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Judgment
Dr.Inder Jit Singh, Member
The present Consumer Complaint (CC) has been filed under Section 21(a)(i) r/w Section 12(1)(a) of the Consumer Protection Act,1986( for short ‘the Act’) by the Complainant against Opposite party (OP) as detailed above, inter alia praying for:-
i. To direct OP to complete the works of development and handover the possession of the Apartment A-2301, measuring 4279 sq.ft. in project “ARAYA” at Sec-62 Gurgaon, to Complainant without any further delay after securing Occupancy and Completion Certificate from Competent Authority.
ii. To direct OP to pay 18% interest per annum for delayed possession beyond stipulated date i.e. for the period from 04/09/2015 till actual possession is handed over.
iii. To set aside any illegal demand of money towards EDC/IDC and VAT made by OP beyond statutory requirements and direct OP to refund these amounts to the Complainants.
iv. To direct that all increase in Taxes post 04/09/2015 shall be borne by the OP.
v. To direct OP not to charge from Complainant any increase in Super-area which is not proportionate to increase in Carpet Area.
vi. To direct OP to provide independent club house to project “Araya” or else not to charge for the Club House.
vii. To direct OP to refund/adjust the unjustified amounts charged from the Complainant towards car parking.
viii. To direct OP to pay Rs.10 lakhs towards compensation for mental agony, heart burning, deprivation of their property and emotional trauma.
ix. To direct OP to pay Rs. 2 lakhs towards litigation cost.
Notice was issued to OP on 11.07.2018, giving them 30 days time to file written statement. Written statement was filed by OP on 20.08.2018.
It is averred in the Complaint that: -
i. The complainant booked a residential apartment with the OP in a project namely ‘Araya’ which the OP was to develop in Sector 62 of Gurgaon. The booking was made on 02/12/2011 paying a booking amount of Rs.40,00,000/-. After allotment of a residential apartment bearing No. A-2301 to the Complainant the parties executed an Apartment Buyers agreement (ABA) on 06.03.2012, incorporating their respective obligations in respect of the said transaction. As per ABA, the possession was proposed to be handed over to the complainant within 39 months with 6 months grace period from date of excavation (04/06/2012).The grievance of the complainant is that the possession has not been offered to him by the OP constituting deficiency of service, unfair trade practices, restrictive trade practices etc on their part despite he having paid Rs. 3,92,16,172/- out of the agreed sale consideration of Rs. 4,20,29,743/-
ii. The ABA was a fixed set of papers, which was asked to be signed by the buyers/allottees including the present Complainant and no modifications was entertained by the OP. On request to change the one sided clauses, it was told that the ABA has to be signed as it is and in case it is not acceptable than the allotment will stand cancelled and earnest money will be forfeited, seeing no option the buyers has to sign the ABA containing the one sided clauses favouring the OP.
iii. It is further averred that despite a delay of almost 3 years, the construction of the apartment has not been completed. It can hence be seen that the OP is deficient in rendering services and after extracting most of the money from the innocent buyers, have deliberately stopped the construction of houses. Due to above mentioned acts and omissions of OP, Complainant is suffering from disruption to their living arrangements, mental torture, agony, and also continue to incur financial losses.
iv. As per clause 11.5 of ABA, OP is charging exorbitant rate @18% for delay in payments by the Complainant, on the other hand OP is paying compensation @ Rs.10 per sq.ft. for delay in delivery of possession, which makes it clear on part of OP for collecting amount from innocent buyers and using that amount for their commercial purpose. The above clause is unjustified and inequitable as they are against the rights of the Complainant and he should also get the same interest which the OP is charging for delayed possession.
v. OP has used his dominant position and charged an excessive and unjustified amount towards EDC/IDC, VAT, car parking etc. OP has also used his position to gain financial advantage by merging club houses of two projects i.e. “Araya” and “Presidia” thereby usurping huge sum of money from the Complainant.
vi. OP also arbitrarily demanded 20-30 lakhs for increase in super area from the Complainant. This act of OP is unfair as there is no increase in carpet area with the increase of super area, Complainant further reiterates that the super area should be reasonably proportionate to the covered area and should not exceed 122% vis a vis covered area as projected to the Complainant at the threshold.
vii. Due to delay in delivering possession, the service tax increased as the Complainant would have to pay tax at a pre revised rate, had the possession been delivered to him on time. Hence OP is liable to refund the said amount.
