Dev Arora vs M/s Sweta Estates Pvt. Ltd

The present Review Application No. 339 of 2018 has been filed by the Applicant/Appellant, Dev Arora, (the Original Complainant) in First Appeal No. 1018 of 2016 praying for recalling of the Order dated 30.09.2016 passed by this Commission wherein the First Appeal No. 1018 of 2016 was dismissed as withdrawn.

I.A. No. 9498 of 2021 has been filed by the Respondent/Opposite Party seeking liberty to place additional documents on record and for directions to dismiss the Consumer Case No. 1513 of 2016.

The brief facts of the case relevant for disposal of the Review Application, Interim Application as well as Consumer Complaint No. 1513 of 2016 filed by Mr. Dev Arora, the original Complainant are that the Flat No. 9-B, Belgravia, Tower-F, Central Park-II, Gurgaon having area of 2350 sq. feet was provisionally allotted to one, Raj Kumar Budhiraja and Anita Budhiraja by the Opposite Party, M/s. Sweta Estates Pvt. Ltd. (hereinafter to be refereed to as “the Developer”) . The Apartment Buyer’s Agreement was executed between the parties on 29.07.2013. The total Sale Consideration of the Flat in question was ₹2,82,00,000/- plus service tax @ Rs. 12,000/- per sq. feet and the possession was to be delivered within six months from the date of execution Apartment Buyer Agreement. Vide Agreement dated 19.07.2013, Complainant purchased the said plot from Raj Kumar Budhiraja and Anita Budhiraja and  consequently, copy of Apartment Buyer Agreement was handed over to him with endorsement dated 31.07.2013 in his favour. He acted upon the agreement executed in between Opposite Party/Developer and Raj Kumar Budhiraja and Anita Budhiraja as per which the possession was to be delivered by 28.01.2014. Authorised representatives of Developer /Opposite Party promised timely delivery of possession when the aforesaid Transfer Deed was executed in favour of the Complainant. Accordingly, a payment of ₹1,60,95,145/- up to 24.12.2013 including interest was paid  by the Complainant to the Opposite Party Developer. Vide letter dated 11.06.2015 the Developer demanded VAT amounting to ₹3,32,000/- payable by 10.07.2015. The said payment was raised allegedly on the basis of the orders of learned Punjab and Haryana High Court. It is the case of the Complainant that again Vide Letter dated 12.8.2015 possession was offered and he was asked to deposit another ₹1,79,88,951/- by 11.09.2015. He was told that the possession would be delivered within 30 days after completion of all the formalities. According to the Complainant, the demand of ₹14,39,350/- by the Developer was also not justified. He further refused to make payment of balance 50% as he did not see the Developer doing any work in the flat in dispute or the tower in which it was situated. Meanwhile, the Complainant took another Flat on rent vide agreement dated 01.08.2013. He informed the Developer that unless interest on the amount, already paid by him is refunded and was compensated qua the rent, he would not make further payments as the possession was already delayed by two years. Complainant submitted that the Developer sent letters dated 09.11.2015, 04.12.2015, 05.01.2016 about balance payment which were replied informing that due to the Developer act negligence, he had already suffered a loss to the tune of ₹82,20,524/-.

Alleging deficiency in service on the part of the Developer the Complainant filed Consumer Complaint No. 121 of 2016 before the State Dispute Redressal Commission, Haryana Panchkula (hereinafter referred to as the State Commission) seeking a direction to the Developer to hand over possession of the Flat, interest @15% per annum on the amount already deposited by him till the date of handing over of actual physical possession and to reimburse rent amounting to ₹11,78,200/-, along with compensation for mental trauma etc.

Having considered the material available on record and on perusal of the evidence adduced by the parties, the State Commission, vide its Order dated 10.6.2016, dismissed the Complaint Case No. 121 of 2016 observing as under:-

“ Learned counsel for the complainant vehemently argued that keeping in view the brochure and advertisement he purchased flat in question.  As per advertisement this unit was fit for delivery of possession in the month of December 2011 vide clause No.9.11 of buyers agreement dated 29.07.2013 the possession was to be delivered within six months from the date of execution of the agreement i.e. January 2014.  When flat was booked, project was already constructed so there was no question of any increase  in the area mentioned in agreement which was 2350 sq. feet. This unilateral decision and is not binding upon him. O.P. cannot ask to pay for additional area at the new rate whereas it should have been as per rate prevailing at the time of booking. He had already deposited 50% amount as per possession linked plan.  When the flat is not ready for possession he cannot be asked to pay the remaining amount including the electricity connection charges, which he is not liable to pay.  So O.Ps. be directed to make payment to him and not to recover any amount from him, as mentioned above.  He placed reliance upon the opinion of Hon’ble National Commission expressed in consumer case No.1479 of 2015 titled as Developers Township property owners welfare society Vs. Jaiprakash Associates Limited decided on 02.05.2016,   Swarn Talwar & 2 Ors. Vs. Unitech Ltd in complaint No.347 of 2014, decided on  14.08.2015, Abhishek Agarwal and anr. Vs. M/s Unitech Limited decided on 08.06.2015 and opinion of this commission in Vinita Goyal Vs. Unitech Limited 2014 (3) CPJ 139.

