BEFORE THE HON’BLE DISTRICT CONSUMER DISPUTE

REDRESSAL FORUM AT DISTRICT GHAZIABAD

COMPLAINT No …………OF 2021

IN THE MATTER OF:

MRS. VIDU
RESIDENCE AT H. NO. 1079
GROUND FLOOR,
SECTOR-38, GURUGRAM,
HARYANA-122001 ….COMPLAINANT

VERSUS

CAROL INFRASTRUCTURE
PVT. LTD
REGISTERED OFFICE AT
PARMESH CORPORATE TOWERS,
309, III FLOOR, PLOT NO. 13,
KARKARDOOMA CENTRE,
DELHI-110092 ….OPPOSITE PARTY

INDEX

S.NO. PARTICULARS COURT PAGE NO.

FEES
1. Demand Draft No. dated of

Rs. /- UCO Bank, Supreme Court,

New Delhi

2. List of Dated

3. Memo OF Parties

4. Complaint Under Section 35 of The

Consumer Protection Act, 1986, along
 with Affidavit.
5. Annexure A

A Copy of builder buyer agreement dated

11th March 2017.

6. Annexure B
A copy of A/c statement depicting the
payment to the builder from time to time
7. Annexure C
A copy of letter of possession dated
27.10.2018
8. Annexure D
A copy of recent letter imposing penalty
charges by the opposite party / builder
9. Annexure E
A Copy of the Legal Notice to the builder
/opposite party with postal reciept
9. VAKALATNAMA

COMPLAINAN
T

THROUGH

GHAZIABAD ANUJ SAXENA & ASSOCIATES

DATED: / / Counsel for the Complainant
Ch. No.17,M.C Setalvad Block,
SUPREME COURT OF INDIA
New Delhi-110001
 advonujsaxena@gmail.com
Mob No : 9971546057

LIST OF DATES

11.03.2014 The Complainant and her husband had entered into a

Builder Buyer Agreement with the respondent vide
agreement dated 11.03.2014 in context of unit No. G –
11013, Tower No. 17 Name of Project ‘River Heights’
situated at NH- 58, Village Noor Nagar, Pargana Loni,
Ghaziabad.
2017 Complainant husband initiated contesting divorce
proceedings before the Gurugram Court.
23.10.2018 Letter of possession was issued in context of unit No.
G – 11013, Tower No. 17 Name of Project ‘River
Heights’ situated at NH- 58, Village Noor Nagar,
Pargana Loni, Ghaziabad.
03.12.2018 Full payment as per demand letter was made to the
Builder/opposite party
15.11.2019 Unit No. G – 11013, Tower No. 17 Name of Project
‘River Heights’ situated at NH- 58, Village Noor
Nagar, Pargana Loni, Ghaziabad, was ready for
possession.
05.03.2021 Letter imposing holding charges issued to the
complainant by the builder/opposite party.
03.08.2021 Legal Notice issued to the Builder/Opposite Party.
Hence the present Petition.
 BEFORE THE HON’BLE DISTRICT CONSUMER DISPUTE
REDRESSAL FORUM AT DISTRICT GHAZIABAD

COMPLAINT No …………OF 2021

IN THE MATTER OF:

MRS. VIDU
RESIDENCE AT H. NO. 1079
GROUND FLOOR,
SECTOR-38, GURUGRAM,
HARYANA-122001 …….COMPLAINANT

VERSUS

CAROL INFRASTRUCTURE
PVT. LTD
REGISTERED OFFICE AT
PARMESH CORPORATE TOWERS,
309, III FLOOR, PLOT NO. 13,
KARKARDOOMA CENTRE,
DELHI-110092 …….OPPOSITE
PARTY

COMPLAINT UNDER SECTION 35 OF THE CONSUMER

PROTECTION ACT, 1986 (AS AMENDED UPTO DATE)

MOST RESPECTFULLY SHOWETH:

1. That the Complainant is a law abiding citizen working as a Senior

Manager in Punjab National Bank at Gurugram residing at House No.

1079, Ground Floor, Sector- 38, Gurugram, Haryana-122001 & the

Opposite Party i.e Carol Infrastructure Pvt. Ltd. having its registered

office at Parmesh Corporate towers – 309, III Floor, Plot No. 13,

Karkardooma Community Centre Delhi – 110092.

2. That the Complainant had entered into a Builder Buyer Agreement with

the respondent vide agreement dated 11.03.2014 in context of unit No.

