KAVIT AHUJA Vs. SHIPRA ESTATE LTD

JUDGEMENT

(1.) Ghaziabad Development Authority (GDA) started construction of 14 Multi -storied Residential Apartment Towers. However, the construction of the aforesaid residential towers ran into difficulties and came to be a grinding halt, in the year 1995. The Authority then decided to dispose them off, either through an outright sale/lease deed or through a joint venture agreement, where the joint venture would complete and market the flats on behalf of the GDA in such a manner that it was able to recover full cost of its investment and highest possible margin, without any further risk on its investments and thereafter, allow the joint venture partner to obtain a return on its investments. The flats were to be advertised and marketed by the joint venture partner and the deed of conveyance was to be executed only by GDA, which continued to be the sole owner of the property.

(2.) THE complainant Smt. Kavita Ahuja submitted three separate applications for purchase of flats in the aforesaid project and paid the booking amount of Rs.5.00 lacs each against all the three bookings. Three separate Letters of Allotment were issued to the complainant, allotting flats No. Deodar 1301, Deodar 1302 and Deodar 1303, to her for a consideration of Rs.1,09,76,100/ -, 1,13,93,825/ - and 1,25,66,150/ - respectively. The construction was to be completed within 22 months of the date of commencement. The complainant paid a total sum of Rs.65,85,800/ -, 68,36,400 and 75,39,730/ - respectively against flat No. Deodar 1301, Deodar 1302, and Deodar 1303 respectively. However, the developer failed to complete the construction within the stipulated time and according to the complainant when she visited the site on 02.02.2008, she found that the construction had barely commenced with no prospects of its being completed in near future. The complainant wrote a letter to the developer, seeking complete details as to the stage of construction of the flats and the date on which the possession would be handed over to her. The developer however, did not respond to the said letter of the complainant. Later, vide letter dated 12.3.2009; the developer intimated a revised installment schedule on 31.3.2009. In reply, the complainant pointed out to the developer that it had failed to hand over the possession of the flat and sought refund of the money she had paid along with interest on that amount @ 21% per annum. In reply, the developer offered a rebate of Rs.5/ - per sq. ft. per month to the complainant which was not acceptable to her. Being aggrieved from the failure to refund the amount paid by her, the complainant is before this Commission, seeking refund of the aforesaid amount, alongwith interest @ 21% per annum, compensation and cost of litigation. Initially, the complaint was filed only against the developer. Later on, opposite party No. 2 and 3 were impleaded in view of the preliminary objection taken by the developer.

(3.) THE complaints have been resisted by the developer on the ground that (i) time was not the essence of the contract between the parties (ii) the delay in completion of the project took place due to adverse global market scenario which seriously affected the infrastructure and development projects across the Globe (iii) In case of delay, compensation is payable only in terms of Clause -11 of the Agreement, which provides for compensation at the rate of Rs.5/ - per sq. ft. of the super area of the flat per month, for the period of delay in the cases where delay was due to reasons other than force -majeure, unknown availability of material, change of Laws etc. and (iv) if the complainant wants to cancel the booking, 10% of the price of the flat is liable to be forfeited by the developer. (v) The complainant having booked the flats for investment cannot be said to be a consumer.