1. The case of the complainant is that OP advertised for allotment of floor in the “Tuskan city” Kundli in Village-Nangal Kalan Distt. Sonepat, Haryana. She came to know that OP was making allotment and selling ground floor measuring 1164 sq. ft. at the basic rate of Rs.2362-5400 per sq. ft. Apartment Buyers Agreement dated 30.07.2012 was executed in respect of unit no. T-61, Tuskan City, Kundli measuring 108.13 sq. meter (1164 sq.ft.). The total basic sale consideration came to Rs.27,49,996.56. The EDC and IDC were agreed at Rs.2,86,926.44. The total sum came to Rs.30,36,923/-. The OP was assured that apartment would be constructed after getting required permissions from Earthquake Department, Income Tax Department, Rain Harvesting Department, Fire Department and other concerned authorities as per rules. Complainant was astonished to receive the letter dated 06.02.2014 with a false final statement of account offering the possession and demanding Rs.13,95,098.85 without any explanation. The sum of Rs.28,73,526/- has already been paid as admitted by OP in its letter dated 06.02.2014. The area of the unit was increased from 1164 sq. ft. to 1429 sq.ft. Complainant and her husband visited the office of OP on 25.02.2014 and 05.03.2014. They demanded copy of document to ensure that unit has been built as per building bye-laws and the rules. OP demanded Rs.50,444.85 as interest whereas the interest was shown zero in statement dated 04.02.2014. OP was demanding Rs.1,87,125/- towards PLC charges though the complainant never made any request for any preferential location. Rs.10,000/- was wrongly demanded as miscellaneous charges. OP demanded additional demand of Rs.75,000/- on account of club membership which was never agreed. The complainant was not interested in membership of club.
2. The OP was bound to supply copy of the approved layout plan/drawings and NOC, Occupancy Certificate and Completion Certificate to complainant. The complainant is also entitled to other documents mentioned in para-7 of the complaint. She got issued a legal notice dated 11.03.2014. Hence this complaint for directing OP to execute sale deed/conveyance deed in respect of unit no.T-61, Ground Floor, Tuskan City, Kundli and to handover actual physical possession, restrain OP from selling, mortgaging, alienating, transferring or creating third party interest in the said unit. She also prayed for compensation of Rs.10 lacs towards physical harassment, mental agony and financial loss.
3. OP filed WS raising preliminary objections that complainant entered into agreement dated 30.07.2012 of her own will, PLC is applicable upon certain apartments such as park facing, wide road, sun facing. Allotment letter dated 14.11.2012 provided that PLC charges were applicable because of wide road features. Complain does not disclose any deficiency. The fact that complainant resides in Purana Naya Bans Road, Village-Holambi Khurd, Delhi and applied for an apartment in Kundli, Haryana goes to show that she applied for investment purposes On merits it admitted fact mentioned by the complainant. However, it stated that complainant confirmed that she had examined the licence, permissions, layout and attained knowledge of the law and rules in agreement itself. Director of town and Country Planning, Haryana has issued a letter dated 27.04.2012 approving revised plan of Group Housing Colony. It pleaded that it issued letter dated 11.03.2014 asking complainant to pay Rs.12,17,697.88 on or before 21.03.2014. It issues reminder dated 31.03.2014 asking complainant to pay Rs.12,30,115.77 on or before 11.04.2014. It prayed for dismissal of complaint.
4. Complainant filed rejoinder and her own affidavit in evidence. As compared to it, OP filed affidavit of Sh. Paras Arora, AR in evidence. Both the parties filed written arguments.
5. On 20.08.2019 the complainant moved an application under Order 6 Rule 17 CPC for amending prayer clause of the complaint to the effect that OP may be directed to refund the amount alongwith interest @24% per annum alongwith compensation of Rs.2 lacs and cost of Rs.55,000/-.
6. The OP opposed the application by submitting that in the original complaint, prayer was for possession. The complaint was filed in 2014. Now after five years, complainant cannot suddenly change her prayer and that too at the stage of final arguments. Counsel for OP relied upon the decision of Hon’ble Supreme Court in Vidyabai Vs. Padmalatha (2019) 2 SCC 409 to make out that amendment cannot be allowed at the stage of final arguments.
