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Judgment
Subhash Chandra, Member
This complaint has been filed under section 21 (a) (i) of the Consumer Protection Act. 1986. The complainants have alleged that there has been delay by M/s Three C Shelters Pvt. Limited (Opposite Party) in delivering the residential unit booked by them in the project executed by the opposite party, namely ‘Project Greenopolis’, situated in Sector 89, District Gurgaon, Haryana. They have, therefore, claimed refund of the amount deposited along with interest and other compensation from the opposite party.
The facts of the case are that the complainants had booked a residential flat in the above-said project on 06.11.2012 and were allotted apartment no. 201, Second Floor, Tower 7 with super area ad-measuring 1660 sq ft for a total sale consideration of Rs.1,03,16,625/-. An Apartment Buyer’s Agreement was signed by them with the opposite party on 19.06.2013. As per clause 5(1) of this agreement, the opposite party undertook to complete the construction of the apartments within 36 months with a grace period of six months from the date of allotment of the apartment, i.e., 16.11.2012. The complainants had deposited Rs.9,09,339/- at the time of booking of the said apartment and thereafter obtained home loan from the ICICI Bank and deposited various amounts with the opposite party from time to time from their savings and this loan totalling to Rs.95,35,705/- as on 08.03.2016. According to the complainants all the amounts were paid without delay and against receipts.
The complainants have alleged that the Apartment Buyer’s Agreement has imposed several one sided clauses, especially clause 5.5 regarding the amount of compensation for delay which was quite the opposite of interest to be charged on the complainant in case of delay on their part which is against the principles of parity and is therefore, an unfair trade practice on the part of the opposite party.
The complainant submits that they have visited the site and have found that the progress of the work is very slow. They have also seen that the land in question had a large drain (Nallah) and a high tension electricity line passing through the same. This fact had not been disclosed by the opposite party at any point of time while booking the above said apartment.
In view of the inordinate delay in the construction of the apartments of 27 months from the date of expiry of grace period, i.e., 16.05.2016, they are now before this Commission seeking refund of the amount deposited along with the following prayers:
a. Direct the opposite party to pay an amount of Rs.1,67,04,166/- along with pendent lite interest @ 18% per annum till its realisation to the complainants;
b. Direct the opposite party to pay a sum of Rs.20,00,000/- to the complainants towards the mental and financial agony and harassment caused to the complainants by the opposite party;
c. Direct further the opposite party to pay a sum of Rs.5,00,000/- to the complainants towards the cost of litigation; and
d. Any other order (s) as may be deemed fit and appropriate may also kindly be passed.
The opposite party in reply has submitted that Haryana RERA authority is already seized of the matter and delay in the project is on account of certain force majeur conditions and not deliberate. It is submitted by the opposite party that the licence and approval of the building plan and other approvals had been obtained in 2011 and the project was being executed by M/s Orris Infrastructure Private Limited. Environmental clearance was obtained on 04.09.2013 and Consent to Establish on 27.11.2013. It is further submitted that the project has been delayed on account of default in payment bybuyers and demonetization which has affected the cash flow of the opposite party.
According to the opposite party, the completion of the construction is to be calculated from grant of environmental clearance on 04.09.2013 and Consent to Establish dated 27.11.2013 and not as claimed by the complainants. It is also alleged that the complainants have defaulted in making timely payment of the instalments to the opposite party and they are therefore, defaulters who cannot seek remedy for the delay. The opposite party has denied that the fact of a nallah and high tension line on the site was concealed since it is in the public domain. He also submits that an application to cover the nallah has already been made to the appropriate authorities, therefore, the opposite party is not liable for compensation. The opposite party states that delay is not attributable to it and has been due to reasons beyond its control.
Parties led their evidences. We have heard the complainants in person and perused the record carefully.
The admitted facts are that the complainant had booked a residential apartment in the project of the opposite party on 06.11.2021 and was allotted apartment no.201 on the Second Floor, Tower 7 on 16.11.2012. A Builder Buyer Agreement was entered into on 19.06.2013 as per which the date of possession was promised after 36 months ( i.e., 16.11.2015) or after 42 months (with 6 months grace) on 16.05.2016. The complainant applied to the opposite party on 09.08.2018 for refund of the amount of Rs.95,35,705/- paid till 08.03.2016. Thereafter the instant complaint was filed on 13.09.2018. It is not disputed by the opposite party that a sum of Rs.95,35,705/- has been paid by the complainant on various dates against the total sale consideration of Rs.1,03,16,625/-for the said apartment.
