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Judgment
Dr.Inder Jit Singh, Member
The present Consumer Complaint (CC) has been filed by the Complainant against Opposite Parties (OPs) as detailed above, inter alia praying for directions to the OPs to:-
i. refund of the total principal amount of Rs. 1,62,37,098/- along with penal interest of 18 % per annum from the date of the receipt of the payments made to the Opposite Parties;
ii. pay compensation of Rs. 10,00,000/- for mental agony, harassment, discomfort and undue hardships caused;
iii. refund wrongfully charged taxes, which includes but not limited to Service Tax, and other charges along with the interest on that amount at the rate of 18% from the date of receipt of such wrongfully levied charges and taxes;
iv. pay a sum of Rs.1,00,000/- towards litigation costs.
Notice was issued to the OPs. Parties filed Written Statement/Reply, Rejoinder, Evidence by way of an Affidavit and Written Arguments/Synopsis etc. as per details given in the Table at Annexure-A. The details of the flats allotted to the Complainant/other relevant details, based on pleadings of the parties and other records of the case are also given in the Table at Annexure- A.
It is averred/stated in the Complaint that the complainant, by filing an application form on 23.11.2012, booked a unit in the project “Skyon” launched by the OPs at Golf Course Extension Road, Sector 60, Gurgaon, Haryana for a total consideration of Rs.1,69,94,237/-. OPs sent an Allotment Offer Letter on 21.12.2012, whereby complainant was allotted Unit bearing No. SY-A-07-11 at 31st Floor, Tower A, having tentative Super Area of approx. 1374 sq.ft. Buyer’s Agreement was executed between the parties on 01.02.2013. It is submitted that the Agreement contained various one sided and arbitrary clauses but the complainant had no bargaining power to disagree with such arbitrary terms as he had paid an amount of Rs.15,94,000/- as an earnest money towards the total consideration of the unit and on disagreement with any of the terms of the Agreement, the complainant was threatened that the amount already paid would be forfeited and the complainant was compelled to sign and agree with the Agreement. The Building Plan Approval was obtained by the OPs on 27.09.2011. As per Agreement, complainant was to get the delivery of the possession within 42 months from the date of approval of the Building Plans with grace period of six months, i.e. on 27.09.2015. Till the date of filing of the complaint, the OPs failed to deliver the possession.
The OPs-1, 2 & 3 in their written statement/reply stated that: -
i. There is no delay in handing over of possession of the apartment to the complainant. The agreed date of handing over of possession of the apartment to the complainant was 24.09.2017 as per clause 13.3 of the agreement. The complaint was filed on 03.05.2017. The complaint filed is clearly premature and deserves to be dismissed.
ii. The complainant has never raised any objection, whatsoever, in respect of terms and conditions of the Apartment Buyer’s Agreement executed between the parties, ever since booking dated 19.12.2012 and the complaint has been filed for refund of 100% of paid amount without putting the OP on notice or raising any demand to that effect. In the absence of notice to the OP, there is no cause to file the complaint.
iii. The complainant is guilty of suppressing facts of the case and has only disclosed those portions of his conduct which are in his favour. The complainant has concealed the fact that he himself was in grave financial difficulty making it impossible to pay the instalments. The OP had to send reminders to the complainant to make the payment. In his E-mail dated 07.03.2017 discloses that the complainant has admitted that he is no more in a position to pay further and asked for discount. It is because of good gesture on the part of OP that the allotment was not cancelled.
iv. Under the Consumer Protection Act, 1986, there is no jurisdiction conferred to modify/amend/re-write the terms of a bind agreement executed by the parties on their own free will and volition. Therefore, the basis on which relief is claimed is not maintainable under the C.P.Act.
v. The relief of unfair trade practice can be granted, only if the Consumer Forum comes to a conclusion that there has been a misrepresentation in order to promote provision of service. In the present case, the terms of the agreement prescribing the proposed period for handing over possession is absolutely clear and can never be considered a misrepresentation. Further, the said clause is evidently not for promoting the provision of the service. Therefore, there can be no question of any finding of unfair trade practice in the present case.
vi. The allegations in the complainant are of contractual nature and as such only triable in a Civil Court. The issue in the complaint relates to the interpretation and implementation of the terms of the agreement which can only be decided in a Civil Court. The terms of the agreement are binding between the parties. Complaint is also not maintainable in view of arbitration clause in the Agreement.
vii. The Building Plan Approval was obtained by the OPs on 27.09.2011. Approval of firefighting scheme was obtained on 25.09.2013. OC was received on 14.09.2017 and Notice of Possession was offered to the Complainant on 18.09.2017. The complainant filed the complaint on 03.05.2017.
