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Judgment
R.K. Agrawal, J., President
The present Consumer Complaints have been filed under Section 21 of the Consumer Protection Act, 1986 (for short "the Act")by Allottees /Complainants against Opposite Parties, M/s. Maruthi Corporation Ltd., having been allotted Units/Villas in the project "Green Fields" proposed to be developed by Opposite Partiesat Chattana Palli Village Shadnagar Mandal, Mahaboobnagar District. Alleging deficiency in service, the Complainants are before this Commission seeking refund of amount paid towards purchase of Units alongwith interest and costs.
Since the facts involved in these Complaints are similar except for minor variations in the Unit numbers and their sale consideration, these Complaints are being disposed off by this common Order. However, for the sake of convenience, facts as enumerated in Consumer Complaint No. 379 of 2013 have been discussed at length herein.
The Complainants are Indian Origin naturalized U.S. citizens and are resident in United States of America. The Complainants allege that Opposite Party No. 2/Managing Director of Opposite Party No. 1 had approached and offered to sell them Villa in project "Green Fields" which was supposed to be a splendid private residence with ultra-modern facilities. Upon believing the Opposite Party and their Representatives, in the year 2005 the Complainants booked two Units/Plots being Plot Nos. 129 and 130 in the project for a total sale consideration of 4,00,00,000/- (Rupees Four Crores Only) via Registered Sale deeds bearing nos. 10938/2007 and 10940/2007 both dated 28.06.2007. It was mutually agreed between the Parties to develop two Villas in the agreed price of 2,00,00,000/- (Rupees Two Crores Only) each in area of 1,000 sq. yards each. As per the Sale deeds, the consideration of the land value is 4,00,000/- (Rupees Four Lacs Only) each. As per clause 12 of the Agreement/Sale Deed, the construction work was supposed to be completed within 48 months from the date of sanction of Villa Plan. The Complainants allege to have paid an amount of 3,33,60,000/- (Rupees Three Crores Thirty Three Lacs and Sixty Thousand Only) towards sale consideration of both the Plots.
The Complainants allege that the Opposite Parties have miserably failed to develop the above mentioned Township, inspite of receiving huge sums from Complainants. Complainants have relied on photographs taken on 13.08.2011 wherein it is illustrated that no development activity has been carried out by the Opposite Parties. In view of the gross deficiency in service as committed by the Opposite Parties, the Complainants, via legal Notice dated 17.08.2013, demanded refund of entire monies paid along with interest @24% p.a. The Opposite Parties vide letter dated 01.10.2013, replied to the said legal Notice, further raising demand of 6,00,10,004/- (Rupees Six Crores Ten Thousand and Four Only) on account of dues and interest.
In view of the gross deficiency in service and unfair trade practices of the Opposite Parties, the Complainants have thus filed the present Consumer Complaint with the following prayer:
"Allow the complaint and direct the opposite parties to pay a sum of 3,33,60,000/- (Rupees Three Crores Thirty Three Lakhs Sixty Thousand Only) along with interest @24% p.a. from the date of first payment from the year 2005 along with damages to the tune of 35 lacs towards mental agony, dereliction of service and damages.
Award cost of the litigation.
Pass any other or further order which this Hon'ble Commission may deem fit and proper in the facts and circumstances of the case."
The Opposite Parties have filed its Written Version and has denied the contents of the Complaint, further stating that the Complainants have only paid a sum of 1,66,31,737/-(Rupees One Crore Sixty Six Lacs Thirty One Thousand Seven Hundred and Thirty Seven Only) with respect to the purchase made towards the two Units/Plots. The Opposite Parties have contended that the Complainants have raised false allegations regarding the breach of Agreement, contrarily, it is the Complainants who, have breached the terms of the Agreement or purchase of Residential Units/Plots.
