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Vimal Marwah v/s Logix Infratech Pvt. Ltd.


Company & Directors' Information:- LOGIX INFRATECH PRIVATE LIMITED [Active] CIN = U70101DL2010PTC202613

Company & Directors' Information:- K L S R INFRATECH LIMITED [Active] CIN = U45400TG2011PLC072158

Company & Directors' Information:- G R INFRATECH PRIVATE LIMITED [Active] CIN = U45201RJ2010PTC031015

Company & Directors' Information:- G R INFRATECH PRIVATE LIMITED [Amalgamated] CIN = U45201GJ2010PTC098472

Company & Directors' Information:- R T INFRATECH PRIVATE LIMITED [Active] CIN = U45400WB2011PTC160181

Company & Directors' Information:- D K S INFRATECH INDIA PRIVATE LIMITED [Active] CIN = U45400UP2015PTC070754

Company & Directors' Information:- P. N. A. INFRATECH PRIVATE LIMITED [Active] CIN = U45200UP2006PTC061782

Company & Directors' Information:- S K INFRATECH PRIVATE LIMITED [Active] CIN = U70102DL2009PTC195508

Company & Directors' Information:- B E INFRATECH PRIVATE LIMITED [Active] CIN = U70102UP2010PTC040469

Company & Directors' Information:- A K INFRATECH INDIA PRIVATE LIMITED [Strike Off] CIN = U45400DL2007PTC166364

Company & Directors' Information:- D. L. INFRATECH PRIVATE LIMITED [Active] CIN = U70102UP2012PTC051029

Company & Directors' Information:- V. S. INFRATECH (INDIA) PRIVATE LIMITED [Active] CIN = U45400UP2008PTC035313

Company & Directors' Information:- K A S INFRATECH PRIVATE LIMITED [Active] CIN = U70100DL2014PTC264637

Company & Directors' Information:- D H INFRATECH PRIVATE LIMITED [Active] CIN = U72200WB2007PTC114579

Company & Directors' Information:- P AND S INFRATECH PRIVATE LIMITED [Active] CIN = U45201OR2008PTC010495

Company & Directors' Information:- D S INFRATECH PRIVATE LIMITED [Active] CIN = U45400HR2010PTC040726

Company & Directors' Information:- A TO Z INFRATECH PRIVATE LIMITED [Amalgamated] CIN = U45400DL2008PTC173245

Company & Directors' Information:- AT INFRATECH PRIVATE LIMITED [Strike Off] CIN = U17291DL1994PTC063808

Company & Directors' Information:- P R INFRATECH PRIVATE LIMITED [Active] CIN = U45400DL2008PTC184432

Company & Directors' Information:- N N INFRATECH PRIVATE LIMITED [Active] CIN = U45200DL2012PTC233232

Company & Directors' Information:- J. B. INFRATECH INDIA PRIVATE LIMITED [Active] CIN = U45202KA2007PTC041469

Company & Directors' Information:- S P INFRATECH PRIVATE LIMITED [Active] CIN = U28113DL2009PTC193089

Company & Directors' Information:- H L INFRATECH PRIVATE LIMITED [Active] CIN = U72900DL2007PTC163051

Company & Directors' Information:- P J K INFRATECH INDIA LIMITED [Strike Off] CIN = U70109PB2013PLC037175

Company & Directors' Information:- B AND H INFRATECH LIMITED [Active] CIN = U45209CH2010PLC032536

Company & Directors' Information:- T V A INFRATECH LIMITED [Strike Off] CIN = U70109DL2006PLC154309

Company & Directors' Information:- M P INFRATECH LIMITED [Strike Off] CIN = U45200MP2010PLC024751

Company & Directors' Information:- C L INFRATECH PRIVATE LIMITED [Strike Off] CIN = U70102HR2012PTC045548

Company & Directors' Information:- VIMAL INDIA PRIVATE LIMITED [Strike Off] CIN = U24231DL1999PTC099648

Company & Directors' Information:- S. R. INFRATECH PRIVATE LIMITED [Active] CIN = U45200MH2009PTC190243

Company & Directors' Information:- C H S INFRATECH PRIVATE LIMITED [Strike Off] CIN = U45200TG2013PTC085657

