DEEPAK AGARWAL Vs. THREE C SHELTERS PVT. LTD.
LAWS(NCD)-2020-1-72
NCDRC
Decided on January 21,2020

DEEPAK AGARWAL Appellant
VERSUS
Three C Shelters Pvt. Ltd. Respondents




JUDGEMENT

R.K.AGRAWAL, J. - (1.) These Consumer Complaints, under Section 21 read with Section 12(1)(a) of the Consumer Protection Act, 1986 (for short "the Act"), have been filed by the Complainants, the allottees of Residential Flats/Apartments in a project, namely, "Greenopolis" (for short "the Project"), to be developed and constructed by the Opposite Party at Sector 89, Gurgaon, Haryana, seeking possession of their respective booked flats or refund of the amount paid with interest and compensation for the losses suffered by them on account of unfair and restrictive trade practices adopted and the deficient services rendered by the Opposite Parties in not handing over the possession of the allotted Flats/Apartments within the stipulated time.
(2.) Both the pairs of the Complainants have been allotted their respective flats by the Opposite Parties by executing identical "Allotment Letters"; the facts and questions of law involved in their cases are similar, inasmuch as physical possession of the allotted Flats have not been handed over within the committed period and almost similar reliefs have been prayed for by all the Complainants.
(3.) For the sake of convenience, the material facts, enumerated hereinafter, are taken from the Consumer Complaint No.3879 of 2017 titled as Deepak Agarwal and Anr. Vs. M/s. Three C Shelters Pvt. Ltd. and Anr. Concisely put, the Complainants Nos.1 and 2, who are husband and wife, being swayed by the various advertisements made by the Opposite Parties in respect of their housing project, namely, 'Greenopolis' which was to be raised at Sector 89, Gurgaon, Haryana, had jointly booked an Apartment in the said Project for a total consideration of Rs.1,02,83,880/-, by paying booking amount of Rs.8,50,000/- on 25.02.2012. The Project was to be consisted of 29 towers with flats ranging from 2BHK to 4BHK having super area from 1297 sq. ft. to 2750 sq. ft. Pursuant to the booking, the Complainants were allotted Apartment No.603 on 6th Floor in Tower 23, having super area of 2036 sq. ft. vide Allotment Letter dated 28-08-2012. Subsequently, the Opposite Parties executed the Apartment Buyer's Agreement, after a delay of about one year, on 20-06-2013 and that too after having collected Rs.26,76,114/- from the Complainants. In terms of the Agreement, the possession of the Apartment was to be delivered within 36 months with a grace period of six months from the date of issuance of Allotment Letter i.e. by 28-02-2016, subject to timely payment by all the buyers of the apartments in the Project. Complainants opted for the Construction Linked Plan and diligently made the payments, as and when demanded by the Opposite Parties. They paid an amount of Rs.90,53,310/-, in toto, by 19-04-2016 to the Opposite Parties. Since then, no further demands have been raised by the Opposite Parties. It is further averred that despite receipt of the amount of Rs.90,53,310/- i.e. about 88% of the total consideration, the Opposite Parties failed to hand over possession of the Apartment within the stipulated period i.e. by 28-02-2016. Further, the Opposite Parties had never disclosed, in the Project Layout Plan, Brochure or in the Agreement, that there is a huge sewage canal passing through the middle of the Project which is in close proximity to the tower in which the Complainants have been allotted their Apartment and that a high tension electric wire was also passing through the Project. Both these factors depreciate the value of the property and also have serious repercussions on the health. Complainants averred that they would have never opted for the said Project if these facts were known to them at the time of booking. As part of their averments, the Complainants have submitted that the Opposite Parties stopped the construction of the Project in early 2016 and have not raised a single demand since April, 2016 thereby jeopardizing the timely possession of the Apartment. The Complainants also raised protest with regard to passage of huge sewage drainage canal and the high tension electricity line, but the Opposite Parties failed to give any explanation for the same. The construction of the Project was still far from completion and there was no update available with respect to Tower 23 on the website of the Opposite Parties. It is also averred that one of the Opposite Parties had taken a high yield loan against receivables from IndoStar Capital Finance Ltd., an NBFC, in the form of non-convertible debentures, the proceeds of which are to be used to pre-pay debt from Xander Finance and Religare Credit Opportunities Fund and the rest of the capital is proposed to be used as working capital towards 10 of the existing projects of the Opposite Parties. This loan, which has been taken against collaterals, was detrimental and prejudicial to the interest of the Complainants. Thus, foreboding that the completion of the Project and handing over of possession of the booked Apartment is not possible in the near future, alleging the instances of failure of the Opposite Parties to complete the construction and to deliver the possession of the Apartment even after collecting substantial portion of consideration; that the funds collected from the Complainants have been diverted to the other projects by the Opposite Parties; inordinate delay in handing over possession; execution of the Apartment Buyer's Agreement after a delay of one year after collecting substantial amount; no affirmative time schedule given for completion and possession; the non-disclosure of passage of sewage drainage canal and high tension electricity line through the Project; as deficiency in service/unfair trade practice on the part of the Opposite Parties, the Complainants have filed this Complaint praying following directions to the Opposite Parties: (i) to handover possession of the Apartment, in conformity with the Buyer's Agreement, complete in all respects, with all additional facilities and to execute necessary and required documents of the said Apartment in favour of the Complainants within eight months from the date of filing of the Complaint; (ii) in the event, the prayer at (i) is not allowable, to refund the entire amount of Rs.90,53,310/- with penal interest @18% p.a. from the respective dates of receipt of each payment; (iii) to pay interest @18% p.a. on the amount deposited from the promised date of delivery of possession till the date of actual possession with all necessary documents and common areas and facilities as promised; (iv) to pay Rs.6,000/- per day in case of failure to provide possession within the stipulated time as directed by this Commission; (v) to make arrangements to cover the sewage drainage canal flowing through the project and to pay compensation amounting to 20% of the total consideration for loss in the value of the Apartment due to presence of the sewage canal and high tension wire; (vi) to refund the wrongly charged taxes like Service Tax and other charges like Preferential Location Charges with interest @12% p.a. from the date of receipt of such wrongful charges and taxes; (vii) to provide adequate car parking spaces in the Project and to refund the excess amount collected from the Complainants towards car parking slots with interest @12% p.a.; (viii) to pay Rs.5,00,000/- towards mental agony and harassment and (ix) to pay Rs.1,00,000/- towards the costs of litigation. ;


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