VEENA BAJAJ Vs. NEXGEN INFRACON PRIVATE LIMITED

JUDGEMENT

(1.) These consumer complaints have been filed under Sec. 21 (1) (a) of the Consumer Protection Act, 1986 (in short, 'the Act') against the opposite party M/s Nexgen Infracon Pvt. Ltd. alleging deficiency in service and unfair trade practice in respect of the apartment booked by the complainants in a project promoted and executed by the opposite party.

(2.) By this common order, all the above-mentioned complaints are proposed to be disposed since they relate to the same project 'Mahagun Mezzaria' of the same opposite party viz., M/s Nexgen Infracon Pvt. Ltd and involve the same set of facts. For the sake of convenience, the facts are taken from Consumer Complaint No.55 of 2019.

(3.) The facts, in brief in Consumer Complaint No.55 of 2019, are that the complainant had booked a residential flat with the Opposite Party in 'Mahagun Mezzaria' on Plot No.GH-01/A, Sector-78, Noida, U.P. on 30/3/2012 based on wide publicity of its facilities and amenities. A booking amount of Rs.5.00 lakhs was paid to the Opposite Party. Vide allotment letter dtd. 24/5/2012, the complainant was allotted Unit No. 718 on 7th floor in Tower/Block 'Valencia' with approx. super area of 2350 sq.ft. for a total sale consideration of Rs.90,19,626.00 and a 'Flexi Payment Plan' was provided. As per Clause 10.4 of the Allotment Letter, possession of the unit was to be delivered to the Complainant before expiry of 42 months i.e. by 30/6/2016 from the date of completion of raft, or, on or before December, 2012 whichever is earlier, subject to force majeure circumstances. However, if the Opposite Party failed to handover possession even upon expiry of a period of 48 months i.e. by 31/12/2016 from the date of completion of raft or on or before 31/12/2012, whichever is earlier, it undertook pay the allottees a sum of Rs.5.00 per sq.ft/month (Rupees Five only per sq.ft) for the delay attributable to its inability to hand over the said apartment beyond expiry of a period of 48 months i.e. by 31/12/2016 from the date of completion of raft, or, on before 31/12/2012, whichever is earlier. The Opposite Party had paid a penalty of Rs.12,500.00 for delay in possession of the unit to the complainant for the month of January 2017. The complainant submitted that he had made a total payment of Rs.86,01,195.56 by 2/10/2018 by way of instalments. The Opposite Party vide letter dtd. 17/4/2017 informed the complainant that the area of the unit booked by him had been increased from 2350 sq.ft. to 2500 sq.ft. and asked the complainant to accept and acknowledge the same by 25/5/2017. The complainant, through their Allottees' group, vide email dtd. 6/9/2017, sought various clarifications on penalties due to delay in possession, increased in area and copy of approved plan as on date of booking. The Opposite Party, vide email dtd. 9/10/2017, accepted delay and revised the date of completion of project to 30/6/2019. It was stated by the Opposite Party that penalty for delay in handing over the possession would be adjusted at the time of possession formalities. Regarding the increase in area, it was stated that actual saleable area would be decided once the construction was completed. The Home Buyers Association of the project held a meeting with the Opposite Party on 3/11/2017 and discussed the issues of delay in possession, increase in FAR by revising layout plan without consent of the buyers, payment of GST, construction of commercial complex, non-payment of delay compensation etc. On 28/3/2018, the complainant again raised issues such as increase in FAR, saleable area, GST, safety concerns, maintenance charges, etc. Thereafter, at a meeting of the Allottees' group with Opposite Party on 7/6/2018 it was decided that (i) due to the concern of the apartment owners and in the interest of closure of the issue, Opposite Party would charge @50% of the price mentioned in the agreement of that apartment and (ii) flats for which OC has not been applied by 31/12/2018, penalty @ 10/- per sq.ft. would be offered w.e.f. 1/1/2019 or Rs.2.00 crore additional expenditure shall be done by OP on the project. At the time of booking, the complainants were shown Layout Plan as sanctioned vide Letter No. Noida/MVN/III-272/504 dtd. 2/3/2012 in which FAR was 2.75 and total number of dwelling units were shown as 570. The Opposite Party revised Sanctioned Plan vide Letter No. Noida/MVN/III-272/553 dtd. 31/8/2012 in which FAR was increased to 2.89 and total dwelling units were increased to 700. The Opposite Party again revised Sanctioned Plan vide Letter No. Noida/MVN/2016/III-272/888 dtd. 13/4/2016, in which FAR was increased to 3.54 and total dwelling units were increased to 718. According to the complainant, by increasing total number of units from 570 to 718, the Opposite Party had illegally created density upon common amenities and facilities. The grievance of the complainant is that even after payment of 95% of the total consideration and despite the Occupancy Certificate (OC) being received, no offer of possession had been issued to him. The complainant is, therefore, before this Commission with the following prayers:-