MOHIT SETH Vs. SUNWORLD RESIDENCY PVT. LTD.

JUDGEMENT

(1.) The case of the complainants in brief is that they were aspiring of owning a house of their own and impressed by the advertisement claim of Opposite Party No.1 / Builder, they had booked a flat for themselves. They were also informed by opposite party no.1 during interaction that opposite party no.2, HDFC, has approved the said housing project and was offering loans to the prospective home buyers. Impressed by the impressive promise made by the opposite parties, the complainants booked a flat in the housing project, called, 'Sunworld Arista' located at Sector 168, Plot No.GH-lC, Noida Expressway, Noida, Uttar Pradesh. The total consideration price of the said flat was Rs.1,36,76,375/-. The complainants entered into a Builder Buyer Agreement with opposite party no.1 who was the builder on 20.02.2015 and paid a sum of Rs.11,43,381/- towards the booking amount. Thereafter, they were allotted apartment no. T-1/1502 on 15th floor of Tower-1. On 21.02.2015, a supplementary agreement was also entered into with the opposite party no.1. Under this supplementary agreement, the complainants were given an option to cancel the allotment of the apartment on expiry of 24 months from the date of disbursement of the bank loan amount by a notice to be served 30 days prior to the date of expiry of 24 months. As per clause 6 of the said supplementary agreement, the opposite party no.1 had undertaken to pay the Pre -EMIs to opposite party no.2. Also, under clause 7 and 9 of the said supplementary agreement, the opposite party no.1 had undertaken to pay the entire loan advance plus taxes, if any, to opposite party no.2 in case the complainants opt to cancel the allotment in terms of supplementary agreement and in that eventuality, the opposite party no.1 had promised to return the entire booking amount of Rs.11,43,381/- alongwith interest @ 10% amounting to Rs.7,71,750/-, totaling to Rs.19,15,131/- On the same day i.e. 21.02.2015, a Tripartite Agreement between the complainants, opposite party no.1 and opposite party no.2 was also entered into whereby opposite party no.2 had agreed to provide a loan of Rs.1,02,00,000/-. It is contended by the complainants that as per clause 8 of Tripartite Agreement, in case of cancellation of allotment for any reason whatsoever, it was incumbent upon the opposite party no.1 to refund the entire loan amount to opposite party no.2. The entire loan amount was disbursed in the month of February, 2015. The opposite party no.1, however, had failed to complete the construction of the said property within the stipulated period and even after expiry of 22 months from the disbursal of the loan, the project was nowhere near completion. Exercising its right under the supplementary agreement, the complainants wrote a letter dated 14.12.2016 to opposite party no.1 whereby the allotment / booking of the apartment was cancelled. Opposite party no.2 duly was informed of the cancellation of the allotment / booking of the said flat. The complainants also demanded refund of the advance payment made alongwith interest as promised by opposite party no.1. The opposite party no.1 replied it vide email dated 15.12.2016 and requested for an extension of 12 months for giving the possession and promised that the additional burden on account of EMIs to opposite party no.2 would be borne by it. The complainants vide their email dated 16.12.2016 refused to accede to this request of opposite party no.1 and again asked for the refund of the promised amount. No reply, however, was received from opposite party no.1 and, thereafter, a reminder email on 20.12.2016 was also sent. Thereafter, again an email dated 22.01.2017 was sent whereby attention of opposite party no.1 was brought to clause 7 of supplementary agreement. The complainants received a letter dated 24.01.2017 from opposite party no.1 wherein opposite party no.1 had stated that it would continue to pay EMIs to opposite party no.2. It is submitted that despite the fact that complainants had already cancelled allotment / booking and had asked for complete refund of the amount paid to them, opposite party no.2 did not make any effort to recover the loan amount from opposite party no.1. From February 2017 to August 2017, opposite party no.1 paid certain amounts to opposite party no.2 in the loan account of the complainants, which was duly accepted by opposite party no.2. The complainants, however, learnt that opposite party no.2 had deducted an amount of Rs.93,526/- from the account of the complainants towards payment of EMI. It was contended by the complainants that the said act on the part of opposite party no.2 is an illegal act. Letter dated 20.09.2017 was again sent to opposite party no.2 apprising them that the liability to pay the EMI now rests upon the opposite party no.1 and that they had to recover the loan amount from opposite party no.1. However, opposite party no.2 made an illegal attempt to deduct an amount of Rs.93,526/- also in the month of October 2017. Subsequent letters to opposite party no.2 were also not heeded by opposite party no.2 and they continued threatening the complainants for recovery of the EMIs. It is submitted that in the month of October vide email dated 30.10.2017, the complainants were forced to agree to pay the EMI charged on the interest component under the threat that on non-payment, they would be treated as defaulters. It is submitted that opposite party no.2 had started threatening recovery of the amount from the complainants when infact they should recover it from opposite party no.1. A legal notice dated 21.11.2017 was sent to the opposite parties. On these contentions, the following prayers are made:

