Anant Ram & Anr vs Cloud 9 Projects Pvt. Ltd

Subhash Chandra, Presiding Member

This complaint has been filed under section 21 of the Consumer Protection Act, 1986 (in short, the ‘Act’) is filed by the complainants alleging deficiency in service and unfair trade practice on account of deficiency in service and unfair trade practices, seeking possession or in the alternative, refund of the amount deposited along with penal interest and other compensation in respect of the flat booked by them with the opposite party viz., M/s Cloud 9 Projects Pvt. Ltd., in a project promoted and developed by it.

Briefly, the facts of the case are that the complainants had booked a flat in a residential Group Housing project “Lotus Boulevard – Espacia Housing Project” (in short, ‘project’) promoted and developed by the Opposite party located  at Sector 100, Noida, Uttar Pradesh for their residential purpose. The booking was originally in the name of their son (‘Original Allottee’) on 24.12.2009. An offer of allotment letter was issued by the opposite party to the original allottee on 10.03.2010 allotting apartment no. 1402 in Tower 37, admeasuring 237.83 sq ft for a total sale consideration of Rs.93,88,600/-. As per clause 5.1 of the Agreement, possession was promised to be given in 39 months with three months of grace i.e. by 10.06.2013.

Despite the complainants having regularly paid the instalments in time, there was inordinate delay on the part of the opposite party in handing over possession despite several efforts to contact him and the raising of various demands for payments. Dates promising possession was indicated from time to time which were not adhered to by the opposite party. The complainants finally approached this Commission on 11.11.2016 by of this complaint seeking the following relief:

(a) Hold and declare that the opposite party guilty of following unfair trade practices and restrain them from following such activities;

(b) Direct the opposite party to immediately hand over the possession of the apartment worth Rs.93,88,600/- to the complainants on payment of the final instalment amount;

in the alternative

Direct the opposite party to pay the entire amount of Rs.90,68,300/- along with interest to be calculated from the respective date of deposits at the rate of 18% per annum;

(c )   Direct the opposite party to pay interest at the rate of 18% per annum on account of delay, calculated from the due date, i.e., 10.06.2013 on the amount of Rs.90,68,300/- already paid by the complainants, till the time the possession of the apartment is handed over to the complainants;

(d) Direct the opposite party to pay delay charges of approximately Rs.9,66,400/- calculated upto 09.10.2016 in terms of clause 5.5 of the agreement for the delay caused in the completing the construction and handing over the peaceful and vacant possession of the apartment and to pay the delay charges at the rate of Rs.25,600/- per month for further delay post 09.10.2016 upto the actual handing over of the possession of the apartment;

(e )   Direct the opposite party to give possession of the apartment without any enhanced additional charges for the increased area, that were not agreed between the parties and charge only for the agreed upon area of 2560 sq ft; and

(f ) Any other order which this court may deem fit in the interest of justice and equity.

The opposite party contested the complaint by way of reply and evidence by way of affidavit. The opposite party in his reply stated that the complainants were not ‘consumers’ under the purview of section 2(g), that the complaint was without pecuniary jurisdiction, several allottees including complainants  defaulted in making payments and that the delay was largely due to reasons not attributable to the opposite party, in view of (a) shortage of manpower and construction material due to Commonwealth Games, (b) National Green Tribunal’s order dated 11.01.2013 which injuncted builders from extracting ground water for construction purposes resulting in huge shortages in water for construction work, (c) agitation by farmers for nearly three months against land acquisition which impeded construction work. It was contended that the delay was on account of reasons beyond the control of the opposite party and therefore he was not liable for the delay.

It is contended that as per the terms of the Agreement, time was not of the essence and the time frame indicated was merely an indication of the best endeavour of the opposite party to hand over the apartment in question. It was alleged that the complainants had also defaulted in payments and are required to pay delay charges and interest of Rs 12,633/- for this reason. Accordingly it was contended that there had therefore not been any deficiency in service or unfair trade practice which could be penalized under the Act.

Parties led their evidence. Opposite party filed its written reply to the complaint. Complainant also filed his short synopsis along with case laws relied upon. Opposite party was proceeded against ex-parte on 19.04.2022 as he continued to remain unrepresented despite being noticed. We have heard the learned counsel for the complainant and perused the records carefully, including the documents and reply filed by the opposite party.