The Opposite Parties have also objected to the maintainability of the Complaint, since, the said agreement contains an Arbitration clause wherein, in case of any dispute or any differences between the Parties, the matter had to be referred for Arbitration. Therefore in light of complex dispute between the Parties regarding the breach of Contract, the Opposite Parties allege that this Commission has no jurisdiction to entertain the present Consumer Complaint.
The Opposite Parties have further stated that the Complaint is barred by Limitation, since the Complaint was made on 21.01.2011, i.e., after the expiry of period of limitation.
In view of the aforesaid contentions, the Opposite Parties have sought dismissal of the Consumer Complaint.
We have heard the learned Counsel for the Parties and perused the material available on record.
Ms. Vaishnavi, Learned counsel for the Complainants, with respect to maintainability of the Complaints, has argued that in view of the decision rendered by the Hon'ble Supreme Court in M/s Emaar MGF Land Limited vs. Aftab Singh, (2019) CPJ 5 (SC), stating that an Arbitration clause in the Agreement does not bar the jurisdiction of the Consumer Fora to entertain the Complaint, thus this Commission has the jurisdiction to decide the present Complaints. She has further argued that the Opposite Parties, in spite of receiving huge sums as sale considerations, have miserably failed to develop the Township with amenities, as promised. That the photographs, annexed as Annexure C-5 (Colly), illustrate the true picture of the incomplete Project as on 13.11.2010, wherein the Construction Site can been seen as a deteriorated Site and a deserted land with no running Construction activity of any kind. The Complainants allege to have been cheated, fooled and taken for a ride and consequentially, with no other option left, the Complainants are before this Commission praying for refund of the monies paid along with interest and damages.
Contrarily, Mr. B. K. V. Subrahmanyam, learned counsel for the Opposite Parties has argued that Opposite Party No.1 is a Public Limited Company incorporated in 1994, with an aim to Create and Develop Residential Units to cater all segments of people with its areas of interest from Rural Housing to Luxury World Standard Villas. The Opposite Party No.2 has invested in large land banks around Hyderabad City in HMDA Limits. The Opposite Parties have successfully completed several Prestigious Projects in the State of Andhra Pradesh and Telangana. That the Opposite Parties have a very good reputation and a brand value in the business of Property Development and Real Estate in the State of Andhra Pradesh. That the Complainants, after being satisfied with the entire Project and its location & facilities as offered by the Opposite Parties, decided to enter into an Agreement of Construction with the Opposite Parties under the model of Villas namely "Mediterranean & Contemporary style Four bed Room villas". The Complainants have paid a sum of 1,66,31,737/- (Rupees One Crore Sixty Six Lacs Thirty One Thousand Seven Hundred and Thirty Seven only).
Thereafter, there is no sign of payment from the side of the Complainants and there has been complete silence in the Complaint as regards to the non-payment of the outstanding amounts from the year 2011. And therefore, the Complainants, being-defaulters, cannot expect the construction to be completed nor can they expect the Opposite Parties to complete the Villa with all the amenities in the Project. It is further stated that the Complainants have mischievously enclosed the photographs of Plots which do not pertain to the Complainants and thus cannot be relied upon. The learned Counsel has vehemently argued that, delay, if any, is attributable to reasons beyond his control, such as, several violent protests all over the 10 districts, which form part of Telangana region including Hyderabad, coupled with the global recession, which has badly affected the Construction Market in and around Hyderabad, therefore delay caused in the construction of the Project have been unintentional. The learned counsel has thus prayed that, the Complaints, as filed by the Complainants be dismissed in view of the reasons as substantiated above.
Having given our thoughtful consideration to the various pleas raised by the learned Counsel for the Parties, we find that the Construction of the two Villas which were to be constructed by the Opposite Parties on Plot Nos. 129 and 130 have not yet been fully completed.The Complainants have paid a total sum of 3,33,60,000/- (Rupees Three Crores Thirty Three Lakhs Sixty Thousand) as per the statement of Ledger Account filed by the Complainants (Annexure C-3).The fact regarding non-completion of Villa also stand admitted by the Opposite Parties but reasons which have been given for not completing the construction are not satisfactory and cannot be a ground for non-completion of construction for such a long period.
