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Judgment
Dr.Inder Jit Singh, Member
The present Consumer Complaint (CC) has been filed under Section 21(a)(i) of the Consumer Protection Act,1986( for short ‘the Act’) by the Complainant against Opposite parties (OPs) as detailed above, inter alia praying for:-
i.To direct OPs to jointly and severally refund the principle amount with simple interest @ 18% p.a. from the respective dates of deposit till the date of realization together with compensation of Rs.1,00,000/- and costs Rs.25,000/-.
ii. Any other relief as this commission may deem fit.
Notice was issued to OPs, giving them 45 days’ time to file written statement. Written statement was filed by OPs.
It is averred in the Complaint that: -
i. The OPs are companies incorporated under the provisions of Companies Act, 1956. The OPs act through their common Directors Mr.Arvind Walia and Mr. Sandeep Yadav. The OPs are collectively owners of approx. 60.5112 acres of contagious land, situated in Haryana. OPs entered into a joint development agreement dated 29/11/2011 to jointly develop portion of the project land in to a group housing complex in the name of “Rise”. OP-1 and OP-2 had irrevocably constituted OP-3 as their Power of Attorney holder vide Deed of Power of Attorney dated 09/06/2011 for submitting applications to various authorities in connection with the sanctioning, development, construction and completion of development schedule. OP-1 was empowered by the other OPs to advertise for the project and to receive money from the Allottees/Buyers. The OPs act through common Directors and doing joint venture, thus are liable to be jointly treated as one for the purpose of this complaint.
ii. The complainant booked a residential apartment with the OPs in a project named ‘Rise’ which the OPs were to develop in Sector 37-D of Gurgaon. After allotment of a residential apartment bearing No. C-902 having super area of 1765 sq.ft. to the Complainant the parties executed an Apartment Buyers agreement (ABA) on 31/05/2013, incorporating their respective obligations in respect of the said transaction. As per ABA, the possession was proposed to be handed over to the complainant by September 2015. The grievance of the Complainant is that the possession has not been offered to him by the OPs constituting deficiency of service, unfair trade practices, restrictive trade practices etc. on their part despite he having paid Rs.48,99,026/- out of the agreed sale consideration of Rs. 82,42,680/-
iii. On 25/01/2017, Complainant wrote to OPs detailing her grievances to which OPs did not respond. The OP-1 vide letter dated 12/04/2017 invited the Complainant to make alleged balance payment of Rs.26,73,985/- which included interest charge of Rs.7,23,341/- and further stated that this payment should be made within 15 days to avoid any further charges. This demand of OPs is completely unjustified as they have drastically delayed the construction of the flat and failed to adhere to the schedule.
iv. On 25/10/2018, owing to acts and omissions of OPs, the Complainant sent a legal asking OPs to refund Rs.48,15,945/- towards principle and up to date interest thereon from the date of respective deposits made by the Complainant till actual payment made by the OPs. However OPs never paid anything and never replied to this notice.
v. That OPs have failed to deliver the possession on time and hence the Complainant is eligible for the refund along with reasonable interest on the amount from all the OPs as they are jointly liable towards the Complainant.
vi. The Complainant cited judgement of this Commission, bearing CC No.2524 of 2017, in which it was held that “if seller is charging interest from the buyer@ 18% p.a., we should have no hesitation in awarding the same.
vii. The Complainant filed consumer complaint bearing No.1009 of 2019 before this Commission but the same was withdrawn with liberty to file with amendment in the complaint.
The OP-1 in their written statement/reply stated that:-
i. OP-1 has vehemently objected to the contents and format of the affidavit attached by the Complainant in support of the present complaint as same are false, fictitious, and deceiving which are added in the affidavit with the intention to mislead this commission as the said affidavit has not been duly executed as per the law. It is further submitted that the affidavit filed along with complaint are not authenticated as per the procedure laid down by the Ministry of External Affairs, regarding the document/affidavit executed in Australia. Thus the affidavit cannot be accepted and the complaint being verified on the basis of same has itself become bad in law.
ii. OP has denied the fact of deficiency in providing its services and being involved in unfair trade practices and restrictive trade practices as alleged in the complaint.