The contention of the opposite party is that as per the Builder Buyer Agreement, the commencement period after which the possession will be handed over is from the date of receipt of environment clearance, i.e., 04.09.2013 and not as claimed by the complainant. It is contended that the complainant has defaulted on payments and is therefore, not liable to any relief. As regards delay in the execution of the project, it is submitted that the delay in receiving the statutory clearances and other issues that were not in the control of the opposite party such as demonetisation and restriction on construction have caused the delay for which he cannot be held responsible. As regards the existence of high tension electricity line and Nallah on the site, it is contended by the opposite party that it was already in existence hence, the need for disclosure in the prospectus was not felt necessary. It is also argued by the opposite party that under section 79 and 71 of the Haryana RERA Act, the present complaint is not maintainable before this Commission.
The complainant’s case is that having paid a sum of Rs.95,35,705/- out of the total sale consideration of Rs.1,03,16,625/- i.e., nearly 90% they are entitled to a full refund with interest since the opposite party has not disclosed the existence of high tension wire or Nallah on the project land and has also not completed the project within the time frame as promised. It has also been stated that there has been no default on the part of the complainant in making payment of the instalments that were due for which purpose they had obtained a home loan from ICICI Bank.
On the issue of maintainability of the complaint before this Commission, it has been held by the Hon’ble Supreme Court in Civil Appeal nos.3581-3590 of 2020 – M/s Imperia Structures Ltd., vs Anil Patni and Anr., that ‘insofar as cases where such proceedings under the CP Act are initiated after the provisions of the RERA Act came into force, there is nothing in the RERA Act which bars such initiation. The absence of bar under Section 79 of the initiation of proceedings before a fora which cannot be called a Civil Court and express saving under Section 88 of the RERA Act, make the position quite clear. Further, Section 18 itself specifies that the remedy under said Section is “without prejudice to any other remedy available”. Thus, the parliamentary intent is clear that a choice or discretion is given to the allottee whether he wishes to initiate appropriate proceedings under the CP Act or file an application under the RERA Act’. The Hon’ble Supreme Court has also held in the case of Malay Kumar Ganguli vs Dr Sukumar Mukherjee – (2009) 9 SCC 221 , that “the proceedings before the National Commission are although judicial proceedings, but at the same time it is not a civil court within the meaning of the provisions of the Code of Civil Procedure. It may have all the trappings of the civil court but yet it cannot be called a civil court. (See Bharat Bank Ltd., vs Employees and Nahar Industrial Enterprises Ltd., vs Hong Kong and Shanghai Banking Corpn.,)”. The Hon’ble Supreme Court has also held that “on the strength of the law so declared, Section 79 of the RERA Act does not in any way bar the Commission or Forum under the provisions of CP Act to entertain any complaint. Therefore, the OP’s contention that the complaint is not maintainable in view of Section 79 of the Haryana RERA Act cannot be accepted.
In the case of Pioneer Urban Land & Infrastructure Ltd. V. Govindan Raghavan, II (2019) CPJ 34 (SC), and in Wg. Cdr. Arifur Rahman Khan v DLF Southern Homes Pvt Ltd (Civil Appeal No. 6239 of 2019) the Hon’ble Supreme Court has observed that the flat purchasers cannot be made to wait for inordinate period of time hoping to get possession and that refund of amounts deposited is a valid redressal. In the present case, there is a delay of 77 months counted from 16.11.2011 to 13.09.2018. Even on date there is neither a completion certificate nor occupancy certificate obtained by the opposite party nor is an offer of possession made to the complainant.
In support of its contention that the complainants are not ‘consumers’, the opposite party has not produced any evidence in support of his claim. The onus to prove that they are not ‘consumers’ is squarely upon the Opposite Party. In Rajnish Bhardwaj and Ors vs M/s CHD Developers Ltd., and Ors in CC no. 3775 of 2017, decided on 26.11.2019, this Commission has observed as under:
“13. The first contention of the Learned Counsel for the Opposite Party that the Complainants are not “Consumers” and only “investors” is not supported by any documentary evidence. In a catena of judgments, this Commission has laid down that the onus of proof shifts to the Opposite Party to prove that the Complainant is “investor” and it is observed that the Opposite Party did not discharge their onus of proof regarding this aspect. Hence, we are of the considered view that the Complainants are “Consumers” as defined under Section 2 (1) (d) of the Consumer Protection Act, 1986”.
In view of the foregoing discussion, we order as follows:
i. The opposite party shall refund the entire amount of Rs.95,35,705/- to the Complainant with 9% simple interest from the date of respective deposits till date of payment;
ii. The Opposite Party shall also pay Rs.50,000/- as litigation costs to the complainant;
iii. Payment shall be made within three months of this order. In case of default, the compensation shall be payable with a penal interest of 12% for the period of delay.