Heard counsels of both sides. Contentions/pleas of the parties, on various issues raised in the Complaint, based on their Complaint/Reply, Rejoinder, Evidence, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.
Complainant argued that as per agreement, committed date of possession was 42 months from the date of approval of building plans, which was obtained on 27.09.2011. With a grace period of six months, committed date comes to 27.09.2015. OP on the other hand argued that 48 months period is to be calculated from date of approval of building plans and on fulfilment of other pre-conditions contained therein. Although the building plan was approved on 27.09.2011, the fire NOC was obtained on 25.09.2013, OC was obtained on 14.09.2017 and possession was offered on 18.09.2017. The committed date according to OP is 48 months from the date of fire NOC i.e. 25.09.2017. Hence, OP contends that there is no delay in offering possession to the complainant. OP further contended that complainant is a chronic defaulter, OP had issued various reminders to the complainant for making payments.
Similar term of the agreement has been considered by Hon’ble Supreme Court in Ireo Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna (2021) 3 SCC 241, in which, it has been held that that Fire NOC is mandatory under Haryana Fire Safety Act, 2009 and also a condition under approved Building Plan, as such, 42 months period has to been counted from the date of issue of Fire NOC. This Commission in CC/1639/2016 Vandana Kapila Vs. M/s. Ireo Private Limited (decided on 21.12.2021), which was in respect of same project “Skyon”, held that 42 months period has to be counted from issuance of Fire NOC. Fire NOC was issued on 25.09.2013 although it was applied on 16.01.2012. The period of 42 months is liable to be counted from 25.09.2013 and due date of possession, including grace period, would be 24.09.2017. In the present case, the opposite party obtained “occupation certificate” on 14.09.2017 and issued notice of possession to the complainant on 18.09.2017. As such there was no delay in offer of possession.
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, we hold that the complainant is obligated to take possession of the unit in question subject to payment of pending dues and observance of other terms and conditions of the agreement. Complainant is not entitled to refund as prayed for. If he still wishes to seek refund, the OP is entitled to make requisite deductions towards earnest money in accordance with terms and conditions of the agreement, subject to a maximum of 10% of Basic Sale Price keeping in view the judgment of this Commission in various cases on the issue of refund after deduction of earnest money, in which it was held that 10% of BSP is reasonable amount to be forfeited as earnest money. On the balance refundable amount, the complainant will be entitled to simple interest @9% p.a. from the date of deposit till the date of refund. Hence, complainant shall communicate to OP in writing, within 30 days of this order, whether he wishes to seek possession or refund. On receipt of such communication, OP shall take appropriate action in accordance with above stated observations. Complaint is disposed off accordingly. Parties to bear their respective costs.
The pending IAs, in the Consumer Complaint, if any, also stand disposed off.
Annexure-A
Details of the Unit and other related details
Sr No
Particulars
1
Project Name/Location etc.
SKYON, Sector 60, Gurgaon
2
Apartment no.
SY-A-07-11
3
Size (Built up/Covered/Super Area)
1374 sq.ft.
4
Date of application
19.12.2012
5
Date of allotment
21.12.2012
6
Date of signing Apartment Buyer’s Agreement (ABA)
01.02.2013
7
Committed date of possession as per Agreement (with Grace six months’ grace period)
(a)24.09.2017-as contended by the OP
(b)27.09.2015-
as contended by the complainant
8
D/o Obtaining OC by the OP
14.09.2017
9
D/o Offering Possession
18.09.2017
10
Total Consideration as per agreement
Rs.1,69,94,237/-
11
Amount Paid
Rs.1,62,37,098/-
12
D/o Filing CC in NCDRC
03.05.2017
13
D/o Issue of Notice to OP(s)
22.05.2017
14
D/o Filing Reply/Written Statement by OPs
17.07.2017
15
D/o filing Rejoinder by the Complainant(s)
06.03.2018
16
D/o Filing Evidence by way of Affidavit by the Complainant(s)
06.03.2018
17
D/o Filing Evidence by way of Affidavit by the OPs
02.04.2018
18
D/o filing Written Synopsis by the Complainant(s)
21.03.2018
19
D/o filing Written Synopsis by the OPs
19.08.2019