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Judgment
According to the Complainants on 19.09.2012, they applied for allotment of a residential unit in the project “Sovereign Floors”, Esencia, Sector-67, Gurgaon Haryana developed by the Opposite Party. The unit was booked for residential purpose of the Complainants. The Opposite Party allotted residential unit No.D-1567-SF, 2nd Floor, vide allotment letter dated 26.09.2012. Consideration payable was Rs.1,60,00,000/- for the 2198 sq. ft. unit. Pursuant to the allotment letter, the Complainants and Opposite Party signed Floor Buyer Agreement dated 05.10.2012. According to the Agreement, in case of delay in payment, the Complainants were required to pay interest @ 18% p.a. for three months and 21% p.a. beyond the delay of three months. Possession of the unit was to be handed over within 36 months from the date of the agreement with an extension of 6 months, subject to receipt of requisite building plans, approvals, permissions and force majeure etc. In case of failure to deliver possession within 36 months, the Opposite Party was required to pay delay compensation @ Rs.10/- per sq. ft. per month of the total super area of the unit. The Complainants, vide letter dated 08.10.2012 requested the Opposite Party to covert the plan to subvention payment scheme. As per subvention payment scheme, the Complainants were to pay 20% of the sale consideration and rest of the amount during 24 months from the loan. The Opposite Party raised demand of Rs.38,17,585/- out of which the Complainants paid Rs.1,31,835 on 13.12.2012 and Rs.8 lakhs on 19.01.2013 from their own resources and Rs.28,85,750/- on 28.02.2013 by way of home loan. The Opposite Party, however, demanded delayed payment interest from 26.12.2012 to 28.02.2013. The Opposite Party also changed the payment plan from subvention to construction linked plan and denied the Complainants of the benefit of the subvention scheme, due to which the Complainants had to bear high rate of interest burden. The Complainants also suffered loss of Rs.3,34,318/- due to interest. The Opposite Party, vide letter dated 25.10.2012, demanded Rs.6.40 lakhs as PLC charges. The Complainants requested the Opposite Party to withdraw PLC charges but the Opposite Party insisted on payment of PLC charges. On 01.12.2012, the Opposite Party issued third demand for Rs.19,74,710/- and fourth demand for Rs.18,72,765/- on 26.12.2012. Thereafter, on 30.01.2013, the Opposite Party issued pre-cancellation notice to the Complainant.
The Complainants filed a Complaint under Section 22-C of Legal Services Authorities Act, 1987 before the Lok Adalat, Gurgaon. The same was dismissed with liberty to the Complainants to approach appropriate Forum.
Regarding their grievance relating to PLC charges, the Complainants also filed another Consumer Complaint before the District Forum, Gurgaon in January, 2016. Regarding the grievance relating to subvention scheme, the Complainants filed Consumer Complaint before the District Forum, Gurgaon in November, 2016. Thereafter, the Complainants withdrew the said Consumer Complaints. The District Forum, therefore, vide order dated 16.03.2017, dismissed the Complaints as withdrawn with liberty to the Complainants to approach the competent Forum having jurisdiction.
The Complainants paid Rs.1,42,97,983/- as on 22.11.2014. The Opposite Party, however, had not offered possession of the unit even after expiry of 42 months. On 23.12.2016, the Complainants gave notice to the Opposite Party seeking refund of the deposited amount with interest @ 21% per annum.