Company & Directors' Information:- A G H INFRATECH PRIVATE LIMITED [Active] CIN = U45202UP2013PTC060726

Company & Directors' Information:- U. P. INFRATECH PRIVATE LIMITED [Active] CIN = U45200DL2008PTC174142

Company & Directors' Information:- V. MARWAH AND CO. PRIVATE LIMITED [Strike Off] CIN = U51505DL1993PTC052638

Company & Directors' Information:- INFRATECH INDIA PVT LTD [Strike Off] CIN = U99999DL1997PTC084925

Company & Directors' Information:- MARWAH & CO PVT LTD [Strike Off] CIN = U36900WB1954PTC005657

Company & Directors' Information:- M S INFRATECH PRIVATE LIMITED [Strike Off] CIN = U45400DL2007PTC164458

Company & Directors' Information:- S F S INFRATECH PRIVATE LIMITED [Strike Off] CIN = U45400UP2011PTC043142

Company & Directors' Information:- G. L. INFRATECH PRIVATE LIMITED [Strike Off] CIN = U45400UP2011PTC045841

Company & Directors' Information:- S A C INFRATECH PRIVATE LIMITED [Strike Off] CIN = U74120UP2011PTC047111

Company & Directors' Information:- L R INFRATECH PRIVATE LIMITED [Strike Off] CIN = U74120UP2013PTC055304

Company & Directors' Information:- K A C INFRATECH PRIVATE LIMITED [Strike Off] CIN = U45209TG2011PTC075843

Company & Directors' Information:- S G A INFRATECH PRIVATE LIMITED [Under Process of Striking Off] CIN = U70102UP2014PTC066190

Company & Directors' Information:- V & P INFRATECH PRIVATE LIMITED [Active] CIN = U70102UP2015PTC071618

Company & Directors' Information:- C W LOGIX PRIVATE LIMITED [Active] CIN = U72900DL2012PTC237857

Company & Directors' Information:- S M INFRATECH PRIVATE LIMITED [Strike Off] CIN = U45400DL2007PTC171217

Company & Directors' Information:- H R INFRATECH PRIVATE LIMITED [Strike Off] CIN = U45400DL2012PTC238429

Company & Directors' Information:- L N D INFRATECH PRIVATE LIMITED [Strike Off] CIN = U45400DL2012PTC242018

Company & Directors' Information:- G D INFRATECH PRIVATE LIMITED [Strike Off] CIN = U45400DL2013PTC256246

Company & Directors' Information:- INDIA INFRATECH PRIVATE LIMITED [Active] CIN = U45400DL2013PTC257567

Company & Directors' Information:- S N INFRATECH PRIVATE LIMITED [Active] CIN = U45201DL2005PTC135712

Company & Directors' Information:- S N S INFRATECH PRIVATE LIMITED [Active] CIN = U70109DL2013PTC255712

Company & Directors' Information:- A G INFRATECH PRIVATE LIMITED [Active] CIN = U70200DL2012PTC242598

Company & Directors' Information:- M R INFRATECH PRIVATE LIMITED [Strike Off] CIN = U70109DL2006PTC156032

Company & Directors' Information:- N K INFRATECH PRIVATE LIMITED [Active] CIN = U70102HR2011PTC042235

Company & Directors' Information:- R & F INFRATECH PRIVATE LIMITED [Strike Off] CIN = U45400TG2008PTC059851

Company & Directors' Information:- A A INFRATECH PRIVATE LIMITED [Strike Off] CIN = U45200DL2007PTC158616

Company & Directors' Information:- R A INFRATECH PRIVATE LIMITED [Strike Off] CIN = U45200DL2007PTC159385

    Consumer Case No. 785 of 2018

    Decided On, 16 April 2019

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR. JUSTICE V.K. JAIN
    By, PRESIDING MEMBER

    For the Complainant: Deepak Kohli, Advocate. For the Opposite Parties: Nitish K. Sharma, Advocate.