G – 11013, Tower No. 17 Name of Project ‘River Heights’ situated at

NH- 58, Village Noor Nagar, Pargana Loni, Ghaziabad. (hereinafter

referred to as ‘Titled Property’) the Complainant had entered into the

agreement with the Opposite Party with almost no bargaining power.

A Copy of builder buyer agreement dated 11th March 2017 is annexed

herewith and marked as Annexure A.

The Hon’ble Supreme Court, various High Courts as well as the National

Consumer Dispute redressal Commission has categorically established

that the Hon’ble Courts as well as this Hon’ble Commission has the

Jurisdiction to surpass the builder buyer agreement in case there is a

blatant depictions of abuse of dominant position by the builder.

 In this regard reference be made to:

Sheo Prakash Gupta & Anr. Vs. Kanpur Development authority F.A

No. 374/2015, 12th June 2017, NCDRC:

“11. It is common parlance that, in the builder- buyer

agreements the terms are framed as favourable and suitable to

the builders/ service providers.”

One-sided development agreements has been one of the core concern of

home buyers. The terms of the Agreement are non-negotiable and a buyer

even if he does not agree to a term, there is no option of modifying it or

even deliberating it with the Builder. This aspect has often been unfairly

exploited by the Builder, whereby the Buyer imposes unfair and

discriminatory terms and conditions.

3. That initially the Complainant and the Complainant’s husband Mr. Rajit

Tayal both had entered into an agreement with the Opposite Party,

however in the year 2017 the Complainant husband had initiated

contesting Divorce proceedings under section 13 of the Hindu Marriage

Act.

It is pertinent to mention here that almost all the financial transactions

pertaining to the titled property is paid by the complainant in her personal

 capacity and the Complainant husband (Mr. Rajit Tayal) has negligible

contribution for the same.

A copy of A/c statement depicting the payment to the builder from time

to time is annexed herewith and marked as Annexure B.

4. That in view of the builder buyer agreement (Clause 6.1), the Opposite

Party were bound to complete the construction of the titled property,

maximum by September 2017, however the Letter of Possession was

awarded on 23.10.2018 against which full payment (as per the demand

letter) had been made on 03.12.2018, per contra the titled property got

ready for possession on 15.11.2019 i.e. more than 2 years after the

stipulated date.

A copy of letter of possession dated 23.10.2018 is annexed herewith and

marked as Annexure C

5. It is pertinent to mention here that in view of the recent judgement of the

Hon’ble Supreme Court of India, that if the builder fails to provide the

possession in the stipulated time frame, then he is bound to compensate

the buyer with 18% per annum interest on the deposited amount i.e. Rs.

32,17,646/- (Thirty Two Lacs Seventeen Thousand Six Hundred and

Forty Six Rupees Only).

 In this regard, the reference be made to:

Wg. Cdr. Arifur Rehman Khan & Ors Vs. DLF Southern Homes

Pvt. Ltd. Civil Appeal No. 6339 of 2019. Supreme Court.

6. Further the Opposite Party has wrongfully imposed the holding charges

of Rs. 1,56,468/- on the Complainant despite the fact that the present

case of the Complainant falls under the category of Force Majeure.

A copy of recent letter imposing penalty charges by the opposite party /

builder is annexed herewith and marked as Annexure D.

7. It is reiterated that after entering into builder buyer agreement, the

Complainant’s husband had initiated contesting divorce proceedings, and

her husband is reluctant to cooperate in any manner, thus being aggrieved

by the judicial proceedings there is delay in taking possession of the

above unit. The Complainant had requested the Opposite Party to get the

property registered in her name as almost all the payment pertaining to

the titled property is done by the Complainant and the Complainant

husband has no or negligible financial contribution in the same, but the

Opposite Party had denied the request of possession for the reasons best

known to the Opposite Party.

8. That the case of the Complainant falls under the category of Force

Majeure as enumerated under Clause 13.2 of the builder buyer

 agreement. The operative portion of the builder buyer agreement dated

11.03.2014 is reproduced below for ready reference:

‘13.2 ‘Force Majeure’ means any event or combination of

events or circumstances beyond the control of a party which
cannot be prevented, or cause to be prevented, and which
adversely affects and makes it impossible to perform
obligation under this agreement which shall include:

1. Acts of God, i.e. fire, flood, earthquake, natural

disaster or acts of like nature.
2. Air Crashes.
3. War & hostilities of war, riots or civil
commotion of a prolonged nature.
4. Any event or circumstance analogous to the
foregoing: and
5. Any action/ proceeding by the Government/
Statutory Authorities or Judicial Authority.’

