VISHAL DINESH v. VATIKA LTD.

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VERSUS

VATIKA LIMITED

Registered Office at:

Flat No. 621-A, 6^thFloor, Devika Tower, 6 Nehru Place New Delhi-110001

ALSO AT:-

Vatika Limited

Corporate Office at:-

Vatika Triangle, 4^thFloor, Sushant Lok, Phase-1, Block-A, Mehrauli-Gurgaon Road, Gurgaon-122002, Haryana ALSO AT:-

Vatika Limited

Vatika Infotech City

Near Gvk Toll Plaza,

Jaipur-Ajmer Expressway Post Thikaria-232026, Jaipur ....Opposite Party

HON'BLE SH. ANIL SRIVASTAVA, MEMBER

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1. Whether reporters of local newspaper be allowed to see the judgment?

Yes

2. To be referred to the reporter or not?

Yes

Present: Sh. Ankur Bansal, Counsel for the Complainant Ms. Akansha Kapoor, Counsel for the OP

ANIL SRIVASTAVA, MEMBER

JUDGEMENT/ORDER

HEARING IN THE MATTER WAS DONE THROUGH VIDEO CONFERENCING

This complaint under Section 17 of the Consumer Protection Act 1986, the Act has been filed by Sh. Vishal Dinesh resident of New Delhi, for short complainant, against the Vatika Limited, hereinafter referred to as OPs, alleging deficiency of service on the part of the OP, they having not handed over possession of the flat booked by him despite agreed period for the purpose having elapsed and despite payment as required under the scheme having been made and praying for relief as under:-

1.

It is, therefore, most respectfully prayed that this Hon'ble Forum may pleased to direct the OPs to;

The operation of the letter dated 19.10.2015 bearing reference no. Ref # VL/CRM/2015- 2016/12-04-0084006/9 [12-4-0084006] issued by the OP to the complainant may kindly be stayed till the pendency and final disposal of the present complaint. a.

Direct the OPs to handover the fully developed physical possession of the flat bearing no. A-002, Ground Floor, Aqua Tower in the project 'Vatika Infotech City-Jaipur' situated in and around village Thikaria, Prithvi Singh Pura (urf naiwala), Bagru Khurd and Sanjharia, Tehsil Sanganer, District Jaipur located adjacent to Jaipur-Ajmer Highway with immediate effect at the Original Agreed Sale Consideration @ Rs. 2025/- per sq. ft. against total super area admeasuring about 1262.14 sq. ft. along with other charges total amounting to Rs. 30,39,572.20 without any interest and delay/penalty charges and further after adjusting interest @ 18% on Rs. 44,77,835/- paid by the complainant till date of possession;

b.

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OR IN THE ALTERNATIVE

The OP may be directed to refund the booking amount of Rs. 4,77,835/- paid by the complainant along with interest @ 18% per annum from the date of payment till its actual realisation.

The OP may be directed to compensate the complainant with Rs. 5,00,000/- due to inflation in property market proportionate size of flat in the past 5 years. c.

The OP may be directed to pay the compensation of Rs. 2,00,000/- for the mental agony and financial loss suffered by the complainant;

d.

The Op may be directed to pay Rs. 1,00,000/- to the complainant towards the litigation charges; and/or

e.

Any other relief/s which this Hon'ble Commission may deem fit and proper in the interest of justice.

f.

Facts of the case necessary for the adjudication of the complaint are these.2. The complainant had booked a residential flat for personal use in the Project of OP namely 'Vatika Infotech City-Jaipur' situated in Jaipur, Rajasthan paying the initial booking amount of Rs. 4,77,835/- on 06.05.2008 under Special House Loan Scheme introduced by OP in association with HDFC Bank and was allotted flat no. B-102, 1^st Floor, Torquiose Tower, Jaipur-21 for a total Basic Sale consideration of Rs. 36,33,486.60. As per the said subvention scheme as explained was that after sanction and disbursal of the Housing Loan from HDFC Bank the accruing monthly instalments i.e. EMIs will be paid by the OP to the HDFC Bank directly till the time the physical possession of the flat is handed over to the allottee and after the possession is handed over the allottee shall pay to the HDFC Bank the remaining instalment amount along with interest. Later the complainant with the explicit approval of the OP got transferred the allotment from Turourise Tower to Aqua Tower in the same project. The OP consequently allotted flat no. A-002, Ground Floor, Aqua Tower having Super Area of 1262.14 sq. ft. at Rs. 2,150/- per sq. ft. for total B.S.P Rs. 31,97,339.70/- and transferred the earlier paid amount of Rs. 4,77,835/- in the transferred flat. The said housing loan was approved by the HDFC Bank vide sanction letter dated 06.09.2008. Apartment Buyer's Agreement dated 22.10.2008 was executed in respect of flat in Aqua Tower of the said project, agreeing to hand over possession by October, 2011.

3.

