Areesh Khan & Anr vs Ramprastha Promoters And Developers

Subhash Chandra, Member

This complaint has been filed under section 21 of the Consumer Protection Act, 1986 (in short, the ‘Act’) alleging deficiency in services and unfair trade practice in respect of the apartment booked by the complainants with the opposite party.

In brief the facts of the case are that the complainants had booked a flat in the project ‘RISE’  Group Housing Complex, village Gadauli Kala, Gurugram, Haryana being developed by the opposite party on 11.08.2012 on the payment of Rs. 17,54,996/-. A three BHK apartment no. 1201 on the 12th floor, Tower/Block D  admeasuring 1825 sq ft was provisionally allotted by the opposite party for a sale consideration of Rs. 84,32,922/-.  A Builder Buyer’s Agreement (in short, BBA) was signed between the parties incorporating a construction linked payment plan and as per clause 15 of the BBA possession was promised to be delivered by September 2015 months, with a grace period of 4 months. A sum of Rs. 66,99,615/- was deposited with the opposite party by the complainants over a period of time. As the opposite party failed to hand over the possession of the flat as promised even after two and a half years, the complainants are before us with the following prayer:

(i) refund the sum of Rs 66,99,615/- along with interest @ 24% per annum till date i.e. (approx. Rs 1,16,144,861/-;

(ii)  compensate the complainants for inconvenience and consequent and mental agony for Rs. 20,00,000/-;

(iii)  to pay the difference in increased market value for similar apartment currently available in market i.e. Rs 25,00,000/-;

(iv) to pay loss of rental value of similar apartment @ Rs. 25,000/- per month amounting to Rs. 6,00,000/-;

(v)  to pay pendente lite interest @ 24% per annum;

(vi) to pay the cost of the litigation;

(vii) initiate and to take appropriate action against the Opposite Parties individually and/or jointly for careless and negligent acts, omissions and commissions on their part; and

(viii)  pass such further and other orders as this Hon’ble Commission may deem fit.

The opposite party has resisted the complaint by way of reply. The averments of the complainant have been denied and it has been contended that as per clauses 15(b) and 31 of the Apartment Buyer’s Agreement (in short, the ‘ABA’) dated 11.08.2012 there were force majeure conditions that allow for the automatic extension of the  date of possession. Accordingly, complainants had agreed to compensation under clause 17 after a further extension of 4 months. It is contended that time was not of the essence in the ABA for delivery except with regard to the allottee’s obligations to pay the sale price and therefore there has been no deficiency in service. In view of the delays in various approvals for the project, shortage of labour due to other government schemes and restraining orders of the High Court for use of only treated sewage water for construction, the opposite party claims that force majeure applies and that it is entitled to relief. It is contended that the appreciation in the price of the flat and the Apex Court’s judgement in Ghaziabad Development Authority Vs Balbir Singh 2004 (5) SCC 65 the claim of interest @24% is exorbitant. He has also relied upon Bharathi Knitting Co Vs DHL Worldwide Express Courier Division of Airfreight Ltd AIR 1996 SC 2508 and Secretary, Bhubaneswar Development Authority Vs Susanta Kumar Mishra V (2009) SLT 242 that the terms of the ABA cannot be altered. It is contended that the complainants are not ‘consumers’ under section 2(i) (d) of the Act and that in view of the provision of arbitration the complaint is liable to be dismissed. It is further contended that the complaint does not lie on grounds of pecuniary jurisdiction.

Parties led their evidences and filed their written statements. We have heard the learned counsels for the parties and perused the records carefully. Admittedly, there has been a delay in the handing over the subject flat beyond the committed date of September 2015 including the permitted grace period although the opposite party claims force majeure relaxation. Opposite party has admitted the receipt of Rs 66,99,615/-  towards the sale consideration. The reasons for the delay in completing the project and obtaining an occupation certificate stated by the opposite party as shortage of labour, building material and water and orders of the NGT do not appear sustainable since it was for it to have planned for such contingencies/shortages and utilised its resources to overcome such constraints, if any, to execute the project timely. The imposition of conditions in the ABA that is a document prepared by the opposite party that are entirely one sided such as time being of essence only for payments by complainants is clearly an unfair trade practice to the disadvantage of the complainants.

The learned counsel for the complainants has placed reliance on Pioneer Urban Land and Infrastructure Vs Govindan Raghavan (2019) 5 SCC 725 that one-sided conditions amount to unfair trade practices and Fortune Infrastructure Vs Trevor D’Lima (2018) 5 SCC 442 that an allottee cannot be made to wait indefinitely for possession of the flat and is entitled to seek refund with compensation. He has also placed reliance on this Commission’s orders in Harish Jain and Anr., vs M/r Ramprastha Promoters and Developers Pvt., Ltd., and Anr., in CC No.2089/2016 dated 19.3.2021 which relates to the same project of the opposite party and is covered by the same facts and reliefs. The opposite party’s contention that there has not been any delay in offering possession is not tenable since the project execution was the opposite party’s commitment for which a time line had been indicated, inclusive of delays. The issue of pecuniary jurisdiction has been settled by this Commission in Ambrish Kumar Shukla and Anr vs Ferrous Infrastructure Limited and Ors., I (2017) CPJ 1 (NC). The onus to prove that complainants are not consumers lies upon the opposite party as per Kavit Ahuja Vs Shipra Estates I (2016) CPJ 31 which they have failed to do. As regards the contention of arbitration raised, the Apex Court has clearly laid down in M/s EMAAR MGF Land Ltd Vs Aftab Singh I (2019) CPJ 5 (SC) that the arbitration clause in the ABA does not bar the jurisdiction of the Consumer fora to entertain the complaint.

We are of the considered view that the present case is squarely covered by judgment of Harish Jain and Anr., (supra). The opposite party is clearly liable for deficiency in service and unfair trade practice. We, therefore, find merit in the complaint and allow the same with the following directions:

(i) Opposite party is directed to refund the entire amount of Rs.66,99,615/- deposited with the opposite party along with 9% simple interest on it from the dates of respective deposits;

(ii)  Opposite party shall also remit Rs 25,000/- as litigation cost;

(iii)  Order be complied within four weeks failing which penal interest of 12% shall be paid on the amount to be paid.

The complaint is accordingly disposed of with these directions.