SHALINI CHUGH Vs. GARDENIA AIMS DEVELOPERS PRIVATE LIMITED

JUDGEMENT

(1.) Heard Mr. Pardeep Dhingra, Advocate, for the complainants and Mr. Manu Tiwari, Advocate, for the opposite party.

(2.) The complainants have filed the present complaint for directing the opposite party to (i) complete the construction of the project and handover the possession to all the flat buyers within such time as the Hon'ble Commission may deem fit; (i) in the event the OP fails to handover the possession within the stipulated time, refund the monies to the flat buyers who opt for refund alongwith interest @ 24% per annum from the date of payment instalments till the date of payment; (ii) declare that clause 25 of the agreement is an act of restrictive trade practice and OP to pay compensation to the buyers for delay in handing over possession in the form of interest @ 24% p.a. from the date of booking till the date of possession; (iii) declare that the service tax charged by OP on 100% value of the components of total sale consideration as illegal and direct the OP to charge the same on such components of total sale consideration by applying the applicable rule of abatement and refund the excess service charge, if any, collected from the flat buyers; (iv) pay additional compensation of Rs.10.00 lakh per flat buyer for illegally changing the layout of the project by removing the tennis courts in place of shops and removing the opening of aqua canal in place of a new residential tower thereby increasing the overall density of the project; (v) transfer to the flat buyers free from all encumbrances, mortgages, charges or liens on the project land; (vi) restrain the OP from demanding any other charges which are not in accordance with the FAA; (vii) pay compensation of Rs.5.00 lakhs to each flat buyers for mental agony and harassment; and (ix) costs.

(3.) The opposite party launched a group housing project 'Gardenia Aims Glory' situated a plot No.GH-001, Sector-46, Noida. The booking was started in 2009 and it was represented that the project would be completed latest by October, 2012. Being lured by the representation of the opposite party, the complainants booked their respective flats. The project comprised of 20 towers. The flat buyers also signed the respective agreements, clause 25 whereof provided that the possession would be handed over by October, 2012 with a grace period of 3 months but there was a delay of about one year in commencement of construction work. The opposite party offered possession of Towers A1, B1, A2, A3, B2 and B4 in July, 2015 after expiry of 3 years and that too without there being electricity and water connection. The buyers who were allotted the flat in the year 2012 were promised that the possession would be delivered in March, 2014 with a grace period of 3 months. The opposite party kept on revising the date of possession from 2012 to 2014, then 2016 and 2017. Clause 25 of the agreement provided that the opposite party would pay delayed compensation of Rs.5.00 per sq. ft. per month. On the other hand, clause 17 provided that in case of delay in making the payment by the flat buyers, the opposite party would charge 18% interest. The opposite party has illegally charged service tax on full value of the flat including landscaping, power back up, firefighting, electricity charges etc. whereas the service tax was chargeable only on the basic price of the flat. The opposite party started booking of the flats by showing the building plan of 2009. Thereafter, the layout plan was arbitrarily changed without intimation and consent of the complainants. By changing the layout plan, the opposite party removed the tennis court and constructed the shops. In the original layout plan, there was provision of aqua canal but in the revised layout plan the opposite party removed the aqua canal and constructed a new tower in its place. The opposite party has received 95% of the sale consideration from the flat buyers, still they have mortgaged the land and building of the project with a consortium of banks led by Oriental Bank of Commerce and have taken a loan of Rs.150.00 crores, which shows that the opposite party has diverted the funds of the project. The loan is still outstanding and the land as well as the building is still mortgaged with the consortium. Alleging deficiency in service and unfair trade practice on the part of the opposite party, the complainants filed the present complaint under Sec. 12 (1) (c) of the Consumer Protection Act, 1986, on behalf of the allottees of residential flats in the project 'Gardenia Aims Glory', Sector 46, Noida. This Commission, vide order dtd. 30/7/2018, allowed the application under Sec. 12 (1) (c) and issued notice vide publication under Sec. 13 (6) of the Act.