During final arguments, learned counsel for the complainant submitted on instructions that the complainants had taken possession of the subject apartment in December 2018 and executed the sale deed on the same date even though the opposite party had not provided any occupancy certificate or completion certificate. The full sale consideration of Rs.93,88,600/- had been paid to the opposite party. The complainant submitted that he was limiting his prayer only to the extent of compensation for delay in the handing over of possession of the apartment for the period from the date of the committed date of possession till the date of offer of possession. He relied upon the judgment of the Hon’ble Supreme Court in Pioneer Urban Land and Infrastructure Ltd. Vs Govindan Raghavan in Civil Appeal no. 12238 of 2018 decided on 02.04.2019 (2019) 5 SCC 725 with regard to compensation for the inordinate delay in handing over possession. He also placed reliance on this Commissions orders in Pradeep Narula & Anr. Vs M/s Granite Gate Properties Pvt. Ltd. & Anr in CC No. 315 of 2014 dated 23.08.2016, Pradeep Kumar Vs. Unitech Limited in CC No. 530 of 2017 dated 20.11.2019 and Rishi Kapur Vs. Unitech Ltd in CC No. 3537 of 2017 dated 23.12.2019 wherein either full refund with interest as compensation was ordered or compensation for delayed possession was awarded by way of interest on the principal paid to the opposite party for the period from the promised date of possession till the date the offer of possession was actually made, at varying rates of interest.

The opposite party’s contention that the complainant is not a consumer within the definition of section 2 (i) (d) of the Act needs to be considered in the light of the documentary evidence submitted. It is seen that the opposite party has not submitted any evidence in support of this assertion. In Kavita Ahuja Vs. Shipra Estates I (2016) CPJ 31 it has been categorically laid down by this Commission that the onus of proving that complainants are not consumers lies upon the opposite party which in the instant case it has failed to prove by way of any documentary evidence. This contention is therefore not valid.

A contention of the opposite party is that the complaint has been filed in this Commission when the claim does not qualify on grounds of pecuniary jurisdiction. This issue has been settled in the matter of Ambarish Kumar Shukla and Ors., vs Ferrous Infrastructure Pvt., Ltd. in I (2017) CPJ 1 (NC) wherein it has been held that pecuniary jurisdiction needs to be determined on the basis of the total value of goods and services in addition to the amount of compensation claimed. Therefore this contention cannot be considered.

The contention of the opposite party that the delay is due to reasons that are not attributable to him and are beyond his control such as shortage of manpower and construction material due to Commonwealth Games, orders of the National Green Tribunal dated 11.01.2013 prohibiting builders from utilising ground water for construction and agitation by farmers land acquisition policies which impeded construction work has been considered in several judgements of the Hon’ble Supreme Court and this Commission. In the case of Anil Kumar Jain & Anr. Vs. M/s Nexgen Infracon Private Limited in CC No. 1605 of 2018 dated 23.12.2019 it has been clearly held that these reasons do not qualify as force majeure conditions since there was no specific injunction against the opposite party under any of these reasons and neither has construction work completely stopped. In any case the period of construction and the grace period provided a buffer for such exigencies.

In a catena of judgements, the Hon’ble Supreme Court and this Commission have upheld the right of the consumer to be compensated for inordinate delay in the offer of possession of a residential apartment booked by them due to inordinate delays by builders when the complainants are bonafide consumers who have duly paid the instalments and waited for the promise of allotment to fructify. In the instant case, as possession has already been handed over and taken on the payment of all charges and the sale deed registered, the only issue that survives is the compensation for the delay in the same. Admittedly, the opposite party had indicated a period of 39 months with a 3 month period of grace from the date of the Agreement (09.04.2010), i.e. 10.06.2013. Possession was, however, not offered till 19.12.2018. The intervening period of 5 years and 6 months is not a short period and the complainant is justified in seeking compensation for the same. It has been held by the Hon’ble Supreme Court in Pioneer Urban Land and Infrastructure Ltd. Vs Govindan Raghavan (supra) that when there is an inordinate delay in the handing over of possession, the consumer is entitled to compensation for the delay. The rate of interest sought by the complainant is 18% which in the present prevailing economic conditions, as also held by the Apex Court, is not feasible to be considered.

I therefore find merit in the complaint and allow the same with the following directions:

(i) opposite party shall pay compensation to the complainant for the delay in handing over possession @ 9% on the deposited amount for the period from the promised date of possession (10.06.2013) to the actual date of possession (19.12.2018) as compensation for the delay in offering possession;

(ii) this order shall be complied within three months failing which penal interest of 12% shall be paid.

This order also disposes of Consumer Complaint No. 2058 of 2016 filed by Anant Ram & Anr. against the same respondents in respect of apartment number 1302 in Tower 37 of the same project, “Lotus Boulevard” which has the same factual matrix. The orders in para 12 of CC 2057 of 2016 shall also apply pari passu to this case.

With these directions, the above consumer complaints stand disposed of.