Judgment Text

The complainants applied to the opposite party Logix Infratech Pvt. Ltd. for allotment of residential apartment in a project namely ‘Blossom Greens’, which the opposite party was to develop in Sector 143 of Noida. Vide allotment letter dated 21.7.2011, apartment No. K 601 in the above referred project was allotted to them for a consideration of more than Rs.1.00 crores. The parties then executed a flat-buyers agreement dated 25.8.2011, incorporating their respective obligations in respect of the said transactions. As per Clause 17 of the terms and conditions of allotment, the developer was endeavour to complete the construction and deliver possession within a period of eighteen months, though a grace period of six months was also available for this purpose. Thus, the possession ought to have been delivered within two years from the execution of the agreement on 25.8.2011. The grievance of the complainants is that the possession of the allotted flat has not even been offered to them despite they having already paid Rs.96,74,631/- to the opposite party. The complainants are therefore, before this Commission, seeking refund of the said amount, with compensation etc.

2. The complaint has been resisted by the OP which has admitted the allotment made to the complainants as well as the payment received from them. It is however, claimed that the complainants had committed delay in making payment for which interest amounting to Rs.70,159/- was levied on them. It is also alleged vaguely that the project got delayed as NGT ordered use of only recycled water for construction purposes and rapidly changing price of the material further hit the progress of the work.

3. Though the complainants had allegedly delayed payment of some instalments, interest was for the said delay debited in their account. If the complainants had defaulted in making timely payments of the instalments, nothing prevented the OP from cancelling the allotments made to the complainants, forfeiting the Earnest Money and returning the balance amount to the complainants. That having not been done and delayed payment having been accepted with interest, the alleged default was condoned by the OP. Hence, the relief sought by the complainants cannot be denied on account of the alleged delay.

4. The opposite party has not placed on record the order of the NGT referred in its written version. In the absence of the said order, it cannot be known when the NGT directed use of only the recycled water for the construction purposes. In any case, if a ban was imposed on the use of the ground water for the construction purposes, it was for the builder to arrange the water from such alternative sources where it could be available. The flat buyers cannot be penalised for the order of the NGT, prohibiting use of the ground water for construction purposes.

5. As per the terms and conditions of allotment, the possession ought to have been delivered within two years of 25.8.2011, when the agreement was executed between the parties. The possession therefore, ought to have been delivered latest by 25.8.2013. More than five years have since expired but the possession of the allotted flat has not been offered and the construction is not complete, even as on today. The complainants cannot be made to wait indefinitely for the possession of the allotted flat when there has already been a delay of more than five years. The complainants are entitled to refund of the amount paid by them to the OP, along with compensation.

6. In Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra Civil Appeal No. 3182 of 2010 decided on 25.3.2019, the possession of the flat was to be delivered by the builder by 30.6.2009. However, the completion certificate was received by the builder only on 29.3.2016. On a consumer complaint filed by the respondent, the State Commission directed refund of the amount paid by the complainant to the appellant, before the Hon’ble Supreme Court, with interest and compensation. The order passed by the State Commission was maintained by this Commission to the extent payment of interest was directed. Being aggrieved, the appellant approached the Hon’ble Supreme Court by way of an appeal and submitted that the developer having made substantial investment in the project, a direction for refund was not warranted. It was also contended before the Hon’ble Supreme Court that the builder was not liable to pay interest at more than the saving bank interest of the State Bank of India, the parties having agreed so at the time of execution of the buyers agreement. Rejecting the contention, the Hon’ble Supreme Court inter-alia observed and held as under:

“While considering the rival submissions, we must at the outset advert to the following clause which was contained in the Buyer’s Agreement:

“Unless prevented by circumstances beyond the control of the company and subject to force majeure, KWIC shall ensure to complete the said unit in all respects within 31stDecember, 2008 only for the cluster D. Further there will be a grace period of six months (up to 30th June, 2009) from the date of completion. In case the possession is not transferred after expiry of the said grace period, KWIC will be liable to pay prevailing saving bank interest of the State Bank of India for each month of delay on the money given by the allottee as compensation but no compensation will be paid on account of force majeure reasons.”

It is the above clause which is pressed in aid by the developer. Under the aforesaid clause, any delay beyond 30 June, 2009, would result in the developer being required to pay interest at the prevailing savings bank interest of the State Bank of India. Interestingly, where the buyer is in default, the agreement stipulates that interest at the rate of 18 percent from the date of default until the date of payment would be charged for a period of two months, failing which the allotment would be cancelled by deducting 5% of the entire value of the property. The agreement was evidently one sided. For a default on the part of the buyer, interest at the rate of 18% was liable to be charged. However, a default on the part of the developer in handing over possession would make him liable to pay interest only at the savings bank rate prescribed by the SBI. There is merit in the submission which has been urged by the buyer that the agreement was one sided. The clause which has been extracted in the earlier part of this order will not preclude the right and remedy available to the buyer to claim reasonable interest or, as the case may be, compensation.

