Daraksha Khan vs IREO Grace Realtech Pvt. Ltd. & Anr

V.K. Jain, J

Pursuant to an application submitted by the complainant on 23.03.2013, the OP allotted a residential apartment no. CD-A2-03-301 to the complainant vide allotment letter dated 12.08.2013, for the total consideration of Rs.1,96,01,772/-. The possession of the allotted apartment however, has not been offered to her and the construction has not been completed despite she having already paid a sum of Rs.60,60,828/- to the OP namely Ireo Grace Realtech Pvt. Ltd. The receipt of said amount is not in dispute. Since the possession of the allotted apartment has not even been offered to her, the complainant is before this Commission seeking refund of the amount paid by her to the OP alongwith compensation etc. The complaint has been resisted by the OP on the grounds which this Commission has already rejected in several other Consumer Complaints including CC No.3873 of 2017 Abhishek Khanna & Anr. Vs. M/s Ireo Grace Realtech Pvt. Ltd., decided on 28.03.2019.

The order of this Commission in Abhishek Khanna (supra), to the extent it is relevant, reads as under:

"2. Clauses 43, 44 & 49 of the terms and conditions of the agreement as contained in the applications, read as under:

Subject to Force Majeure, as defined herein and further subject to the applicant having complied with all its obligations under the terms and conditions of this Agreement and the applicant not having defaulted under any provision(s) of this Agreement including but not limited to the timely payment of the total Sale Consideration, stamp duty and other charges prescribed by the Company, the Company proposes to offer the possession of the said Apartment to the applicant within a period of 42 months from the date of approval of the building plans and/or fulfillment of the pre-conditions imposed thereunder ("Commitment Period"). The applicant further agrees and understands that the Company shall additionally be entitled to a period of 180 (6 months) days ("Grace Period"), after the expiry of the said commitment period to allow for unforeseen delays beyond the reasonable control of the Company. Subject to the condition contained herein, if the Company fails to offer possession of the said apartment to the applicant by the end of the Grace Period, it shall be liable to pay to the applicant compensation calculated at the rate of Rs. 7.5/- (Rupees Seven and Fifty Paisa only) per sq. ft. of Super Area ("Delay Compensation") for every month of delay thereafter until the actual date fixed by the Company for offering the possession of the said such 'Delay Compensation' only at the time of 'Notice of Possession' or at the time of payment of the final installment, whichever is earlier.

Subject to the above, in the event of delay by the Company in offering the possession of the said Apartment beyond a period of 12 months from the end of the Grace Period (such month period hereinafter referred to as the 'Extended Delay Period' then the applicant shall become entitled to opt for termination of the Agreement and refund of the actual paid up installment paid by it against the said Apartment. It is clarified that the delay compensation calculated for the fixed period of 12 months only shall be paid by the Company alongwith the installments refundable under this Clause without any interest. This option may be exercised by the applicant only up till dispatch of the Notice of Possession by the Company to the Applicant. No other claim, whatsoever, monetary or otherwise shall lie against the Company nor be raised otherwise or in any other manner by the Applicant.

Notwithstanding anything contained in this Agreement, timely performance by the applicant of all its obligations under this Agreement, including without limitation, its obligations to make timely payment of the Sale Consideration, maintenance charges and other deposits and amounts, including any interest, in accordance with this agreement shall be of essence under this Agreement. If the applicant neglects, omits, ignores, or fails in the timely performance of its obligations agreed or stipulated herein for any reason whatsoever or to pay in time to the Company any of the installments or other amounts and charges due and payable by the Applicant by respective due dates, the Company shall be entitled to cancel the allotment and terminate this Agreement in the manner described hereunder.