9. That the failure of the Complainant in not taking the possession is

attributable to Sub Clause (i) & (v) of Clause 13.2 of the builder buyer

agreement. Divorce proceedings against the Complainant has been

delayed in view of partial working of courts due to novel coronavirus,

thus in view of the force majeure clause.

10.That fair agreement is an essence of healthy builder buyer relationship,

thus the concept of Force Majeure is equally applicable in the

Complainant case.

In this regard, the reference be made to:

 Jitendra Balani vs. Unitech 2016 SCC OnLine NCDRC 779.

11.The Complainant’s Flat is located in Village Noor Nagar, Pargana Loni,

Ghaziabad, which falls under the jurisdiction of P.S.- Loni, and as such

this Hon’ble Consumer Forum has territorial jurisdiction to try and

entertain the present Complaint.

12.The cause of action in the present matter arose for the first time on

27.10.2018. The cause of action further arose on 03.08.2021, when 15

days subsequent to delivery of statutory demand notice expired, and is

still continuing as no payment has yet been received by the Opposite

Party.

A Copy of the Legal Notice to the builder /opposite party with postal

reciept is annexed herewith and marked as Annexure E.

13.That the present Complaint has been filed within a period of limitation.

PRAYER

It is therefore, most respectfully prayed that this Hon’ble Court may be

pleased:-
a) To Register and try the Complaint and initiate proceedings against

the Opposite Party Under Section 35 of the Consumer Protection

Act, 1986;

b) Direct the Respondents to pay a sum of Rs. 20,000/- per month for

the period of September 2017 to November 2019 (i.e. the date of

delivery of possession) in lieu of the Rent paid by the complainants

for their present rented accommodation.

c) Direct the Respondent(s) to Compensate the Complainant for

delayed offer of possession with 18% per annum interest on the

deposited amount i.e. on Rs, 32,17,646/- (Thirty Two lacs

Seventeen Thousand Six Hundred and Forty Six Rupees Only) for

the period of September 2017 to November 2019.

d) Direct the Respondents to pay a sum of Rs. 21,000/-(Twenty one

Thousand Only) towards costs;

e) Direct the Respondents to withdraw the holding charges in view of

Clause 13.2 (Force Majeure) of the Builder buyer agreement dated

11.03.2014 and further allow the Complainant to procure the

possession of the titled property as and when the law commands.

f) Any other further Ordres/Directions which this Hon’ble Court

deems fit in the present circumstances.

COMPLAINANT
 THROUGH

GHAZIABAD ANUJ SAXENA & ASSOCIATES

DATED: / / Counsel for the Complainant
Ch. No.17,M.C Setalvad Block,
SUPREME COURT OF INDIA
New Delhi-110001
advonujsaxena@gmail.com
Mob No : 9971546057
BEFORE THE HON’BLE DISTRICT CONSUMER DISPUTE
REDRESSAL FORUM AT DISTRICT GHAZIABAD

COMPLAINT No …………OF 2021

IN THE MATTER OF:

MRS. VIDU ….COMPLAINANT

VERSUS

CAROL INFRASTRUCTURE
PVT. LTD …….OPPOSITE PARTY

AFFIDAVIT

I, Vidu, residing at House No. 1079, Ground Floor, Sector- 38, Gurugram,
Haryana-122001 & the Opposite Party i.e Carol Infrastructure Pvt. Ltd. having
its registered office at Parmesh Corporate towers – 309, III Floor, Plot No. 13,
Karkardooma Community Centre Delhi – 110092, do hereby solemnly affirm
and declare as under:-
1. That I am the sole complainant in the above cited case and am well

conversant with the facts thereof and as such I am competent to swear

this affidavit.

2. That I have filed an accompanying complaint under section 35 of

Consumer Protection Act 1986 before this Hon'ble Forum. The contents

of the same may kindly be read as part and parcel of this affidavit, same

are not reproduced herein for the sake of brevity.

3. That the contents of the accompanying complaint has been drafted by my

counsel under my instructions and contents thereof have been read over

and explained to me in vernacular, which I admit to be correct.

DEPONENT

VERIFICATION: -

I, the above-named deponent, do hereby verify that the contents of this affidavit

are true and correct to the best of my knowledge and information and that no

part of this Affidavit is false and no material facts have been concealed

therefrom.

Verified at ….. on this ….. day of October 2021.

DEPONENT