Keeping in view the Judgment passed by this Commission in Emmar MGF Land Ltd. & Ors. vs. Amit Puri [II (2015) CPJ 568 NC], wherein it was laid down that after the promised date of delivery, it is the discretion of the Complainant whether he wants to accept the offer of possession, if any, or seek refund of the amounts paid with reasonable interest, it is held that it is well within the Complainant's right to seek for refund of the principal amount with interest and compensation as construction is still not complete. We are of the view that the Complainant cannot be made to wait indefinitely for the delivery of possession and the act of the Opposite Party in relying on force majure clause while retaining the amounts deposited by the Complainant, is not only an act of deficiency of service but also amounts to unfair trade practice.
We find it a fit case to place reliance on the recent Judgment of the Hon'ble Apex Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, II (2019) CPJ 34 (SC), wherein the Apex Court has observed as follows:
"6.7. A terms of a contract will not be final and binding if it is shown that the flat purchasers had no option but to sign on the dotted line, on a contract framed by the builder. The contractual terms of the Agreement dated 08.05.2012 are ex-facie one sided, unfair and unreasonable. The incorporation of such one-sided clauses in an agreement constitutes 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 the flats by the Builder.
In view of the above discussion, we have no hesitation in holding that the terms of the Apartment Buyer's Agreement dated 08.05.2012 were wholly one-sided and unfair to the Respondent-Flat Purchaser. The Appellant-Builder cannot seek to bind the Respondent with such one-sided contractual terms. "
We also find it a fit case to place reliance on the judgment of the Hon'ble Supreme Court in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, II (2019) CPJ 29 SC, in which the Hon'ble Apex Court has observed as hereunder :
".....It would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession. By 2016, nearly seven years had elapsed from the date of the agreement. Even according to the developer, the completion certificate was received on 29 March 2016. This was nearly seven years after the extended date for the handing over of possession prescribed by the agreement. A buyer can be expected to wait for possession for a reasonable period. A period of seven years in beyond what is reasonable. Hence, it would have been manifestly unfair to non-suit the buyer merely on the basis of the first prayer in the reliefs sought before the SCDRC. There was in any event a prayer for refund.
In the circumstances, we are of the view that the orders passed by the SCDRC and by the NCDRC for refund of moneys were justified. "
In the instant cases also the Complainants cannot be made to wait indefinitely for possession of the Villa, as the construction is yet to be completed. Therefore, we are of the considered view that the Complainants are entitled for refund of the principal amount with reasonable interest, which we quantify @9% p.a. from the date of respective date of deposit till the date of actual refund.
Consumer Complaint No. 379 of 2013
The Opposite Parties are directed to refund 3,33,60,000/- (Rupees Three Crore Thirty Three Lakhs and Sixty Thousand) to the Complainants alongwith interest @9% p.a. from the date of respective date of deposit till the date of actual refund.
Consumer Complaint No. 411 of 2019
The Opposite Parties are directed to refund 1,82,10,457/- (Rupees One Crore Eighty Two Lakhs Ten Thousand and Four Hundred Fifty Seven) to the Complainants alongwith interest @9% p.a. from the date of respective date of deposit till the date of actual refund.
Consumer Complaint No. 791 of 2019
The Opposite Parties are directed to refund 1,26,31,357/- (Rupees One Crore Twenty Six Lakhs Thirty One Thousand Three Hundred Fifty Seven) to the Complainants alongwith interest @9% p.a. from the date of respective date of deposit till the date of actual refund.
The Opposite Parties shall pay the aforesaid awarded amount within 6 weeks from the date of passing of this Order failing which the rate of interest will increase from 9% to 12% p.a.
All the Consumer Complaints are allowed in above terms.