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Classic Homes Apartment Buyers’ Association vs. Buildmore India Ltd & Ors dated 2012-09-13


Classic Homes Apartment Buyers’ Association
(Regd.), N-14/B-1, Dilshad Garden, Delhi
Through its President – Sh. Rakesh Arora
& 88 others                                                                   … Complainants
1. Buildmore India Ltd
Through its Managing Director
B-1A, Ajit Singh House, 12-DDA
Commercial Complex, Yusuf Sari, New Delhi
2. Smt. Manmohan Kaur, W/o S. Manjit Singh
Director, Buildmore India Ltd, 101, Gujranwala Town
Delhi – 9
3.  Sh.Jaswant Singh, S/o S. Diwan Singh
Director, Buildmore India Ltd
8/25, West Patel Nagar, New Delhi
4.  Sh. Navneet Singh, Director
S/o S. Kuldeep Singh, C-2/94-B
Janakpuri, New Delhi – 58
5.  Ms. Roopika Kaur Anand, Subscriber
D/o S. Manjit Singh, 101, Gujranwala Town
Delhi – 9
6.  Ms. Simran Kaur Anand, Subscriber
D/o S. Manjit Singh, 101,Gujranwala Town
Delhi - 9    
7.  Sardar Manjit Singh, Subscriber
S/o S. Mohinder Singh, 101, Gujranwala Town
Delhi – 9
8.  Ms. Raminder Kaur, W/o S. Navtej Singh
B-567, Meera Bagh, New Delhi                                 … Opposite Parties                                                    
For all Complainants        :   Mr. Amar Khera, Advocate
For  OPs 1, 2 & 3             :   Mr. Rajendra Singhvi, Advocate
                                            With Mr. K.K.L. Gautam, Adovcate
Pronounced  on  13TH September, 2012
1.      According to a Chinese proverb, “Go to Law for  a Sheep and  loose your Cow”.  This proverb neatly dovetails with this case.  The complainant,  consisting of  132 applicants,  initially applied for purchase of the flats from the in the year 1997.  More than a decade and-a-half have  elapsed, but 60 applicants are yet to receive the flats.  Whether every delay was so much grist  to builder’s mills?.  Briefly stated, the factual scenario of the case, is as follows.
2.      The complainants, Classic Homes Apartments Buyers’  Association (Regd.), and its 88 Members have filed this complaint against the Builders/Opposite Party, Buildmore India Ltd. And its Directors and Subscribers. The OPs introduced themselves as the Builders and Owners of land situated in Village Sadullahbad, Tehsil District Ghaziabad, U.P.  The OPs  also undertook to build a residential complex on the said land at Loni,  District Ghaziabad, U.P. with the name as Classic Homes Apartment. The OPs  also advertised for the sale of the said flats in the said Complex to the intending buyers.  The Complainants got booked the flats from the OPs   and deposited the entire amount.  As per Clause 8 of the Agreement entered into between the parties, the OPs undertook to handover the possession of the apartments/flats to most  of the intending purchasers, by April, 1999.  The said Agreement also stipulates that if there is any delay due to the reasons within the control of the Builder, the Builder will pay interest at the rate of 15% on the amount deposited by the buyer with the builder, for the delayed period.
3.      It is stated that despite several requests to OPs to give the possession in dispute to the respective complainants, the needful was not done.  Total amount due, paid by the Members of the Complainant Society, is Rs.2,68,80,400/-.  The amount due from the Members of the Society is Rs.3,24,25,000/- minus Rs.2,68,80,400/-, which comes to Rs.53,44,600/-. The construction activities at the site were stopped  w.e.f. 04.06.2000, as OP No.1 filed a Civil Suit at Ghaziabad for injunction against the complainant praying that complainant be restrained from causing hindrance in construction of the project. The complainant made a statement that they had never caused any hindrance nor they would cause any hindrance. 
4.      In the meantime, it transpired that the OPs are neither the legal owners  of  the major portion of the land on which apartments are being constructed,  and the construction is being not done as per the Sanction Plan, and even the time for the Sanction Plan, had expired.  Again, the total land on  which apartments are coming up, is 8500 sq.yds.  The OPs  are the owners in respect of 3400 sq.yds only.  The said area of 3400 sq.yds is not yet demarcated from the total area of 8500 sq.yds. 
