S.D. Agarwal :
1. This is a complaint filed by the complainants alleging deficiency in service on the part of the opposite party in not completing the construction and handing over the possession of the flat even after receiving 80% of the total consideration within prescribed time limit.
2. Brief facts of the case as narrated by the complainants are that the complainants booked a residential flat in the newly launched township of the opposite party namely ‘Park Serene’ at Kolar Road, Bhopal for which on 30.09.2011 parties entered into an oral agreement in respect of 3 BHK Flat (Fully Air-Conditioned with Modular Kitchen) at Apollo-2 Tower, Park Serene, Kolar Road, Bhopal and the opposite offered to deliver the possession of the same within one year from the date of said agreement andit was assured that the possession of the Flat would be delivered to the complainants on or before 24.10.2012 i.e. before Dussehra. Since the complainants took financial assistance by way of loan from HDFC Bank, M. P. Nagar, Branch, Bhopal, therefore a Tripartite Agreement was executed between the Complainants, Opposite Party and the HDFC Bank Ltd. on 16.12.2011. The Bank and the Opposite Party insisted the complainants to execute an Indemnity Bond promising that possession of the Flat would be delivered to the complainants within 20 months, instead of one year. As the Flat was assured to be under construction, the said Indemnity Bond came to be executed by the complainants in favour of HDFC Bank Ltd, on the same day, i.e. 16.12.2011.
3. It is alleged that against the total sale consideration (i.e. cost of the Flat) of Rs.21 lacs, the complainants on different dates, till January-2012 had paid Rs.18,87,500/-.The opposite party thereafter issued an Allotment-cum-Acceptance Letter to the complainants. It is further stated that having paid almost 80% of the total sale consideration to the opposite party, the complainants have paid the principal amount of Rs.3,54,515/- and an interest of Rs.3,62,621/- to their Banker, the HDFC Bank Ltd. till 31.03.2016 towards repayment of loan. But there is no action on the part of the opposite party so far, as the opposite party did not deliver the possession of the Flat to the complainants, so far. Apart from liability of payment of interest on the loan amount, the complainants are suffering from hardships and inconvenience due to non-delivery of the possession of the flat, which ought to have been delivered to them in the year 2012.
4. As there appeared no chance of completion of construction of the flat as per agreement and the prescribed time limit of possession of flat had already passed, the complainants issued a registered notice on 23.06.2014 to opposite party, but no response was given by the opposite party, which clearly shows that the opposite party is not only deficient and negligent in delivering the possession of the flat to the complainants but has also committed unfair trade practice, leaving the complainants to wait for indefinite period for possession of their Flat. It is further stated that in the Allotment-Cum-Acceptance Letter, it is specifically provided that the Allottee (the complainants) shall be liable to pay to the Developer (opposite party) interest @ 24% p.a. on all amounts due and payable by them, if the amounts are outstanding for more than 7 days. Hence, the complainants are also entitled to claim interest at the rate of 24% p.a. on the total amount paid by them to the opposite party from the date of payment in case of default on the part of the oppositeparty in not delivering the possession of the Flat to the complainants. The complainants therefore filed the present complaint claiming refund of the amount deposited by the complainants with interest and compensation.
5. The opposite party filed their reply wherein they have admitted certain facts and declined certain facts. It is admitted that they have launched township namely ‘Park Serene’ at Kolar Road but it is denied that there was an oral agreement between the complainants and the opposite party. It is admitted that the complainants had purchased a three BHK Flat No.402 situated at Appollo-2 tower and for which a written agreement Allotment-Cum-Acceptance Letter was executed between them but it is denied that any assurance regarding Modular Kitchen and AC room was given. It is also denied that any time limit regarding construction was given. It is true that the complainants for their financial help took loan and for which a tripartite agreement was executed but it is stated that the opposite party never gave an assurance to the complainants that the construction work will be completed within 20 months. It is further stated that the cost of the flat was Rs.21,00,000/-, out of which the complainants paid only Rs.18,87,500/- remaining Rs.1,23,000/- was to be paid at the time of plaster and Rs.89,500/- was to be paid by the complainants at the time of taking possession. As per agreement on not being deposited the amount in time, the complainants had to pay 24% compound interest in every three months along with penalty but they failed to pay the same. It is further submitted that the opposite party, as per instructions of the complainants, did extra construction work in the flat, additional cost of which amounting to Rs.72,000/- along with interest was also not paid by complainants. The complainants themselves are defaulters, therefore, they are not entitled to get any relief from the Commission.
It is further submitted that the opposite party completed the construction work of the township and since the complainants have not made the full payment with interest, therefore, the possession of the flat was not given to them. The opposite party has not committed any deficiency in service. The opposite party started giving possession to other residents from March-2013. Since the complainants did not pay the full amount and were defaulters, therefore, they are not entitled to get any amount from the opposite party. The opposite party never stated any time-limit regarding completion of construction work. The whole township has already been completed and the other residents have also been given possession of their flats. Since the complainants have not paid the remainingamount in time, which they had to pay with interest which comes out to be Rs.6,98,012/- hence they have not been given possession of the flat. If they agree to pay the said amount, the opposite party will hand over the possession of the flat to them. The complainants have not paid the amount as per schedule and as per terms of agreement, thus, they are not entitled to any relief. The complainants have also not paid the amount of service tax and vat (as mentioned in the agreement) to the opposite party. On account of non-payment of said amount, the complainants have to pay the interest and penalty for which they themselves are responsible. It is further submitted that since the complainants have not paid the balance amount, amount for additional work along with interest in timeand penalty knowingly therefore, they are not entitled to get any relief. Flat of the complainants is ready and other residents are also residing in the same township. Thus it is prayed that the complaint, being baseless, be dismissed.