No amount was disbursed by HDFC bank under the SHL/Subvention Scheme till January 2009 as the OP did not have the requisite government approval for construction and due to non-sanction of building plans. The complainant sought an explanation for the delay in disbursement of the loan amount and as such, feeling cheated the complainant in- turn asked for cancellation of his booking and sought refund of the entire amount paid by the complainant to the OP. However, OP failed to respond. The complainant had drawn the attention to clause 11.2 of the Buyer Agreement obligating the OP to refund the money if they fail to get the building plans approved within 12 months from the date of the application.

4.

No construction in the project was done till roll leading to the delay. Besides the 5.

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OP pressurized the complainant to pay further instalments. Complainant in turn got loan from HDFC Bank sanctioned in the sum of Rs. 15,21,564/- but the complainant sought from the OP the expected date for completion of construction of the project. The OPs never responded with any specific answer. The complainant visited the project site on 26.06.2015 but the subject flat was nowhere near completion. The said fact was communicated to the OP. Infact the OPs failed to provide any specific date as to when the possession would be handed over.

The complainant received an email 08.07.2015 from OP intimating that the possession of the said flat would be handed over but demanded an amount of Rs. 48,01,691.98/- towards final payment which included principal amount and interest for the delayed period.

6.

The complainant has alleged that OP has arbitrarily increased the principal amount and charged exorbitant interest for the delayed period despite the fact that they had always been extending the dates for possession from 2011 to 2015 and secondly have specifically acknowledged an interest waiver till 31^stMarch, 2015 and/or till the date of handing over the physical possession and also a waiver of loan service charges @ 125/- per sq. ft. from the B.S.P vide email dated 30.11.2013. Further, the OP had specifically agreed not to demand any payment until the final possession of the flat is handed over by the OP to the complainant vide email dated 06.12.2013.

7.

The complainant has further alleged that the OP could obtain occupation certificate on 05.07.2019 and as such, it is clear that the project of the OP was not ready till on 05.07.2019 but the agreed date for handing over possession as per the agreement was October, 2011, or on 08.07.2015.

8.

The complainant had thereafter issued a legal notice to the OP seeking explanation for the delay and, secondly, for the exorbitant demand made but the said notice could evoke no response, leading to filing of the complaint before this Commission for the redressal of two folded grievances, namely, the OPs have period and, secondly, the OPs have raised illegal demand for payment.

9.

OPs were noticed and in response thereto they have filed their written statement both on merit and on technical ground stating that the Commission lacks territorial jurisdiction to hear and to dispose of the complaint, the parties having agree to resort to the State of Rajasthan for any litigation that may arise and, secondly, the amount having been paid by the complainant being less than Rs. 20 lakhs this commission lacks even the pecuniary jurisdiction to dispose of this complaint. Secondly, on merit their submission is that they having got the occupancy certificate from the concerned authority are ready to hand over the possession of the flat subject to the complainant depositing the requisite amount which includes the total agreed sale consideration and the interest for the delayed period but the complainant has not deposited the amount in which case he is not entitled for the possession of the flat as claimed.

10.

The complainant has thereafter filed the rejoinder rebutting the contentions raised in the reply and reiterating the averments contained in the complaint. Evidence has also filed by both the complaint. Written arguments are also on record.

11.

This complaint was listed before this Commission for final hearing on 26.03.2021 when the counsel for both sides appeared and advanced their arguments in support of their respective pleadings the complainant for the possession of the flat while the OPs for the dismissal of the complaint, no deficiency having been committed by them. I have perused the records of the case considered the rival contentions of both the parties.

12.

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Short question for adjudication in this complaint is whether there has been deficiency on the part of the Ops in rendering service to the complainant as per the agreement. For this purpose I may advert to the terms of the agreement. Relevant clause on the subject of possession as contained in the agreement is as under:-

13.

SCHEDULE FOR POSSESSION OF THE SAID APARTMENT

The promoter 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 three years from the state of execution of this agreement unless there shall be delay or there shall be failure due to reasons mentioned in clauses 11.1, 11.2, 11.3, and clause 39 or due to failure of apartment allottee 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 ii or as the demands raised by the Promotor from time to time or any failure on the apart of the apartment allotte to abide by any of the terms or conditions of this agreement.

PROCEDURE FOR TAKING POSSESSION

The Promoter, upon obtaining certificate for occupation and use from the competent authority shall offer in writing to the apartment allottee to take over, occupy and use the said apartment in terms of this agreement within thirty days from the date of issue of such notice and promoter shall hand over the said apartment to the apartment allottee for his/her occupation and use subject to the apartment allotte having complied with all the terms and conditions of this agreement and is not in default under any of the provisions of this agreement and has complied with all provisions, formalities, documentation's etc as may be prescribed by the promoter in this regard.

From the above two things emerge clearly, namely, possession was to be handed over in three years time and, secondly, the occupation certificate has to be obtained before offering the possession. In the given case, as borne out from the records, the OC was received only in the year 2019. The possession was to be handed much earlier than 2019, which means, the OPs were certainly deficient as offering possession without obtaining the OC is, as per the settled law, is no valid offer of possession.