(2.) Claim is contested by both the opposite parties. The execution of Builder Buyer Agreement, supplementary agreement and Tripartite Agreement is not disputed by opposite party no.1. Opposite party no.1 has also not disputed of having received a letter dated 14.12.2016 for cancellation of allotment from the complainants. The opposite party no.1, however, has raised several preliminary objections. It is contended that complainants are not the consumers since they had booked an apartment for earning profit and for investment purposes. They have entered into the agreement as they saw the opportunity to make profit from the provisions incorporated in the supplementary agreement dated 21.02.2015. The fact that they have exercised their right under supplementary agreement shows that complainants were never interested in the possession of the apartment but were interested in the additional profit under supplementary agreement. It is submitted that this fact stands reiterated by several emails and the letters received from the complainants whereby they had requested for refund of amount in terms of the supplementary agreement. Reliance has been placed on the findings in cases Morion Chemicals Ltd. Vs. UCO Bank and Anr. of Punjab and Haryana High Court, PDC Marketing Private Ltd. Vs. Axis Bank Ltd., Ved Kumari and Ashish Kaul V/s Omaxe Buildhome Pvt.Ltd., both passed by National Commission and Birla Technologies Limited V. Neutral Glass and Allied Industries Limited IX (2010) SLT 396 : 1 ( 2011) CPJ 1 (SC) : (2011) 1 SCC 525 of the Hon'ble Supreme Court.

(3.) It is submitted that since this Commission has no power to cross examine the witnesses, the matter cannot be disposed of summarily. It is further submitted that there is no deficiency in service. It is submitted that Builder Buyer Agreement squarely stipulates the liability of the parties in the event of delay in completion of construction and in case of delay, the opposite party is liable to pay delay charges to the complainant @ Rs. 5/- per square feet of super area per month till date of notice of possession as per clause 28 of the said agreement. It is submitted that parties are bound by the terms and conditions of the agreement and reliance has been placed in the matter of Sahara India Vs. C Madhubabu, II ( 2011) CPJ 3 and Sahara India Vs. P. Gajendrachari III ( 2010) CPJ 190 passed by National Commission, Bharati Knitting Co. Vs. DHL Worldwide Courier (1996) 4 SCC 704, Bihar State Electricity Board, Patna and Ors. Vs. Green Rubber Industries and Ors. AIR (1990) SC 699, both passed by the Hon'ble Supreme Court. It is further submitted that opposite party no.1 is registered in Real Estate Developers / Builder under the provisions of RERA, 2016 wherein completion date of the project in question has been registered as 31.12.2018. It is further submitted that Section 79 of the RERA Act, 2016 excludes the jurisdiction of Civil Courts. It is submitted that delay had occurred due to reasons beyond the control of the opposite party no.1 such as stay by NGT, stay against the use of ground water for construction work, strike of building material suppliers and paucity of labour due to demonetization. On these contentions, it is submitted that present complaint is liable to be dismissed.