5.      It also came to light that the construction of the building is of poor quality.  The OPs  did not have paraphernia  and qualified  Engineers to construct the building.  The OPs  have, on their own accord, stopped the construction as they do not have the right in the subject property.  The complainants  have also lodged FIR against the OPs. The Crime Branch was informed that Sanction Plan was granted in favour of M/s.Choudhary Properties  for construction of  Blocks ‘A’,  ‘B’ and ‘C’, but no Sanction Plan was granted for construction of Block ‘D’.  Validity of Sanction Plan was for  a period w.e.f. 15.11.1994.  The said Sanction  has expired and is no more valid.  All the blocks, i.e., ‘A’, ‘B’, ‘C’ and ‘D’ are  not fully constructed.  Under  the  circumstances,  the instant complaint  was filed with the following prayers:-
“a) handover the possession of the flats in the above said Apartment Complex to the respective complainants duly completed in all respects forthwith or in the alternative to refund the deposit  amount as shown in detail against the name of the each of the complainant in the list attached, together  with interest thereon at the rate of 14% per annum together with the equal amount as damages/appreciation ;
                        b)  Interest on the deposit amount at the rate of 15% per amount  on account of the delay in handing over the physical possession of the flat till the date of the delivery of possession in case the possession is delivered to the complainant forthwith;
                        In the alternative, the complainants be allowed the following claims, together with interest at the rate of 24% p.a. thereon:-
Rs. 1,87,67,843.00
Towards cost of flats paid by the complainants to the respondents
Rs.      1,53,840.00
Towards charges of electricity connections paid by the complainants
Rs.         60,850.00
Towards the registration fee paid by the complainants
Rs.           8,25.00
Towards the security deposit.
Rs. 1,89,89,983.00
          c) Rs.20,000/- towards the compensation to each of the complainant towards mental torture and harassment made to them;  and
                                    d)  Costs of the proceedings throughout”.
6.      OP Nos. 1, 2 & 3  have contested the case. They have enumerated  the following defences in their written statement.       OPs 2 & 3 are the Directors of OP No.1.  Mr. Navneet Singh, OP4 ceased to be its Director in the year 1997.  Ms. Roopika Kaur Anand, OP5, was its Shareholder and hardly held 100 shares and did not have any role to play in this transaction.  Same is the position with the OPs 6 to 8.  Thus the case is bad for joining of unnecessary parties.  Again OPs  have filed false Criminal Case to extort money.
7.      M/s. Choudhary Properties, whom the OPs  call as ‘Promoters’  was  the owner of  a  piece of land along with others to the extent of 8500 sq.yds in Village Sadullahbad in respect of Khasra No. 11/1 and 12/1.  They  had  layout  plan for raising  of  construction of flats in all  196 in number, in Four Blocks.  The above said Promoters applied for grant of Sanction  for raising construction  with the concerned authorities, viz., Ghaziabad Development Area (hereinafter to be referred as GDA)  and  GDA  granted  permission for raising construction by means of permission dated 15.09.1994.  The said Promoters could not  carry  out work  of  construction and intended to sell the project.  The Agreement to Sell was arrived between the Promoters and the OPs on 02.12.1996 by which the Promoters represented  that  they  were  the exclusive owners of the land measuring 8500 sq.yds and they had a Sanction Plan for raising construction as above said,  and transferred their rights on to the OP1.