6. We have heard learned counsels for parties and perused the record.
7. Learned counsel for complainants have reiterated the same facts as have been stated in the complaint that against the total sale consideration i.e. cost of the Flat Rs.21 lacs, the complainants, on different dates, till January-2012, had already paid Rs.18,87,500/-., The opposite party thereafter issued an Allotment-cum-Acceptance Letter to the complainants. He has also argued that having paid almost 80% of the total sale consideration to the opposite party, the complainants have paid a huge amount to the HDFC Bank Ltd. till 31.03.2016 towards repayment of loan. But there is no action on the part of the opposite party to deliver the possession of the Flat to the complainants so far. Apart from liability of payment of interest on the loan amount, the complainants are suffering from hardships and inconvenience due to non-delivery of possession of the flat which ought to have been delivered to them in the year 2012. It is further argued that as per Allotment-Cum-Acceptance Letter, the complainants shall be liable to pay to the Developer (opposite party) interest @ 24% p.a. on all amounts due and payable by them, if the amounts are outstanding for more than 7 days. Hence, the complainants are also entitled to claim interest at the rate of 24% p.a. on the total amount paid by them to the opposite party from the date of payment in case of default on the part of the opposite party in not delivering the possession of the Flat to the complainants. Therefore, the opposite party has committed gross deficiency in service and unfair trade practice. He therefore prayed that the complaint be allowed.8. On the other hand, learned counsel for opposite party builder/developer argued that since the township has already been completed and they have started giving possession of the flats to the other residents since 2013 and other residents are residing in the same township but since the complainants have not paid the full amount (balance amount), the amount for additional work, along with interest and penalty as per agreement, they were not given possession of the flat. The opposite party is always willing to give possession of the flat to the complainants as the flat is ready to be delivered but only on payment of balance amount along with interest and penalty. As and when the complainants pay the remaining amount, the possession will be handed over to them. It is further argued that the opposite party have not committed deficiency in service and unfair trade practice. He therefore prayed that the complaint be dismissed.
9 The questions which arose for our consideration in this complaint are 1) Whether there is deficiency in service on the part of the opposite party in not giving possession of the constructed flat in time as alleged by the complainants and 2) Relief.10. After hearing learned counsel for parties and ongoing through the complaint, documents, reply of opposite parties, affidavits and other evidentiary material, we find that complainant has filed an agreement namely, Allotment cum Acceptance Letter (C-1) executed between both the parties. This document C-1 does not bear any date on which day it was signed but this document has not been challenged by the opposite party. Thereafter a tripartite agreement (C-2) among the complainant, opposite party and the bank has been executed on 16.12.2011. Therefore, the contention of the complainants that oral agreement reached between the two cannot be disallowed because after execution of Allotment cum Acceptance Letter, within two & half months, tripartite agreement was also executed. Legal notice sent by the complainants also confirms that 80% of the cost of the flat has been paid to the opposite party. Though the opposite party reiterated in their written statement that the flats are ready for possession and some of the purchasers took possession of the flats, but any evidence to this submission has not been filed by the opposite party. Written statement speaks that there was no time-limit for delivering the possession of the flat. Allotment-cum-Acceptance Letter also does not bear any provision for any time period for handing over the possession of the flat. The Allotment-cum-Acceptance Letter executed between the parties is arbitrary and in favour of vendor and detrimental to the interest of the consumer/purchaser. The complainantscannot be made to suffer for indefinite period for taking possession of the flat. The opposite party cannot take pretext of this lacuna that there was no time limit. We also find from the record that the opposite party reiterated that the possession of the flats have been given to the other purchasers but there has been produced no evidence in support of this contention, therefore, the contention of the opposite party that flats are ready and habitable cannot be accepted. Even if it is presumed, that the flat is ready for delivery to the complainant, there is no evidence of any occupancy certificate issued by any competent local authority that the flat is habitable.
11. Therefore, we see that the agreement Allotment-cum-Acceptance Letter is arbitrary and detrimental to the genuine interest of consumers and unilaterally favouring the opposite party. This cannot be allowed to happen. Since the opposite
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party has failed to prove that the flat is ready and habitable as no certificate from the competent authority has been furnished. After lapse of seven years, the complainants have not been handed over the possession of the flat from the date of initial allotment. We observe that as the buyer/complainant cannot be made to suffer indefinitely, therefore, we hold the opposite party guilty of unfair trade practice and deficiency in service. Since the opposite party has failed to deliver possession of the flat allotted to the complainant, even in more than five years from the initial allotment, in our opinion, the complainants are entitled to refund of the amount paid by them to the opposite party along with compensation. We lend support to our view from the decision of Hon’ble National Commission in Cosmocity Flat Buyers Welfare Society Vs Adel Landmarks Ltd decided on 30 November, 2017. 12. In view of the above, considering the facts and circumstances of the matter, we allow the complaint and direct the opposite party for refund of entire amount paid by the complainant (Rs.18,87,500/-), to the complainant, along with interest @ 12% p.a. from the date of last instalment paid by the complainants, till realization. The opposite party is also directed to pay Rs.1,00,000/- as compensation to complainants for mental agony and hardships suffered and Rs.10,000/- as cost of litigation.