This argument is devoid of any force.  As per facts mentioned above, it is clear that complainant purchased this flat from Raj Kumar Budhiraja and Anita Budhiraja he is subsequent purchaser and is not initial allottee.  He was never misguided by the O.P.  He purchased this flat from the previous owner with open eyes.  It cannot be alleged by him that due to persuasion by O.P. he purchased this flat.  Agreement was signed in between Raj Kujmar Budhiraja and Anita Budhiraja and O.P.  Complainant was never assured that he will be deliver possession within six months from the date of agreement.  Agreement in between complainant and Raj Kujmar Budhiraja and Anita Budhiraja was executed on 19.07.2013 whereas buyers agreement was executed in between Raj Kujmar Budhiraja and Anita Budhiraja on 29.07.2013.  If he was having interest on the said date then whey he did not execute agreement with O.P. When there was no agreement in between complainant and O.P. so it cannot be alleged by him that he was misguided by O.P.

Further it is no-where mentioned the agreement dated 29.07.2013 that area of flat cannot be increased. As per this agreement there can be increase or decrease up to 10% of the super area. It is no where mentioned therein that consent of the allottee was required.  As per facts mentioned above, it is clear that the complainant has not paid remaining 50%, so he is also defaulter. As he did not make payment in time he was not entitled for interest as opined by Hon’ble National Commission in First appeal No.06 of 2014 in  Randhir Singh Vs. Omaxe Chandigarh Extension Developers (P) Ltd. dated 27.11.2014. When possession is offered he is not entitled for interest as claimed by him as per opinion of Hon’ble Supreme Court Commission expressed in Haryana Urban Development Authority Versus Raje Ram, 1(2009) CPJ, 56 wherein the Hon’ble Supreme Court has opined as under:-

“Housing-Re-allotment-Interest-Award of-Where possession given at old rate, party has got benefit of escalation in price of land, interest should not be awarded on amounts paid by allottees due to delay in allotment-Respondents re-allottees aware about delay – Cannot be compared with original allottees, who waited for a decade or more for delivery of possession-Possession delivered-Consumer complaint filed within short period from date of re-allotment, without paying full price-Award of interest neither warranted, nor justified- Orders of District Forum, State and National Commission awarding interest set aside.”

More so, the compensation claimed by complainant is highly exaggerated and not borne out by the material placed on the record.  At the time of the admission of complaint Commission can see whether the compensation claimed is inflated or not just to bring complaint within it’s pecuniary jurisdiction.  The instant complaint is nothing but an abuse of process of law.  He cannot derive any benefit from the cited case laws because they are based on altogether different facts.  In those cases either the consent of allottees was required or there was lapse on the part of builder only, whereas in this case there is fault on the part of the allottee also.  Hence, the complaint is not maintainable before the Commission and the same is hereby dismissed.”

Dis-satisfied with the aforesaid order, Applicant/Appellant/Complainant filed First Appeal No. 1018 of 2016 before this Commission on the ground that learned State Commission entertained the Complaint bearing Consumer Complaint No. 121 of 2016 filed by the Applicant/Appellant, without considering the provision of pecuniary jurisdiction under Section 17(1)(a) of the Consumer Protection Act, 1986.

By Order dated 30.09.2016 which is sought to be recalled by the present Review Petition, the First Appeal was dismissed as withdrawn with the following observations

“   Learned Counsel appearing for the Appellant states that since a fresh Complaint on the same cause of action has already been filed and the same has been entertained, he has instructions not to press this Appeal. Ordered accordingly. The Appeals stands disposed of.”

It is pertinent to mention here that the Consumer Complaint No. 1513 of 2016 was filed before this Commission seeking the identical relief as in Complaint Case No. 121 of 2016 before the learned State Commission.

Now, the Applicant/Appellant has filed the Review Application No. 339 of 2018 in First Appeal No. 1018 of 2016, before this Commission on the following grounds: -

(i)   The Review Application had been filed for re-examining/reconsidering the effect of the Orders 02.09.2016 and 30.09.2016 passed by this Commission in Consumer Complaint No. 1513 of 2016;

(ii)  The State Commission had committed a grave error by not considering the provisions of Section 17(1)(a) regarding pecuniary jurisdiction of the Consumer Fora, while dismissing the Consumer Complaint No. 121 of 2016;

(iii) The Complainant had already paid a sum of ₹1,60,95,145/- inclusive of interest for the delayed payment of amount demanded as against the agreed consideration of ₹2,82,00,000/- as per the "Apartment Buyer Agreement".  Since the consideration paid was more than ₹1 Crore (the pecuniary jurisdiction of the State Commission at the time of filing of complaint before it was ₹20,00,000/-) therefore, the learned State Commission erred in law in not returning the complaint for filing before the appropriate form.