The essential aspect of the case which is required to be analysed is whether the buyer was entitled to seek a refund or was estopped form doing so, having claimed compensation as the primary relief in the consumer complaint. The Buyer’s Agreement is dated 2 July, 2007. In terms of the agreement, the date for handling over possession as 31 December, 2008, with a grace period of six months. Even in 2011, when the buyer filed a consumer complaint, he was ready and willing to accept possession. It would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession. By 2016, nearly seven years had elapsed from the date of the agreement. Even according to the developer, the completion certificate was received on 29.3.2016. This was nearly seven years after the extended date for the handing over of possession prescribed by the agreement. A buyer can be expected to wait for possession for a reasonable period. A period of seven years is beyond what is reasonable. Hence, it would have been manifestly unfair to non-suit the buyer merely on the basis of the first prayer in the reliefs sought before the SCDRC. There was in any event a prayer for refund.

In the circumstances, we are of the view that the orders passed by the SCDRC and by the NCDRC for refund of moneys were justified.”

In the present case there has already been a delay of more than five years, and the possession is still not offered.

7. Clause 35 of the terms and conditions of allotment reads as under:

“The Allottee (s) agrees and acknowledges that in the event that the developer is unable to allot the apartment applied for, the developer shall consider allotment of an alternative apartment or refund the amount, deposited by the allottee (s) along with simple interest @ 10% per annum, and shall not be liable for any other damages / compensation on account of such inability (on the part of the developer) to provide the apartment applied for by the allottee(s).”

8. In view of the above referred clause, the complainants have pressed for refund of the principal amount paid by them to the OP, along with interest @ 10% per annum, as no alternative allotment has been offered to them.

9. It was contended by the learned counsel for the OP that in view of the provisions contained in Real Estate Regulatory Authority Act (RERA), this Commission lacks jurisdiction to entertain a complaint, in respect of the project subject matter of this complaint. Similar contentions were urged before this Commission and rejected vide order dated 15.04.2019 passed in CC 1764 of 2017 Ajay Nagpal Vs. M/s. Today Homes & Infrastructure Pvt. Ltd. and connected matters. The following was the view taken by this Commission while rejecting such contentions:

“40. From the various decisions of the Hon’ble Supreme Court referred to above, the following principles emerge:-

(i) The Consumer Protection Act, 1986 is a supplement Act and not in derogation of any other Act;

(ii) Any Consumer who is aggrieved by any defect in goods purchased or deficiency in service as also regarding unfair trade practice, can approach the Consumer Fora by filing the complaint under the Act. Even a Class Action Complaint is permissible under the Act.

(iii) The Consumer Fora constituted under the Consumer Protection Act, 1986 are not Civil Courts.

(iv) The Consumer Fora can provide for the reliefs as contemplated under Section 14 of the Act.

(v) A Consumer cannot pursue two remedies for the same cause of action. However, if a Consumer has not approached for redressel of its grievance under the particular Statute, the Consumer can approach the Consumer Fora under the Consumer Protection Act. But, if the Consumer had already approached the Authority under the relevant Statute, he cannot simultaneously file any complaint under the Consumer Protection Act.

(vi) Mere availability of a right to redress the grievance in a particular Statute will not debar the Complainant/Consumer from approaching the Consumer Fora under the Act.

(vii) Even though under Sections 14, 15, 18 and 19 of RERA, various provisions have been made which are to be followed by the Developer/Promoters and the rights and duties and the return of amount as compensation as also rights and duties of Allottees, yet same cannot mean to limit the right of the Allottee only to approach the Authorities constituted under the RERA, he can still approach the Consumer Fora under the Consumer Protection Act.

(viii) Section 71 of RERA which gives the power to adjudicate, does not expressly or impliedly bar any person from invoking the provisions of the Consumer Protection Act. It has also given a liberty to the person whose Complaint is pending before the Consumer Fora to withdraw it and file before the RERA Authorities.