7. The case relied upon by counsel for OP is due to amendment of Order 6 Rule 17 CPC. Strictly speaking Order 6 Rule 17 CPC is not applicable to proceedings under CP Act as it does not find place in Section 13(4) to (7) Consumer Protection Act. It is only on the principles of Order 6 Rule 17 CPC and general law that amendment of pleadings is allowed by consumer courts. Thus the aforesaid decision is not applicable.
8. Otherwise law of amendment is very liberal. It can be at any stage, even at appellate stage. Counsel for Complainant submitted that complainant is not amending any fact. She wants to substitute the prayer from possession to that of refund. The agreement was executed in 2012 and now after eight years she cannot be compelled to accept possession. In doing so he placed reliance on decision of National Commission in Emaar MGF Land Ltd. Vs. Amit Puri II (2015) CPJ 568 NC in which it was held that after promised date of delivery, it is the discretion of complainant to accept possession or seek refund of amount paid with reasonable interest. It was further held that complainant cannot be made to wait indefinitely for delivery of possession. He also referred to decision of Hon’ble Supreme Court in Kalkata West International City Vs. Devasis Rudra II (2019) CPJ 29 in which it was held that buyers can be expected to wait for possession for a reasonable period. Period of seven years was not what is reasonable. This was followed by the National Commission in CC-2436/17 titled as Prem Lata Arora Vs. Today Homes & Infrastructure Pvt. Ltd. decided on 10.05.2019.
9. Counsel for complainant also relied upon the decision of Hon’ble Supreme Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan (2019) CPJ 34 to make out that one sided terms of the contract are unfair and unreasonable. This was followed by National Commission in CC-2524/17 titled as M/s. Amit Soni Vs. Umang Realtech Pvt. Ltd. decided on 06.03.2019.
10. Counsel for complainant further submitted that the offer of possession given by the OP is false inasmuch as OP does not have completion certificate till date. In support of his submission he drew my attention towards amended complaint which is accompanied by copy of letter dated 13.01.2020 from Country & Town Planning. This is in response to application under RTI and it recites that final completion certificate had not yet been applied even. So complainant is justifying in seeking refund.
11. In view of the submissions made by counsel for complainant, application for amendment is allowed.
12. Moreover, I may mention that even if application for amendment is treated as having not been allowed, still this Commission can issue directions for refund of the amount without there being any prayer in the original complaint. In doing so, I am supported by decision of National Commission in CC-46/15 titled as Parsvnath Exotica Vs. Parsvnath Buildwell decided on 06.05.2016. I may add that in Ajay Kumar Vs. Supertech (2019) SCC Online NCDRC 63 NC held that inordinate delay in handing over the delivery of possession of flat clearly amounts to deficiency in service. In CC-1764/17 titled as Ajay Nagpal Vs. Today Homes Infrastructure Pvt. Ltd. decided on 27.01.2020 National Commission held that delay in handing over of possession falls u/s 2(E) Consumer Protection Act.
13. In Shalabh Nigam Vs. Orris Infrastructures Pvt. Ltd. and Ors. MANU/CF/ 0287/2019, it was held that homebuyers ca
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n seek refund if flat is delayed beyond one year. The same proposition was laid down by Hon’ble Supreme Court in Fortune Infrastructures and Ors. Vs. Trevor D ‘Lima and Ors.MANU/SC/0253/2018. 14. The objection of OP that complainant made booking for investment is not sustainable. The reason being that burden of proving the same lay upon the OP as per decision of National Commission in Kavita Ahuja Vs. Shipra Estates I (2016) CPJ 31. The OP has not led any evidence to establish the same. 15. As a result of above discussion, the complaint is allowed and OP is directed to refund Rs.28,73,526/- with interest @10% per annum from the different dates of payment till date of refund alongwith cost of Rs.55,000/-. The order be complied with within 45 days from the date of receipt of copy of this order. 16. Copy of the order be sent to both the parties free of cost.