Alleging deficiency in service on the part of the Opposite Party, the Complainants filed the instant Consumer Complaint with following prayer: -
“a. Direct the Opposite Party to refund the amount of Rs.1,42,96,983/- paid by the Complainants with appropriate interest as may be granted by this Hon’ble Commission as per law, from respective dates of payment till date of payment as depicted in the chart prepared by the Complainants;
IN THE ALTERNATIVE:
b. In case the Opposite Party completes construction of the floor in question and is willing to offer possession of the same during pendency of this complaint instead of refunding the amounts as claimed in sub para (a) above, direct the Opposite Party to offer and deliver possession of the Unit in question complete in all respects further directing the Opposite Party to pay to the complainants compensation by way of interest w.e.f. 05.04.2016 till the date of handing over of possession of the Unit in question by the Opposite Party, on the amount of Rs.1,42,97,983/- paid by the complainants to the Opposite Party, at a rate as this Hon’ble Commission may think fit in the facts of this case as per law.
c. In case of prayer (b) being granted, direct the Opposite Party to refund/adjust the interest being amount of Rs.9,65,827/- paid by the Complainants to the HDFC Ltd/State Bank of India with respect to the home loan along with interest due to blockage of funds on account of payment of pre-EMI and interest on payment over and above home loan amount made to the opposite party by the complainants from own resources due to illegal and unfair denial of subvention scheme;
d. In case prayer (b) being granted, direct the Opposite Party to refund/adjust the PLC charges illegally and unfairly collected from the complainants by the Opposite Party with interest thereon;
e. Direct the Opposite Party to pay damages to complainants to the extent of Rs.5 Lac or any other amount as this Hon’ble Commission may think fit and appropriate in the facts of this case, towards mental agony, loss of status, loss of opportunity to reside in a pollution free area with resultant health effects, inconvenience and cost of litigation;
f. Direct the Opposite Party to bear increase in Service Tax, if any, after 05.04.2016;
g. pass any such other/further order/orders which this Hon’ble Commission shall deem fit and proper in the interest of justice, in favour of the complainants and against the Opposite Party.”
The Complaint was contested by the Opposite Party by filing written statement on the ground that the Complainants were not “Consumers” as they were in the business of purchasing multiple units in various projects and selling them on huge profit. The Complainants supressed the material fact that they purchased two units in the project of the Opposite Party. Unit No.D1567-SF was purchased in the joint names of the Complainants and unit No.C1160-FF in the name of Complainant No.1.
On merits, it was stated that initially the Opposite Party considered the request of the Complainants to avail benefits of the loan through subvention scheme. After evaluation and confirmation with the financial institutions regarding interest rates, the Opposite Party duly declined their request and advised them to take loan on construction linked plan. Regarding PLC charges it was stated that initially PLC were not applicable but with the change in the layout plan and earmarking of the plot of the Complainants, the plot acquired PLC of 4% on account of three side corner and east facing. The Opposite Party, vide letter dated 25.10.2012, duly intimated the Complainants about change in the layout plan. PLC was as per the terms and conditions of the provisional allotment letter as well as the Floor Buyer Agreement. Further, in the allotment letter dated 26.09.2012, it was clearly mentioned that the Complainants would be required to pay External Development Charges, Infrastructure Development Charges and other fees/taxes payable to the Haryana Government/Central Government and Preferential Location Charges and other charges. The Complainants defaulted in making payments. The construction has been completed in accordance with the Floor Buyer Agreement and possession of the unit would be offered within 6 months. The Opposite Party is ready to pay the penalty for delay in offer of possession as per the terms and conditions of the Agreement. The Complaint is totally false and frivolous and the same be dismissed.
Heard the Learned Counsel for the Parties and carefully perused the record. Learned Counsel for the Complainants submitted that as per clause 5.1 of the Agreement, the Opposite Party was bound to handover the possession within 36 months with 6 months grace period. As the Opposite Party failed to do so within the stipulated period, the Complainants are entitled for interest @ 18% as the Opposite Party also charged the same interest from the buyers. The Opposite Party admitted that the booking was made under subvention payment scheme which was available through India Bulls but could not continue due to interest related issues. Thereafter, the Complainants had to opt for construction linked plan. The Opposite Party also admitted that initially PLC was not applicable because of the location of the property and the same became applicable due to change in the layout plan. It was further submitted that till date the Opposite Party has not issued offer of possession to the Complainants. The Complainants cannot be made to wait for indefinite time.