iii. The delay in handing over the possession of the Apartment was on account of force majure and unforeseeable circumstances beyond the control of OP, including a ban on use of ground water by Hon’ble High Court of Punjab & Haryana vide its order dated 16.07.2012 directing to use only treated water from available Sewerage Treatment Plants followed by a letter dated 1.9.2012 from Dy. Commissioner, Gurgaon in this regard, heavy shortage of supply of construction material pursuant to orders of Hon’ble Supreme Court in the Case Deepak Kumar etc. Vs. State of Haryana, Demonization announced by Government of India on 08.11.2016, shortage of labour/workforce in the real estate market due to implementation of Government Programmes like NREGA, JNNURM, etc.
iv. The complainant has filed the present complaint with malafide intention to extract huge sums of money from the OP. It is also averred that clause 15(a) of the ABA is subject to Clause 31-Force Majeure, and in certain circumstances the date of possession gets extended automatically. Moreover, as per Clause 17(a) of ABA, in the eventuality of delay in handing over possession beyond the period stipulated in Clause 15(a), the allottee will be compensated with Rs5/- per sq ft per month of super area.
v. Time is not the essence in respect of delivering the possession of the apartment, and the stipulated date of delivery was only tentative and was not a firm date. Hon’ble Supreme Court in para 18 of its judgement in Bangalore Development Authority Vs Syndicate Bank (2007) 6 SCC 711 has held that in a contract involving construction, time is not the essence of the contract unless specified. The complainant herein are bound by the terms of the ABA.
vi. Complainant is not a consumer, this commission lacks pecuniary jurisdiction. Clause 37 of ABA states that the matter be first dealt under arbitration, thus the complaint is not maintainable as it should be referred to arbitration first. Further clause 38 of ABA states that only the courts in Gurgaon, Haryana have the jurisdiction to deal with dispute arising out of the ABA, thus this commission does not have jurisdiction in the present matter.
The OP-3 in their written statement/reply while reiterating the facts of written statement of OP-1 and citing various Judgements of Hon’ble Supreme court stated that:-
i. OP-3 is a financer in the project Rise and in order to secure and recover its funding has executed Joint Development Agreement dated 29/11/2011 with OP-1. OP-3 has become party to the Purchaser’s agreement so that its interest in the said project created by virtue of the said JDA can be released in favour of buyer proportionately.
ii. OP-3 has not accepted any liability of construction and development of the project. Therefore, the Complainant has made payment to the OP-1 only and not to OP-3.
iii. The present complaint has been filed after the enforcement of RERA, 2016 and hence this commission is precluded from dealing with the grievances of the customers in relation to the ongoing real estate registered projects.
Complainant in her rejoinder while reiterating the facts of the complaint and denying the allegations of OPs, cited various judgement of this Commission and Hon’ble Supreme court in support of her contention stated that w.r.t. the objection taken by the OPs regarding attestation of the supporting affidavit of the Complainant, submitted that “ A JUSTICE OF THE PEACE IN AND FOR THE STATE OF NSW, AUSTRALIA, REG. No. 192503” is the duly constituted and valid authority for the attestation of documents/ Affidavits, as per the governing laws of Australia.
Evidence by way of an Affidavit was filed by the Complainant and OPs broadly on the lines of averments made in the complaint/Written statement. This Commission vide order dated 24/12/2019 decided that, since no written version has been filed within statutory period of 45 days by OP-2, nor anyone has appeared on behalf of OP-2, therefore the matter should be proceeded ex-parte against OP-2, also the right to file written version by OP-2 stands closed.
The details of the flats allotted to the Complainant:-
Sl. No
Particulars
1
Apartment no
Unit No.902, floor 9th , Block – C
2
Total Super area
1765 sq.ft.
