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Judgment
Subhash Chandra, Member
This complaint is filed under section 21 read with section 12 (a) of the Consumer Protection Act, 1986 (in short, ‘the Act’) on the grounds of deficiency in service and unfair trade practice with regard to a residential unit booked by the complainant in a project of the opposite party viz., ‘Araya’, Village Ghata, Sector 62, Gurgaon, Haryana.
In brief, the facts of the case are that the complainant had booked a residential unit no. B – 3201, 32nd Floor, Tower B with a super area of 4690 sq ft in the above-mentioned project on 27.08.2012 for a total sale consideration of Rs.5,18,42,781/-. As per an Apartment Buyer’s Agreement (in short ‘ABA’) signed between the parties on 15.01.2013 possession was agreed to be delivered within 39 months from the date of excavation which was 04.06.2012 with an additional grace period of six months, i.e., by 04.03.2016. It is alleged by the complainant that the opposite party has failed to hand over the possession till date, even though it has received Rs.4,83,79,076/- as on 21.11.2015, in various instalments which is more than 90% of the sale consideration as per demands raised by the opposite party. It is alleged that the project is still in-complete and that the opposite party has been guilty of deficiency in service and unfair trade practice in promising the flat and collecting a large sum of money. The complainant is before us with the following prayer:
a. Direct the opposite party for an immediate 100% refund of the total amount of Rs.4,83,79,076/- paid by the complainant along with a penal interest of 18% per annum from the date of receipt of payments made to the opposite party for a unit in the project ‘Araya’ at Village Ghata, Sector 62, Gurgaon, Haryana;
b. Direct the opposite party to pay compensation of Rs.10,00,000/- to the complainant for mental agony, harassment, discomfort and undue hardships caused to the complainant as a result of the above acts and omissions on part of the opposite party;
c. Direct the opposite party to pay a sum of Rs.1,50,000/- to the complainant in the project ‘Araya’ towards litigation costs; and
d. That any other and further relief in favour of the complainant as the Hon’ble Commission may deem fit and proper in the fact and circumstances of the case.
The opposite party has contested the complaint by way of reply and contended that occupation certificate for Tower ‘B’ has been received on 03.04.2019 and an intimation for possession dated 03.04.2019 has been issued to the complainant. It is contended that the opposite party is bound by the terms of the ABA and that this complaint is without jurisdiction. It is also contended that as per Clause 40 force majeure conditions are applicable as delay is on account of dispute of the opposite party with the construction agencies/ contractor apart from the delay in payment by other allottees, shortage of water for construction, lack of infrastructure support from the State Government, shortage of raw-materials, delay in approval of the State Government, local agitations and demonetization of currency in November 2016. It is contended that since the possession has been offered, the complainant is not entitled for refund. It is also submitted that the opposite party has adjusted Rs.13,77,704/- as penalty for the delay in handing over the possession voluntarily.
Complainant has led his evidence. We have heard the learned counsel for the parties and perused the records carefully and given our thoughtful consideration to the arguments.
Learned counsel for the complainant has relied upon this Commission’s orders in CC no. 2505 of 2018 – Saurabh Nagpal vs Pioneer Urban Land and Infrastructure Ltd., dated 15.12.2021 which pertains to the same project of the opposite party as the instant complaint. The complainant in Saurabh Nagpal (supra) had sought refund of the amount deposited with the opposite party on account of inordinate delay in construction and offer of possession. This order relied upon by judgment of the Hon’ble Supreme Court in Pioneer Urban Land and Infrastructure Ltd., vs Govindan Raghavan – II (2019) CPJ 34 (SC) dated 02.04.2019 which held that an ABA framed by the builder which was wholly one-sided is unfair if the other party has no option but to sign on the dotted line. It has also relied upon the judgment of the Hon’ble Supreme Court in Kolkata West International City Pvt. Ltd., vs Devasis Rudra – II (2019) CPJ 29 SC dated 25.03.2021 which held that it would be manifestly unreasonable to construe that a contract between the parties require the buyers to wait indefinitely for possession. It has also relied upon this Commission’s order in Emmar MGF Land and Ors. Vs Amit Puri – II (2015) CPJ 568 (NC) dated 30.03.2015 which held that after the promised date of delivery it was discretion of the complainant whether or not to accept the offer of possession or seek refund with some reasonable compensation.