Clause 21.3 of the Buyers Agreement on which reliance was placed by the learned counsel for the OP, reads as under:

21.3 The allottee understands, agrees and consents that upon such termination, the Company shall be under no obligation save and except to refund the amounts already paid by the Allottee to the Company, without any interest, and after forfeiting and deducting the Earnest Money, interest on delayed payments, brokerage/commission/charges, service tax and other amounts due and payable to it, only after resale of the said Apartment. Upon termination of this Agreement by the Company, save for the right to refund, if any to the extent agreed hereinabove, the Allottee shall have no further right or claim against the Company and/or the Confirming Parties which, if any, shall be deemed to have been waived off by the Allottee and the Allottee hereby expressly consents thereto. The Company shall thenceforth be free to deal with the said Apartment in any manner whatsoever, in its sole and absolute discretion and in the event that the Allottee has taken possession of the said Apartment and everything whatsoever contained therein and in such event, the Allottee and/or any other person/occupant of the said Apartment shall immediately vacate the said Apartment and otherwise be liable to immediate ejectment as an unlawful occupant/trespasser. This is without prejudice to any other rights available to the Company against the Allottee.

It would thus be seen that the possession of the apartment ought to have been delivered to the aforesaid complainant within 42 months from the date of approval of the building plans and/or fulfillment of the pre-conditions if any, imposed under the approval of the building plans. The OP was entitled to a grace period of 180 days but only for the unforeseen reasons beyond its control. The grievance of the complainants is that not only the possession of the apartments was not offered to them, even the construction is not complete despite they having made substantial payment to the OP. The complainants are therefore, before this Commission seeking refund of the amount paid by them to the OP alongwith compensation in the form of interest etc.

The complaint has been resisted by the OP which has admitted the allotment made to the complainants as well as the payment received from them. The OP has contested the complaint inter-alia on the ground that since the fire safety approval came to be accorded on 27.11.2014, the complaint was pre-mature, the proposed date of delivery being 27.05.2018. Thus, according to the OP, they proposed to deliver possession by 27.05.2018 as against the case of the complainants that since the building plans for this project were approved on 23.07.2013, the possession ought to have been delivered latest by 23.07.2017 even if the grace period of six months is given to the OP. This is also the case of the OP that the parties are bound by the terms of the agreement executed between them, extracts from which have already been reproduced hereinabove.

The grounds on which the complaint has been resisted have already been rejected in a number of Consumer Complaints including CC No.1998 of 2016 Subodh Pawar Vs. M/s. Ireo Grace Realtech Pvt. Ltd. & Ors. decided by this Commission on 24.09.2018.

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The decision of this Commission in Subodh Pawar (supra) to the extent it is relevant, reads as under:-

As far as clause 44 of the indicators from the terms and conditions of the Apartment Buyers Agreement is concerned, this Commission, vide its order dated 18.09.2018 passed in CC No.190/2017 and connected matters, has already held that the said clause is wholly unfair besides being one sided and therefore, refund of the principal amount with appropriate compensation can be directed by this Commission despite the said clause The decision of this Commission in CC No.190/2017, to the extent it is relevant, reads as under:

The learned senior counsel for the OP has drawn my attention to clause 44 of the terms and conditions, extracted hereinabove and he submits that the aforesaid clause gives only a limited right to the complainants to terminate the agreement and seek refund of the amount paid by them. He also submits that in terms of the aforesaid clause, the contract could be terminated after a delay of at least 12 months, and only the delay compensation in terms of the agreement, for twelve months, is payable alongwith installments refundable to the allottee without any interest. However, in my view, since the OP failed to deliver possession of the allotted flats to the aforesaid complainants, it amounted to a deficiency in rendering service to them and therefore, this Commission is entitled to direct refund of the amount paid by them to the OP alongwith appropriate compensation. In my view, clause 44 which postpones the right of the flat buyer to terminate the agreement and seek compensation even after the grace period has expired, is wholly unfair besides being one sided and therefore, refund of the principal amount with appropriate compensation can be directed by this Commission despite clause 44 extracted hereinabove.