14.

Having reached to this conclusion the point for determination is the relief the complainant can be granted in the facts and circumstances of the case.

15.

The provisions of the Act enable a consumer to claim and empower the Commission/Forum to redress any injustice done to a consumer. The Commission or the Forum is entitled to award not only value of goods or services but also to compensate a consumer for injustice suffered by him. The word compensation is of very wide connotation. It may constitute actual loss or expected loss and may extend the compensation for physical, mental or even emotional suffering, insult or injury or loss.

16.

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Therefore, for the purpose of determining the amount of compensation, the Commission/Forum must determine the extent of sufferance by the consumer due to action or inaction on the part of the Opposite Party. In Ghaziabad Development Authority Vs. Balbir Singh - (2004) 5 SCC 65, while observing that the power and duty to award compensation does not mean that irrespective of facts of the case, compensation can be awarded in all matters on a uniform basis, the Hon'ble Supreme Court gave certain instances and indicated the factors, which could be kept in view while determining adequate compensation. One of the illustrations given in the said decision was between the cases, where possession of a booked/allotted property was directed to be delivered and the cases where only monies paid as sale consideration, are directed to be refunded. The Hon'ble Court observed, in this behalf, that in cases where possession is directed to be delivered to the Complainant, the compensation for harassment will necessarily have to be less because in a way that party is being compensated by increase in the value of the property he is getting. But in cases where monies are being simply refunded, then the party is suffering a loss inasmuch as he had deposited the money in the hope of getting a flat/plot. He is not only deprived of the flat/plot, he has been deprived of the benefit of escalation of the price of the flat/plot. Additionally, in my view, in such a situation, he also suffers substantial monetary loss on account of payment of interest on the loans raised; depreciation in the money value and escalation in the cost of construction etc. From the above it is apparent that this Commission can pass orders regarding the refund of the amount deposited to the company by the complainants, notwithstanding the proceedings pending in any other forum.

17.

The Hon'ble NCDRC in the matter of Anil Shantilal Gandhi versus Sahara Prime City Ltd. as reported in IV [2019] CPJ 24 (NC) in pleased to direct refund of the amount deposited with interest @ 10%, the OP having failed to offer the possession of the allotted unit to complainant even after more than eight years time.

18.

The Hon'ble NCDRC in the matter of Satish Kumar Pandey and Anr vs. Unitech as reported in 2015 Law Suit (Co) 998 is pleased to order in the similar circumstances as under:-

19.

The opposite party shall deliver possession of the respective flats of the complainants to them on or before the last date stipulated in its letter dated 27.05.2015; a.

The opposite party shall pay to (i) the original allottees and (ii) to those who acquired the allotment by way of repurchase, within one year of the date of the initial Agreement of their respective flats, compensation in the form of simple interest at the rate of 12% per annum with effect from 36 months from the date of the initial Agreement till the date possession is delivered to them. The interest payable till 31.08.2015 shall be paid by 10.09.2015, in three equal installments, by the 10^th of each month i.e. by 10^th July, 2015, 10^th August, 2015 and 10^th September, 2015. Thereafter, compensation in the form of interest, in terms of this order, shall be paid on monthly basis by the 10^th of each succeeding month.

b.

Such of the complainants, who acquired allotment of the flat by way of repurchase more than one year after the date of the initial allotment of their respective flats, shall be paid compensation by way of simple interest at the rate of 12% per annum, with effect from 36 months from the date of repurchase by them, till possession is delivered to them. They will also be paid compensation at the rate of Rs.5/- per square foot of the super area of their respective flat for the period between 36 months from the date of the initial Buyers c.

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Agreement of their respective flats and 36 months from the date of repurchase of the flat by them.

The increase in service tax with effect from 01.06.2015 shall be borne by the opposite party, in all these cases.

d.

If the opposite party fails to deliver possession by the last date stipulated in its letter dated 27.05.2015, it shall pay compensation to all the complainants in the form of simple interest at the rate of 18% per annum, for each day there is delay, beyond the date stipulated in the said letter dated 27.05.2015, in delivering possession to the complainants.

e.

The opposite party shall pay Rs.5,000/- as the cost of litigation in each complaint.f. Having regard to the legal position explained I am of the considered view that the ends of justice would be met if a direction is issued to the OP to hand over the possession of flat, the OC having been received within a period of three months, subject to the complainant making due and necessary payment as due against him for the purpose. The period of three months shall count from the date of complainant makes the payment.

20.

Ordered accordingly.21. A copy of this order be forwarded to the parties to the case free of cost as is statutorily required.

22.

File be consigned to records.23.

(ANIL SRIVASTAVA)

MEMBER

PRONOUNCED ON

16.04.2021

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[HON'BLE MR. ANIL SRIVASTVA]

PRESIDING MEMBER

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