8.      The OPs  were to raise 196 flats in Four Blocks i.e. 48 Flats in Block ‘A’,  60 Flats in Block ‘B’,  48 Flats in Block ‘C’  and 40 Flats in Block ‘D’.  At the initial stage, OP1 started construction in Blocks ‘A’ & ‘B’.  At that time, no booking of any of the respective Tower was made.  OP1 issued advertisement for Sale of the Flats and that too, at  a very competitive rate. It was specifically mentioned that it is a Chaudhary Project. The buyer was to pay for electric connection, registration charges and other escalation charges, if any.  At the time of filing of Written Statement on 04.07.2001, the work was stated to be in progress.  A sum of Rs.12,00,000/- was to be paid by the OP at the time of  entering into the Agreement. Till the date of filing of the complaint, a sum of Rs.60,00,000/- were paid to the Chaudhary Properties. A sum of Rs.15-20 Lakhs were spent on the procurement of various raw material, equipment, machinery, etc., for starting the construction. To initiate work in the project, more than a sum of Rs.30,00,000/-were put by OP1.The work started  in January, 1997, in Blocks ‘A’ & ‘B’ and after three months’ thereafter, the work also commenced in Blocks ‘C’ and ‘D’.  The work was going on in full swing.  The OP also employed Four Engineers, one Structural Architect, Labour force, etc., and were working in a day, with the strength of 125/150.  Each Block consists of Four Floors.  Since it is a multi-storied building, the foundation work in each such like building starts from footing and putting pillars which are to the depth of 10-12 feet.  It costs huge amount.  In June-July, 1997, the pillar works were completed in Blocks ‘A’ and ‘B’.  There are 12 Flats on the Ground Floor in Block ‘A’  and 15 Flats on the Ground Floor in Block ‘B’.  In Block ‘D’ there are 16 Flats on the Ground Floor, after work of laying foundation  in the manner as above said completed in or about in September, 1997.  Those were ready for placing roof on the Ground Floor.  So far as other Blocks are concerned, foundation work was completed in or about September, 1997. 
9.      At the filing of this written statement,  all the 48 Flats were ready for occupation. Some of the flats are already occupied.  It is alleged that some of the flat owners like complainants who have mischievous mind and instead of making the balance payment and or occupying the flats having thought to cheat OP1 and caused harassment to the Directors.  Then, in Block ‘B’, the work is complete, except the roof is to be laid on the flats at the Third Floor i.e. Top Floor.  Internal work is yet to be completed, in some of the flats.  Even a large number of flats in Blocks ‘C1’  and ’G1’,  pipes  have already been laid down. Same is the position with  the flats in Block ‘D’, where six flats need roofing at the Top Floor as against the three flats in Block ‘B’.  In Block ‘C’,  roofing work is complete.
10.    The complainants are  yet  to pay a sum of Rs.77,21,826.32ps, as well as the interest. As per clause 13 of the Agreement, the complainants had undertaken that in case of default of payment on their side, it is open for the OP builder either to cancel the contract or otherwise agree to accept delayed payment, with interest @ 18% p.a. The fault, if any, lies at the doors of the complainants, who have not paid the amount.  The complainants are working in cahoots with M/s.Chaudhary Properties and, specifically through its Partner Sh. Rajiv Chauhan, and started  creating problems with the construction, which was going on very well.  The complainants and Sh. Chauhan filed a suit before the learned Civil Judge, Ghaziabad and the court granted ad-interim injunction on 03.01.2000,  against the OPs  restraining them from causing any interference in the construction. Sh. Chauhan approached the officials of the GDA and complained that there was unauthorized construction.  According to the OP there is no unauthorized construction  and if small deviations are there, those are compoundable.  The OPs filed a suit before the learned Civil Judge, Ghaziabad, for Permanent Injunction against the GDA praying that they be restrained from demolishing of  any property in which these Four Blocks are being raised on the building measuring 8500 sq.yds of land.  The Civil court ordered that ‘status quo’ be maintained,  on 30.05.2000.  Consequently, the OP1 could not construct  the building.   The request of the OP for re-validation of the  plan had been made  long back,  but it did not receive any answer.  As per the previous Act, if no decision is taken within six months’ and no information is rendered, it deems to have been re-validated  for further period of five years’.  The request for re-validation of the plan was made on 09.05.1998.  It is contended that there is no delay.  The construction  has to be stopped  due to court orders.  All the allegations of the complainants have been denied.
11.    We have heard the learned counsel for the parties.  The learned counsel for the complainants made the following submissions.  The flats were to be handed over to them in April, 1999,  but  till  now,  only 48 flats have been given to the complainants/buyers.  Firstly, there were 132 complainants.  Some of  them have  got  flats and now there are only 96 complainants  in the fray.  It was submitted that 60 flats are yet to be constructed.  The same are in Block ‘B’.  There are some defects in the construction and the complainants are not ready to go into those flats. It was also submitted that, at the first instance, the OPs  had  shown rosy picture about the above said flats.  Subsequently, they are trying to jibe their previous position and the half-constructed flats are being offered to the complainants.  It was  also argued that even the title of the complainants is not clear and that is why no flat is being registered. He contended that in case the flats are not given to the complainants, they should be given the money back, with interest @ 15% p.a.