The opposite party has denied all averments and contended that the claim for refund with compensation needs to be dismissed. The opposite party’s has taken preliminary objection that this Commission lacks jurisdiction in view of the provision for arbitration in the Agreement. However, in this regard, it is relevant to note that this issue has been settled by the Hon’ble Supreme Court in M/s Emaar MGF Land Limited Vs. Aftab Singh I (2019) CPJ 5 (SC) wherein it was held that an arbitration clause in the Agreement does not bar the jurisdiction of the consumer fora to entertain the complaint. Hence, the objection of the opposite party that the clause of arbitration bars this Commission from entertaining the complaint is unsustainable.
The opposite party has also contended that the complainant is not a consumer within the definition of section 2 (i) (d) of the Act. This assertion needs to be considered in the light of the documentary evidence submitted. From the records 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.
As regards the issue of force majeure as the reason for the delay, it is seen that no evidence in support of this assertion has been provided. No evidence has been produced by the opposite party to prove that delay is on account of reasons beyond their control. Reasons such as economic slowdown or restrictions on construction are risks that the opposite party should have factored in as part of the project execution planned by it. This Commission in Ashish Gupta Vs. Unitech Ltd. in CC No. 594 of 2016 dated 28.11.2016 while considering such extraneous events as likely reasons for delay and qualifying as force majeure events has held that:
“As regards the alleged economic slowdown and consequent recession in the real estate market, the same cannot be a valid ground for delaying the possession of the flats to the complainant since some of the buyers made advance payment of almost 95% of the sale consideration whereas the other buyers were to make payment linked with the progress of construction and this is not the case of the opposite party that they had defaulted in performing their contractual obligations as regards the payment of the sale consideration. Therefore, it cannot be said, as far as this project is concerned, that the construction was delayed on account of funds not being available with the opposite party.”
This contention is therefore not valid.
The contention of the opposite party on force majeure grounds of demonetisation and restrictions on account of orders of the NGT also cannot be considered as valid in the present case. There has been no documentary evidence adduced by the opposite party to substantiate its claim for relief on the basis of these reasons. These issues have also been extensively considered in this Commission’s orders in Anil Kumar Jain & Anr. Vs. M/s Nexgen Infracon Private Limited CC No. 1605 of 2018 dated 23.12.2019 wherein it was held that in the absence of any proof to substantiate the claims of demonetisation and NGT adversely causing delay in completion of the project and impacting the date of handing over of flats, such reliance on force majeure conditions was not justifiable. We are, therefore, of the view that the contention of the opposite party is without merit and cannot be sustained.
From the records, it is seen that in the instant case the opposite party while submitting that an offer of possession of the apartment in question has been made has clearly mis-represented the facts. The occupation certificate dated 03.04.2019 which is relied upon by the opposite party (Annexure OP 5) relates to Tower ‘F’ and not Tower ‘B’ of the said project in which the subject flat is located. It is, therefore, clear that there is no occupation certificate or valid offer of possession on date.
In view of the foregoing, the consumer complaint is allowed and the following directions are issued:
(i) the opposite party is directed to refund the entire amount paid by the complainant with interest for the delay as compensation @ 9% simple interest from the respective dates of deposits till realisation within a period of two months from the date of receipt of this order.
(ii) Any delay beyond two months will attract an interest @ 12% per annum for the said period.
(iii) Opposite party shall also pay litigation costs of Rs.50,000/- to the complainant.
This complaint is accordingly disposed off.