(ix) Section 79 of RERA only prohibits the jurisdiction of Civil Court from entertaining any suit or proceeding in respect of any matter which can be decided by the Authorities constituted under the RERA. As the Consumer Fora are not Civil Courts, the provisions of Section 79 which bar the jurisdiction of Ci

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vil Courts, will not be attracted. So far as to grant injunction is concerned, only that power has been taken away by Section 79. But, it does not, in any manner, effect the jurisdiction of the Consumer Fora in deciding the Complaints. Both, the Consumer Protection Act, 1986 and the Real Estate (Regulation and Development) Act, 2016 are supplemental to each other and there is no provision in the Consumer Protection Act which is inconsistent with the provisions of RERA. 41. Applying the aforesaid principles to the present case, we are of the considered opinion that this Commission has jurisdiction to proceed with the Complaint Cases filed by the Consumers and neither Section 71 nor Section 79 and nor Section 89 creates any embargo or prohibits the jurisdiction of the Consumer Fora.” 10. For the reasons stated hereinabove, the complaint is disposed of with the following directions : (i) The OP shall refund the entire principal amount received from the complainants to them, along with compensation in the form of simple interest @ 10% per annum from the date of each payment till the date of refund. (ii) The OP shall pay Rs.25,000/- as the cost of litigation to the complainant. (iii) The payment in terms of this order shall be made within three months from today.
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22-06-2016 Vimal Alias Thomas Versus State of Kerala, Represented By Its Secretary, Department of Local Self Government, Thiruvananthapuram & Others High Court of Kerala
17-06-2016 V. Vimal Versus The District Collector, Cuddalore & Another High Court of Judicature at Madras
03-06-2016 M/s. Vistaar Infratech (I) Pvt. Ltd. Versus Managing Director, Bharat Heavy Electricals Limited & Another High Court of Rajasthan Jaipur Bench
20-05-2016 Ravi Marwah Versus Unitech Reliable Projects Pvt. Ltd. National Consumer Disputes Redressal Commission NCDRC
28-04-2016 M/s. Church of South India Trust Association ? Medak Diocese, rep. by its Treasurer and General Power of Attorney Holder, Dr. B. Vimal Sukumar & Another Versus $ The Medical Council of India, rep. by its Secretary & Another In the High Court of Judicature at Hyderabad
13-04-2016 Puda Versus Vimal Opal National Consumer Disputes Redressal Commission NCDRC
01-04-2016 Vimal Maruti Burute & Another Versus State of Maharashtra High Court of Judicature at Bombay
01-04-2016 Mukul Sharma Versus M/s VSR Infratech Pvt. Ltd. Delhi State Consumer Disputes Redressal Commission New Delhi
01-04-2016 Leelavati Versus M/s VSR Infratech Pvt. Ltd. Delhi State Consumer Disputes Redressal Commission New Delhi
27-01-2016 Jivana Devi Yogendra Nath Adhar & Another Versus Vimal Kumar Dayaram Makane(Roy) & Another Supreme Court of India
07-01-2016 Premium Acres Infratech Pvt. Ltd., & Others Versus Jagir Singh Gill son of Sh.Gulzara Singh Gill Union Territory Consumer Disputes Redressal Commission UT Chandigarh
07-01-2016 In Re: Vimal Singh Rajput Versus Maruti Suzuki India Ltd. Competition Commission of India
21-12-2015 Vimal & Others Versus Sau Dnyandevi Maharshtra State Consumer Disputes Redressal Commission Nagpur
11-09-2015 CIT Versus Vimal Chand Surana High Court of Rajasthan Jaipur Bench
02-09-2015 Ram Khilauni Versus Vimal Kumar High Court of Judicature at Allahabad
01-09-2015 Sheoji Ram Choudhary Versus Vimal Kumar @ Vimlesh Kumar High Court of Rajasthan Jaipur Bench
01-09-2015 Global Innovsource Solutions P. Ltd. Versus Zep Infratech Ltd. High Court of Gujarat At Ahmedabad
01-09-2015 Suresh Kumar & Another Versus Dr. K.G. Marwah & Another National Consumer Disputes Redressal Commission NCDRC