12.    Learned counsel for the complainants  has also invited our attention to the report of Shridhar K, the Architect, appointed as Local Commissioner, to visit the 60 flats in Block ‘B’, of Classic Homes Apartments as per order dated 17.07.2007.  It was reported that the Builder used to get the Sanction Order from time to time and after the elapse of the period, he used to apply for other Sanctions.  No authentic source of  potable water  was found.  Underground water tank and septic tank were found to be non-functional. The capacity of water tanks were found be insufficient.  Defects were found in electricity connection and it was reported that no permanent electricity meter was found installed since no one was found residing within the complex, internal cabling was found lying loose and undersized.  Sewerage pipes were found non-operational.  The approach from main road is not developed and no external development  has been done in terms of pavings,  besides choked main holes.
13.    While refuting all these arguments, the counsel for OPs vehemently argued that in 7-8  cases, the flats have been registered in favour of the buyers.  He contended that the OPs are title holders of the said flats.  He also submitted that all the flats are ready for occupation  but the complainants are putting off the matter, on one  pretext or the other.  He explained that they are ready to handover the flats to the complainants, or in the alternative, they are also ready to pay back the amount of the complainants, with reasonable interest. He has also invited our attention to the photographs of the flats. 
14.    There is not even a scintilla of doubt in our mind that the possession of  flats was inordinately  delayed  unnecessarily  and without any satisfactory  reasons.  The pendency of Civil case was for short time and that too, at the instance of the OPs.  A period of 13-15 years’  cannot be said to be reasonable, by any stretch of imagination.  The  case of the complainants  is supported by eloquent evidence.  We have perused the agreement entered into between the parties, dated 29.08.1997.  Clause 8 of the Agreement, runs as follows :-
“Barring the usual “force majeure” clause, the builder will hand over the possession of the apartment by April, 1999.   However, if there is any delay due to the reasons within the control of the builder, the builder will pay an interest @ 15% per annum on the  amount deposited by the buyer with the builder, for the delayed period”.
This  is the clinching evidence . It must be borne in mind that everybody is bound by this kind of agreement.  Both the parties have signed it with open eyes evaluating its pros and cons.  Nothing can be added or detracted  from the  terms and conditions of this contract.  This piece of evidence towers above the rest.  Last but not the least, none of the parties have picked up a conflict with this clause.
15.    More than 13 years’  have elapsed and more than half of the total complainants  have not  got  the  possession of the said flats.  OPs  have failed to explain  the delay on their part.  It is true that OPs were involved in the litigation for some time because they did not have the clear title.  The complainants should have been informed about the same.  The Builder should not lead the gullible persons up the garden path.  The Agreement between the parties is crystal clear.  This Commission  cannot do anything from its own accord.  The people spend their hard earned money with the hope that they would get their dream house in time, to live there peacefully.  It is well known that the prices have increased  by  leaps and bounds.  Even if the OPs  are ready to pay back the money, they  will  not  be the losers because the prices of the land and flats are sky-rocketing. 
16.    As argued by both the counsel, we hereby direct that :
a)   the Ops 1, 2 & 3, within 90 days’,  shall complete the flats and handover the same to the complainants, along with the registered  Sale Deeds,
b) in the alternative, if the flats are not ready, or  the same are not  ready,  to the satisfaction  of the complainants, within 90 days’,  they  can refuse to  have the flats and, in that event, the OPs  are directed to pay to each of the remaining flat owners’, the amount they have deposited, along with interest @ 15% p.a. from the dates of deposits, till their realization.  
c)  The case  against OPs 4 to 8, stands dismissed.   
17.    Those who choose to have the flats, will deposit the balance amount, as per the Agreement, with the Registrar of this Commission, within 75 days.   The Registrar,  in turn, would make the payment to the OPs 1, 2 & 3,  after satisfying that the complainants have opted for the said flats.  The Registrar would pay the amount to OPs 1, 2 & 3, after the expiry of 100 days’  from today. 
18.    All the 96 complainants, or at least 60 complainants,  who are actually contesting this case i.e. the Society,  as a whole, will get litigation charges and compensation  for  mental torture and harassment, a sum of Rs. 15,00,000/-, i.e., Rs.1,00,000/- per annum, from the year 1997 onwards. The same will be paid within 90 days’ from today, otherwise, it will carry interest, @ 10% p.a., till its realization.  
    (J.M. MALIK)
                                                        (VINAY KUMAR)

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