The OP in their written statement/reply stated that:-
i. OP is a well known company dealing in real estate and has successfully delivered a residential project for its customers from time being. OP has obtained Occupation certificate on 23/07/2018 and the construction will be completed soon, although the delay has happened in delivering possession of the said unit but that happened due to reasons mentioned below and OP is not liable for the delay.
ii. The delay in delivering possession was purely beyond the control of OP, the reasons for such delay are cited below (a) The commonwealth games were organized in Delhi, due to this mega event construction of several big projects led to extreme shortage of labourers and hence the construction of building could not be completed on time (b) Active implementation of schemes such as NREGA and JNNURM further created shortage of labourers (c)Dispute between contractor led to huge financial losses to the OP (d) Along with labour shortage, water shortage also occurred and it was totally unforeseeable which further led to delay (e) As per guidelines of NGT construction work stopped from 15 November 2016, which further led to delay.
iii. Clause 5 r/w Clauses 6 and 23 of the ABA empowers OP to forfeit the earnest money if the Complainant defaults on payments. Clause 40 of ABA clearly states that if delay happens due to reasons beyond the control of OP, OP is not liable for such delay and company shall not perform any of its obligations during subsistence of the Force Majuere conditions.
iv. The Complainant has bought the flat for investment purpose and cannot be termed as Consumer under the said Act.
v. The parties are bound by the provisions of ABA and the OP has not done any unfair act.
Vi. It is averred that this Commission cannot amend or modify the terms of the ABA.
vii. OP has denied allegations of unfair trade practices, deficiency of services etc, stating that the Complainant signed the agreement with his full consent.
Complainant in his rejoinder while denying the allegations of OP, citing various Hon’ble Supreme court judgements stated that:-
i. OP served a fresh demand notice for Rs 23,12,192/- towards installments and penal interest on 07/08/2018 with threat of penal liability if not paid on time, owing to bonafide belief that the project is ready and Complainant would be able to take the possession with permission of this commission, Complainant paid the entire amount but unfortunately the project is still incomplete.
ii. The Law commission in its 199th report addressed the issue of ‘Unfair(Procedural & Substantive) terms in Contract’ and stated that” A contract or a term thereof is substantively unfair if such contract or the term thereof is in itself harsh, oppressive or unconscionable to one of the parties”.
Evidence by way of an Affidavit was filed by the complainant on 21/06/2019 broadly on the lines of averments made in the complaint dated 20/06/2018. Written Synopsis was filed by the Complainant. This Commission vide order dated 25.11.2019, I.A no.18079/2019 directed Complainant to file an affidavit disclosing therein the residential properties , if any, owned/booked by him or allotted to him on or after the date on which the property in question was booked by him and took additional documents on record subject to OP proving the same in accordance with law and with liberty to the Complainant so file additional document in rebuttal via IA No. 18080/2019.
The details of the flats allotted to the Complainant:-
Sl.No.
Particulars
1
Apartment no
A-2301, 23rd floor
2
Super Area
4279 sq.ft.
3
Date of excavation
04/06/2012
4
Date of Occupation Certificate
23/07/2018
5
Date of signing ABA
06/03/2012
6
Committed date of possession as per
agreement including grace period
04/03/2016(39 months from
date of excavation)
7
Grace period for possession as per ABA
6 Months
8
Total Consideration
Rs. 4,20,29,743/-
9
Amount paid
Rs. 3,92,16,172/-
10
Date of receipt of occupation certificate
23/07/2018
11
Date of offer of possession
28/08/2018
12
D/o Filing CC in NCDRC
20/06/2018
13
D/o Filing Reply/Written Statement by OP
20/08/2018
14
D/o Filing rejoinder by the Complainant
21/06/2019
15
D/o Filing Evidence by way of
Affidavit by the Complainant
21/06/2019
16
D/o Filing denial by way of Affidavit
by the Complainant
21/06/2019
17
D/o Filing Evidence by way of
Affidavit by the OP
14/08/2019
18
D/o filing Written Synopsis by the
Complainant
30/09/2022
19
D/o filing Written Synopsis by the OP
Not filed
Heard counsels of both sides. The learned counsel for the Complainant while reiterating the facts of the complaint and denying all allegations of OP stated by them in their written statement, cited various Hon’ble Supreme court judgements to support their contentions.
The OP have failed to deliver the possession of the unit to the complainant till date and therefore, the cause of action is continuing. The contention that complainant is not a consumer as he has purchased the unit for commercial purpose is also rejected as no such evidence has been adduced by the OP in this regard. The plea of OP that delay was due to force majeure circumstances is not valid as even after a gap of more than 2 years from the committed date given in the agreement, possession of flat has not been given. There is no documentary evidence to support the contention of the OP that the reasons pleaded by them, can be construed as ‘Force Majeure. Various reasons cited by the OP leading to delay in the completion of the project are not valid. The contention of the OPs that the parties are bound by the agreement is also not acceptable. Hon’ble Supreme Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raglivan II (2019) CPJ 34 (SC) decided on 02.04.2019 held that “a term of a contract will not be final and binding if it is shown that the flat purchasers had no option to sign on the dotted line, on a contract framed by the builder ......... the incorporation of one sided clause in an agreement constitute an unfair trade practice as per Section 2 (r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling flats by the builder ........., the appellant-builder cannot seek to bind the respondent with such one sided contractual terms.”