3
Date of signing agreement
31/05/2013
4
Committed date of possession as per agreement
01/09/2015
5
Grace period for possession as per agreement
120 DAYS
6
Total Consideration
Rs.82,42,680/-
7
Amount paid
Rs.48,99,026/-
8
D/o CC/Do Filing CC in NCDRC
24/06/2019
9
D/o Filing Reply/Written Statement by OP1
23/08/2019
10
D/o Filing Reply/Written Statement by OP2
Not filed
11
D/o Filing Reply/Written Statement by OP3
26/08/2019
12
D/o filing Rejoinder by the Complainant
15/10/2019
13
D/o Filing Evidence by way of Affidavit by the Complainant
12/04/2022
14
D/o filing Affidavit of admission/denial of documents filed by Complainant
Not filed
15
D/o Filing Evidence by way of Affidavit by the OP-1
14/09/2022
16
D/o filing Affidavit of admission/denial of documents filed by OP- 1
29/01/2020
17
D/o Filing Evidence by way of Affidavit by the OP-3
23/09/2022
18
D/o filing Affidavit of admission/denial of documents filed by OP- 3
17/03/2020
19
D/o filing Written Synopsis by the Complainant
26/07/2022
20
D/o filing Written Synopsis by the OP-1
14/09/2022
21
D/o filing Written Synopsis by the OP-2
Not filed
Heard counsels of both sides. The learned counsel for the Complainant while reiterating the contentions of the complaint cited various judgements of this commission and Hon’ble Supreme court in support of his contention stated that the Complainant seeks leave to rely upon the judgement dated 19/03/2021, passed by this commission in the batch of CCs bearing No. 2089,2090,2091,2092 and 2096 of 2016 against the same OPs and related to same project, having similar facts to the present complaint. The learned counsel for OP-1 while reiterating the facts of the written statement cited Hon’ble supreme court judgements to support their contentions.
The contention of OPs that this Commission lacks pecuniary jurisdiction is not valid. Under Section 21 of the Act, Commission has the jurisdiction where value of goods and services and compensation, if any, claimed exceeds Rs one crore. The OPs 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 OPs in this regard. The plea of OPs that delay was due to force majeure circumstances is not valid as even after a gap of more than 6 years from the committed date given in the ABA, possession of flat has not been given. There is no documentary evidence to support the contention of the Opposite Parties that the reasons pleaded by them, can be construed as ‘Force Majeure. The contention of the OP 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.” The plea of OPs that the RERA is the Competent Authority to decide the matter is also not valid. Hon’ble Supreme Court in Imperia Structures Ltd. Vs. Anil Patni & Anr. (2020) 10 SCC 783, decided on 2.11.2020 held that “remedies under the Consumer Protection Act were in addition to the remedies available under special statue”. Hence, this Commission has the jurisdiction to entertain this complaint.
In the instant case, there is an inordinate delay in handing over the possession of flat by the OPs. 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 claim refund alongwith fair delay compensation/interest from the OPs. The plea of OPs for entitlement of compensation to the Complainants in accordance with provisions of the ABA is not valid.
This Commission in various CCs, some of which are listed below, against the same OP, involving similar/identical facts, keeping in view the submissions of counsel of the parties regarding rate of interest, have allowed refund to the concerned complainant along with interest @ 8%. During the argument, the counsel for Complainant in the present cases also relied upon the earlier judgements of this commission. Hence in the present cases also the interest is restricted @ 8%.
i. CC No.1258 of 2019, Manpreet Singh Deol V/s Ramprastha Promoters and Developers Pvt.Ltd. & Anr.
ii. CC No.1298 of 2019, Shri Ritesh Kumar Jalan V/s Ramprastha Promoters and Developers Pvt.Ltd. & Anr.
iii. CC No. 1328 of 2019, Himanshu Vijyavargiya & Anr. V/s Ramprastha Promoters and Developers Pvt.Ltd. & Anr.
iv. CC No. 2328 of 2019 Karun Jain & Anr. V/s Ramprastha Promoters and Developers Pvt.Ltd. & Anr.
v. CC No. 2324 of 2017 Mohit Sharma & Anr. V/s Ramprastha Promoters and Developers Pvt.Ltd. & Anr.
vi. CC No. 310 of 2019 Madan Jeet Singh & Anr. V/s Ramprastha Promoters and Developers Pvt.Ltd. & Anr.
vii. CC No.602 of 2018 Yogesh Kumar Gupta & Anr. V/s Ramprastha Promoters and Developers Pvt.Ltd. & Anr. and connected cases.
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. The OPs shall refund the entire principal amount of Rs. 48,99,026/- (Rupees forty eight lakh ninety nine thousand twenty six only) to the complainant, alongwith compensation in the form of simple interest @ 8% per annum from the date of each payment till the date of refund. The principal amount refundable mentioned in this para is subject to verification of actual amount paid by the complainant based on receipts etc.
ii. The OP shall pay a sum of Rs,25,000/- as cost of litigation to the complainant.
iii. The payment in terms of this order shall be paid within three months from today.
iv. 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, the refund 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 within four weeks from receipt of this order to enable them to issue refund cheques/drafts accordingly.
The pending IA’s, if any, also stand disposed off.