Learned Counsel for the Opposite Party submitted that the Complainants were not “Consumers” as they were in the practice of purchasing multiple units in various projects and sell the same on huge profit. The Complainants supressed the material fact that they purchased two units in the project of the Opposite Party. Unit No.D1567-SF was purchased in the joint names of the Complainants and unit No.C1160-FF in the name of Complainant No.1.
On merits, the Learned Counsel for the Opposite Party submitted that the possession was to be handed over within 36 months with a grace period of 6 months from the date of receipt of requisite building plan and other requisite approvals from the concerned government authorities. The Opposite Party obtained the last pre-requisite permission i.e. BRI-III (approval of building plan) for construction of the unit on 23.01.2013, as such the time for handing over possession was 23.07.2016 as per terms and conditions of the Agreement. Moreover, due to various restrictions imposed by the National Green Tribunal and Hon’ble Supreme Court to curb pollution in the National Capital Regions construction could not be preceded in full swing. It was also submitted that as per clause 2.3 of the Agreement, the Preferential Location Charges (PLC) were subject to the changes in the layout plan. As the government authorities changed the layout plan, there was 4% increase in the PLC and the Complainants were duly intimated, vide letter dated 25.10.2012, about the increase in PLC. Learned Counsel submitted that the development work of the unit is completed and Opposite Party had already offered possession to the Complainants, vide letter dated 28.12.2020. The Complainants cannot be allowed any compensation if they have not produced evidence of loss sustained by them. As the Complainants have not produced any evidence relating to loss due to delay in offer of possession, they are not entitled for any compensation. However, the Compensation, if any, is to be decided in terms of the Agreement. The Complaint is liable to be dismissed.
Case of the Complainants is that they applied for allotment of a residential unit in the project “Sovereign Floors”, Esencia, Sector-67, Gurgaon Haryana developed by the Opposite Party. Opposite Party allotted residential unit No.D-1567-SF, 2nd Floor, vide allotment letter dated 26.09.2012. As per the Agreement, possession of the unit was to be handed over within 36 months from the date of the agreement with an extension of 6 months, subject to receipt of requisite building plans, approvals, permissions and force majeure etc, failing which the Opposite Party was required to pay delay compensation n@ Rs.10/- per sq. ft. per month. The Opposite Party changed the payment plan from subvention to construction linked plan and kept the Complainants away from the benefit of subvention scheme, due to which the Complainants had to bear the high rate of interest. The Complainants also suffered loss of Rs.3,34,318/- due to interest. The Opposite Party, vide letter dated 25.10.2012, demanded Rs.6.40 lakhs as PLC charges. The Complainants requested the Opposite Party to withdraw PLC charges but the Opposite Party insisted on payment of PLC charges. On 01.12.2012, the Opposite Party issued third demand of Rs.19,74,710/- and fourth demand of Rs.18,72,765/- on 26.12.2012. Thereafter, on 30.01.2013, the Opposite Party issued pre-cancellation notice to the Complainant.
The Complainants filed a Complaint under Section 22-C of Legal Services Authorities Act, 1987 before the Lok Adalat, Gurgaon. The same was dismissed with liberty to the Complainants to approach appropriate Forum.
Regarding their grievance relating to PLC charges, the Complainants also filed another Consumer Complaint before the District Forum, Gurgaon in January, 2016. Grievance relating to subvention scheme was also raised in another Consumer Complaint before the District Forum, Gurgaon in November, 2016. Thereafter, the Complainants withdrew the said Consumer Complaints. The District Forum, therefore, vide order dated 16.03.2017 dismissed the Complaints as withdrawn with liberty to the Complainants to approach the competent Forum having jurisdiction.
Despite payment of Rs.1,42,97,983/- as on 22.11.2014, the Opposite Party, failed to offer the possession of the unit.