As far as clause 21.3 of the Buyers Agreement extracted hereinabove is concerned, the said clause, when read in conjunction with the other clauses of the agreement extracted hereinabove, is patently unfair, besides being one sided. If these clauses are given effect, it would result in a situation where a flat buyer, despite the failure of the builder to offer possession within the time stipulated in this regard and without there being any justification for doing so, will be practically remediless for 1½ years from the date of the default, no interest or compensation will be paid to him for the period his money is utilized by the builder, and even the principal amount will be repaid to him in an uncertain future, when the builder has already sold the apartment which was allotted to him. Such a term in the contract would be wholly one sided, unfair and unjust particularly when examined in the light of the fact that as far as the builder is concerned, he has a right to terminate the transaction in the event of even a single default on the part of the flat buyer and not only forfeit the earnest money but also deduct the other charges specified in clause 21.3 of the Buyers Agreement.

The learned counsel for the OPs submits that the parties having agreed to all the above referred stipulations, are bound by the same and cannot be allowed to have a grievance at a later date claiming the same to be unfair or one sided. No doubt the parties are ordinarily bound by the terms and conditions agreed between them in respect of a particular transaction, but the position would be altogether different where such terms are found to be wholly one sided and unfair, operating only to the detriment of the flat buyers without any corresponding detriment to the builder.

If a builder fails to deliver possession of the flat/plot booked with him, within the time period committed for this purpose and is unable to justify the said delay, this, in my opinion, would constitute a defect or deficiency in the services rendered by him to the buyer and in such a case, this Commission, in exercise of the powers conferred upon it by Section 14(1)(c)&(d) of the Consumer Protection Act would be competent to direct refund of the amount paid by the buyer to the builder, alongwith appropriate compensation for the loss or injury suffered by the buyer due to the defect/deficiency in the services rendered to him by the builder.

It would thus be seen that in these cases, the last date for offering possession of the flats expired on 23.01.2017, the construction is not complete even today, and even today, there is no certainty as to when the OPs will be able to apply for and obtain the requisite Occupancy Certificate. The complainants therefore, cannot be compelled to keep on waiting for the apartments, and are entitled to seek refund of their money with suitable compensation. xxxx"

The learned counsel for the complainant states on instructions that in order to avoid any further litigation in the matter, the complainant is restricting her claim to the refund of the principal amount paid by her to the OP alongwith compensation in the form of simple interest @ 10% per annum w.e.f. 10.07.2017, which was the interest awarded by the Hon'ble Supreme Court to another allottee of this very project by way of a consent order dated January 28, 2019 in Civil Appeal Diary No.48101 of 2018, provided that payment is made within four weeks.

The above referred order of the Hon'ble Supreme Court reads as under:

"Mr. Mukul Rohatgi, learned senior counsel upon instructions from Mr. Manjeet Singh, the authorized representative of the appellant, states that the moneys which are due and payable under the impugned order of the National Consumer Disputes Redressal Commission to the four other purchasers, namely, Surendra Arora, Kirti Singh, Mohit Arora and Manu Rikhye shall be refunded within a period of four weeks from today, together with interest at the rate of 10 per cent per annum with effect from 10 July 2017 until the date of payment.

It has been agreed by the respondents that if the aforesaid payment is made in the terms as agreed, all the aforesaid payment is made in the terms as agreed, all the claims, dues and outstandings of the respondents shall stand closed and the execution proceedings before the NCDRC shall stand withdrawn. In the event of default, the appellant shall lose the benefit of this order and the order passed by the NCDRC shall stand.

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In view of the said statement, the complaint is disposed of in the following terms:

The OP shall refund the entire amount received from the complainant to her alongwith compensation in the form of simple interest @ 10% per annum w.e.f. 10.07.2017 till the date of entire payment, within four weeks from today, provided that the entire payment is made, within four weeks from today, failing which the interest shall be payable from the date of each payment to the OP, till the date of entire payment to the complainant in terms of this order.