There is an inordinate delay in handing over the possession of flat by the OP. The complainant cannot be made to wait for an indefinite time and suffer financially. Hence, the complainant in the present circumstances have a legitimate right to seek timely possession of the apartment, complete in all respect, with amenities and facilities promised along with delay compensation. In the written arguments, Complainant has stated that it was only subsequent to filing of written statement that the OP offered the possession and this offer of possession was not meaningful as at the relevant time huge construction works were going on inside the project rendering the same as uninhabitable. The requisite amenities were also not in place. It is incumbent upon the builder to produce not only the occupation certificate but also the completion certificate.
For the reasons stated hereinabove, and after giving a thoughtful consideration to the entire facts and circumstances of the case, various pleas raised by the learned Counsel for the Parties, the Consumer Complaint is allowed/disposed off with the following directions/reliefs: -
i. OP shall deliver the actual physical possession of the unit in question, complete in all respects, as per specifications and with amenities and facilities , including the club house etc as promised in the brochure and/or ABA within 3 months of date of this order.
ii. OP shall arrange a joint inspection of the unit in question with Complainant/his representative and OP’s representative within 15 days of date of this order. If as a result of this inspection, any deficiencies are noticed, the same shall be rectified by the OP within 30 days from the date of joint inspection. Immediately on rectification of all the defects, OP shall intimate, in writing, to the Complainant about the readiness of the unit in all respects for actual physical possession, giving him 15 days time from the date of such communication to complete various formalities with respect to taking possession and remitting balance dues, if any, as per the payment plan/ terms and conditions of the ABA. OP shall charge EDC/IDC, and other charges like car parking, IBMS, club membership etc strictly as per ABA dated 06/03/2012. No maintainance and/or holding charges shall be payable by Complainant till the date of actual physical possession after issuance of communication about readiness of the unit for physical possession. Complainant shall be liable to pay service tax/ other applicable taxes etc payable to government agencies as per prevailing rates notified by the government and OP shall be bound to duly deposit such amounts to concerned government authorities within 45 days of receipt of such amounts under intimation to the Complainant. However, if government authorities have not raised any demand with respect to VAT etc and OP considers that it is likely to be raised in future and create a liability which has to be borne by the Complainant, OP may take an indemnity bond from the Complainant in this regard to pay such amount in future, as and when demanded by the Government Authorities.
iii. OP shall be entitled to charge additional amounts for any increase in super area at the same rates as contained in ABA, provided there is actual increase in the super area, subject to the condition that proportions of the covered area to super area should be maintained in the ratio stated in Application form/Allottment letter/Agreement dated 06/03/2012 or in any other communications between the parties, if any. Further the increase in super area should be within the limits prescribed in the ABA dated 06/03/2012, if any. This is further subject to full disclosure in writing in the form of detailed statement of actual covered area of the unit, super area under common areas/ facilities in the same tower as well as in the entire project area which are includable in the definition of super area as per ABA, within 15 days of this order and permitting measurement by the Complainant of such covered/ other common areas as part of the joint inspection in the presence of OP’s representative.
iv. In case any excess payments have been made by the Complainant keeping in view the above stated reliefs, the same shall be refundable along with delay compensation as stated in following para.
v. OP shall pay delay compensation in the form of simple interest @ 6% p.a. on the total amount paid from the committed date of possession as per ABA (04/03/2016) till the date of offer of possession (28/08/2018). Delay compensation/ penalty already paid by the OP as per ABA, if any shall not be recovered or adjusted in the delay compensation payable as per this para.
vi. In case OP fails to deliver the actual physical possession within the time frame as per this order, on the expiry of such time limit, Complainant, if he so desires, shall be entitled to seek refund of the entire amount paid along with simple interest @ 9% p.a. from the date of each payment till the date of refund and the same shall be payable by OP within one month from the date of demand in writing.
vii. The OP shall pay a sum of Rs.50,000/- as cost of litigation to the complainant.
viii. In case the complainant has taken loan from Bank(s)/other financial institution(s) and the same/any portion of the same is still outstanding, in case of refund under para (iv & v) above, the amount will be first utilized for repaying the outstanding amount of such loans and balance will be retained by the complainant. The complainant would submit the requisite documents from the concerned bank(s)/financial institution(s) to the OP to enable them to issue refund cheques/drafts accordingly.
The pending IAs, if any, also stand disposed off.