surat Ram Maurya, Presiding Member
Deepak Goyal and Anr. – Complainants
versus
M/s. North Star Apartments Pvt. Ltd. and Ors. – Opp. Parties
Consumer Case No.871 of 2017
Decided on 28.9.2021
(A) Consumer Protection Act, 1986 – Section 21(a)(i)[Section 58(1)(a) –Consumer Protection Act, 2019] – Complaint before NCDRC – Complainant booked a flat in Opp. Party’s flat scheme – Flat was promised to be delivered in 3 years – Agreement signed on construction basis – Complainant paid initial installments but stopped paying on finding construction not having commenced as promised – Construction completed at later date – Complainant asked for refund – Builder denied stating arrears were on part of complainant - Complaint filed complaint before NCDRC for unfair trade practice - NCDRC awarded refund of amount with 9% interest calculated from the day of deposit of each installment - Section 2(1)(r) – Unfair Trade Practice – Flat buyer cannot wait in perpetuity for completion of construction.
Held: The complainants stopped payment after 04.08.2016 on the allegation that Brick works completion instalment (11th instalment) was realized on 10.05.2016 and Internal plumbing etc. completion instalment (12th instalment) was realized on 04.08.2016, but when they visited the site in August, 2016, they did not find any brick work or plumbing works etc. in the apartment. According to the complainants, they found that the builder was realizing instalment of different level of construction, without any construction of that stage and thus committing unfair trade practice. They have filed photographs to prove this fact. The complainants had taken loan for deposit of the instalments and were paying its EMI. Therefore, the complainants, through legal notice and email dated 02.11.2016, requested to cancel their allotment, refund the money realized from them and deposit it, in their bank loan account. Thus unfair trade practice on the part of the builder was proved.
Under Clause-8 (a) of the FBA, the promised period for offer of possession was 36 months with grace period of 90 days from the date of execution of the FBA, subject to exception as given under clauses 8 (b), 38, delay in approval of sanctioned plan and issue of Occupation Certificate. Promised period for offer of possession expired in November, 2015. The builder has not taken any plea that offer of possession was delayed either for delay in sanction of layout plan or in issue of Occupancy Certificate. Possession notice was issued on 27.11.2018, with delay of three years. Supreme Court in Bangalore Development Authority Vs. Syndicate Bank, (2007) 6 SCC 711, Fortune Infrastructure Vs. Trevo D’Lima, (2018) 5 SCC 442 and Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, 2019 6 SCC OnLine SC 438, has held that an allottee cannot be made to wait for indefinite period for the possession. (Paras 8 & 9)
Result: Complaint allowed with cost of Rs. 1 lakh; Respondent directed to refund the amt. of Rs.66,58,319/-along with interest @ 9 % p.a. from the date of each deposit till the date of refund
ORDER
Ram Surat Ram Maurya, Presiding Member.—Heard Mr. Sushil Kaushik, Advocate, for the complainants and Mr. Sanjay Kumar Shandilya, assisted by Mr. Hemant Sharma, Advocate, for the opposite parties, through video conferencing.
2. Deepak Goyal and Smt. Pinky Goyal (the complainants) filed this complaint for directing the opposite parties (hereinafter referred to as the builder) (i) to refund an amount of Rs.66,58,319/- along with interest @ 18 % p.a. from the date of each payment till the date of refund, (ii) to pay Income Tax exemption of Rs.4,02,967/-, (iii) to pay Rs.10 lakhs as compensation for mental agony and physical harassment, (iv) to pay cost of the litigation and (v) any other relief as may be deem fit and proper, in the circumstances of the case.
3. The facts as stated in the complaint and emerged from the documents are that the builder was a company, engaged in business of development and construction of multi-story residential and commercial buildings and selling its unit to the prospective buyers. The builder launched a housing project in the name of “The Coral Wood” in Sector-84, Gurgaon, Haryana, in 2012 and made various lucrative advertisements. In order to secure early booking, they also advertised that the price would be revised soon. The complainants booked a Type-B (3 B/R) flat on 03.06.2012 and paid booking amount of Rs.7,92,000/- on 08.06.2012. They were allotted Flat No. 1001, on 10th floor, Type-B, Tower-A, admeasuring super area of 1890 sq. ft. and sale price Rs.83,93,840/-. The payment mode was “Construction Linked Payment Plan”, under which, 10% of the sale price has to be paid at the time of booking, 10% within 45 days, 10% within 90 days of the booking, 65% of the sale price had to be paid in 12 instalments, at the different level of the construction and 5% at the time offer of possession. Flat Buyer’s Agreement (for short FBA) was executed on 20.07.2012. Thereafter, the complainants deposited Rs.8,65,180/- on 17.07.2012, Rs.8,29,242/- on 06.09.2012, Rs.8,29,242/- on 15.02.2013, Rs.4,10,478/- on 27.09.2013, Rs.4,14,683/- on 03.12.2013, Rs.4,14,750/- on 31.01.2014 + (Rs. 4147/- on 30.09.2013, Rs.4189/- on 03.12.2013 and Rs. 4190/- on 31.01.2014, were paid as TDS to the Government), Rs. 1,00,000/- on 21.07.2014, Rs. 3,02,156/- on 21.07.2014 + (Rs. 4062/- on 13.08.2015, was paid as TDS to the Government), Rs.4,16,272/- on 11.09.2015, Rs.4,12,600/- on 24.02.2016, Rs.4,20,491/- on 10.05.2016 + (Rs. 4248/- on 11.05.2016, was paid as TDS to the Government), Rs. 4,17,829/- on 04.08.2016 + (Rs. 4175/- on 24.02.2016, Rs.4163/- on 29.02.2016 and Rs.4222/- on 04.08.2016, were paid as TDS to the Government), (i.e. total Rs.66,58,319/-) on the demand notices issued to them, at the various stages of the construction. Under Clause-8 (a) of the FBA, the promised period for handing over possession was 36 months with grace period of 90 days from the date of execution of the FBA, subject to exception as given under clauses 8 (b), 38, delay in approval of sanctioned plan and issue of Occupation Certificate. Promised period for handing over possession expired in November, 2015. Brick works completion instalment (11th instalment) was realized on 10.05.2016 and Internal plumbing etc. completion instalment (12th instalment) was realized on 04.08.2016, but when the complainants visited the site in August, 2016, they did not find any brick work or plumbing works etc. in the apartment. The complainants found that the builder was realizing instalments of different level of construction, without any actual construction of that stage and thus committing unfair trade practice. In January, 2017, the complainants again visited the site and found that no construction work was going on. The complainants had taken loan for deposit of the instalments and were paying its EMI. The complainants, through email dated 02.11.2016, requested to cancel their allotment, refund the money realized from them and deposit it, in their bank loan a
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