Regarding maintainability of the Complaint, the Opposite Party alleged that the Complainants booked the unit for commercial purpose. They are, therefore, not “Consumers.” In the opening para of the Complaint, it is stated that the “Complainant No.2 is a practicing Advocate and the unit in question was applied for the purpose of residence of himself and his wife and to accommodate the Complainant No.1 and his family as also married sister of Complainant No.1 and her family.” The Opposite Party had not produced any evidence to show that the Complainants were in the business of real estate. The Opposite Party made bald allegation without there being any supporting evidence. Moreover, this Commission in Kavita Ahuja vs. Shipra Estate Ltd. 2016 (1) CPJ 31 (NC) held as follows: -
“6. … A person having surplus funds available with him would not like to keep such funds idle and would seek to invest them in such a manner that he gets maximum returns on his investment. He may invest such funds in a Bank Deposits, Shares, Mutual Funds and Bonds or Debentures etc. Likewise, he may also invest his surplus funds in purchase of one or more houses, which is/are proposed to be constructed by the service provider, in the hope that he would get better return on his investment by selling the said house(s) on a future date when the market value of such house (s) is higher than the price paid or agreed to be paid by him. That by itself would not mean that he was engaged in the commerce or business of purchasing and selling the house (s).
Generating profit by way of trading, in my view is altogether different from earning capital gains on account of appreciation in the market value of the property unless it is shown that the person acquiring the property was engaged in such acquisition on a regular basis and it was by way of a business activity.
From the facts of the case and the aforesaid judgment of this Commission, it is clear that the Complainants are Consumers as defined under Section 2 (1) (d) of the Act and the Consumer Complaint is maintainable.
As far as delay in delivery of possession is concerned, it is admitted by the Opposite Party that the unit in question is complete and they had offered the delivery of possession, vide letter dated 28.12.2020 but the Complainants refused to accept the same. As per the Agreement, the unit was to be completed by 23.07.2016. The Opposite Party admits that they offered possession on 28.12.2020, after expiry of three and a half years. The Opposite Party delayed in delivery of possession of the unit. Neither any new legislation was enacted nor an existing rule, regulation or order was issued stopping/suspending or delaying construction. There was no evidence of any lock-out or strike by the labour at the site of the project. There was no civil commotion, war, enemy action, terrorist action, earthquake or any act of God which could have delayed the construction of the project. The Opposite Party merely narrated a set of events and obstacles which are routinely faced by project developers. The Opposite Party failed to prove that there was any unforeseen and unexpected event which prevented the completion of the Project within the stipulated time period.
Moreover, this Commission in CC 379 of 2013 Sivarama Sarma Jonnalagadda & Anr vs. M/s Maruthi Corporation Limited & Anr decided on 21.09.2021 wherein it was held as follows:
“We are of the view that that the Complainant cannot be made to wait indefinitely for the delivery of possession and the act of the Opposite Party in relying on force majeure clause while retaining the amounts deposited by the Complainant , is not on only an act of deficiency of service but also amounts to unfair trade practice.”
The Complainant paid substantial amount of total consideration. As stated above, homebuyers’ cannot be made to wait indefinitely for possession of the flat. The Opposite Party failed to show that the Occupancy Certificate has been received. The Opposite Party builder failed to fulfil its contractual obligation of delivering possession of the flat to the Complainants within the time stipulated in the agreement, or within a reasonable time thereafter. The Complainant cannot be compelled to wait indefinitely for taking possession of the flat. The Apex Court in a numerous cases held that a consumer cannot be kept to wait for taking possession of the apartment. In these circumstances, the Complainants are entitled to refund of the principal amount with reasonable interest.
In view of the above, the Complaint is partly allowed. Opposite Party is directed to refund the entire amount deposited by the Complainants with interest @ 9% p.a. from the date of respective deposits till the date of realization within 3 months, failing which the Opposite Party shall pay the principal amount with interest @ 12% p.a. There shall be no order as to costs.