(iv) The State Commission ought not to have entertained the Complaint for want of pecuniary jurisdiction.

(v)  Vide Order dated 02.09.2016, this Commission has granted the permission to  the Complainant to file a fresh Complaint as prayed for on the same cause of action the Complainant to file the Review Application.;

(vi) This Commission observed that the impugned order passed by learned State Commission in Consumer Complaint No. 121 of 2016 vide its Order dated 10.06.2016, is non-est, therefore, allowed the Applicant/Appellant to withdraw his Appeal on filing of a fresh Complaint.

Applicant/Appellant has sought the following relief in the Review Application:-

(i)   That the proceeding of the First Appeal No. 1018/2016 in order passed thereon may be recalled for fresh examination and for adjudication that order passed by State commission was beyond jurisdiction;

(ii)  To recall the order dated 30.09.2016 of this Commission in FA no. 1018/2016 for fresh consideration and set aside the order of the State Commission without jurisdiction.

(iii) For such clarification, modification and directions as this Commission may deem fit and expedient.

In reply to the Review Application, it has been, inter-alia, contended by the Learned Counsel for the Opposite Party Developer that; the order passed by the State Commission dismissing the Complaint is based on due appreciation of the facts and evidence; the Complainant on his own discretion has withdrawn the Appeal filed before this Commission against the Order of the State Commission; Consumer Complaint No. 1513 OF 2016 filed by the Complainant is barred by the principle of res judicata; Consumer Complaint No. 1513 of 2016 is not maintainable as the Complainant had already filed a Consumer Complaint No. 121 of 2016 before the State Commission prior to filing of this Complaint on the same cause of action and the same was dismissed by the State Commission by its detailed and well-reasoned order; No ground for review of order dated 30.09.2016 has been made out by the Complainant as there was no error “apparent on the face of the record” in the said Order; Review Application No. 339 of 2018 had been filed at a belated stage and no application seeking condonation of delay in filing the Appliction has been filed; the Opposite Party Developer had filed its reply on 07.12.2016 in Consumer Complaint No. 1513 of 2016 and the Review Application has been filed only on 02.07.2018, after the matter was taken up for final hearing;  the present application is forum shopping and abuse of  the process of law; Review Application No. 339 of 2018 could not be entertained unless the Applicant/Appellant first withdrew Consumer Complaint No. 1513 of 2016 pending before this Commission; while issuing the notice in Consumer Complaint, this Commission has not set aside the order of the State Commission. Applicant/Appellant did not mention the specific provision under which he invoked the jurisdiction of this Commission to recall the order dated 30.09.2016; No such application is maintainable under Section 151 C.P.C. as mentioned by the Applicant/Appellant, therefore, the same is liable to be dismissed on this ground alone.

Having heard the learned counsel for the parties on the Review Application and on perusal of the facts of the case, we are of the considered view that there is no merit in the present Review Application and it is liable to be dismissed.

Since, the possession of the allotted Unit was not handed over to the Complainant and there was a dispute between the parties regarding payment of excess Super Area, VAT and Service Tax, the Complainant filed the Consumer Complaint No. 121 of 2016 before the State Commission with the prayer to hand over the physical possession of the Unit, pay the interest on the amount deposited with the Developer, reimbursement of rent charges paid by the Complainant and compensation. The said Consumer Complaint was dismissed by the State Commission vide its Order dated 10.06.2016 holding that the Complainant had purchased the Unit with open eyes, he was never promised that possession would be delivered within six months from the date of purchase and there would be no increase in super area, he was defaulter in making the due payments, he was not entitled for interest due to non-payment of instalments and the claim was highly exaggerated.

Questioning the legality of the said order, the Complainant filed the First Appeal No. 1018 of 2016 before this Commission on 22.08.206. On 02.09.2016, the Bench presided by the Hon’ble Mr. Justice D.K. Jain, the then President  and Hon’ble Mrs. M. Shreesha, Member passed the following order in the said First Appeal:-

“  At the outset, Mr. Rajesh Mahna, Counsel for the Appellant/Complainant, states that having regard to the nature of the prayer made in the Complaint, perhaps the Appellant was ill-advised to file the Complaint before the Haryana State Consumer Disputes Redressal Commission at Panchkula, as, under any circumstances, the value of the goods and compensation claimed would exceed ₹1.00 Crore.  He states that the Appellant shall file a fresh Complaint within two weeks and till the same is filed, hearing in this Appeal may be deferred, with ad-interim direction to the Respondent not to create third party interest in the subject flat.

In view of the above, while deferring the hearing in this Appeal to 30.09.2016, we direct that the Respondent shall maintain status-quo, in respect of nature, title and possession of the subject flat as it exists today, till the next date.”

It is most imperative to mention here that in pursuance to the liberty granted by this Commission vide afore-extracted Order dated 02.09.2016, the present Consumer Complaint No. 1513 of 2016 was filed before this Commission on 14.09.2016. It is further pertinent to mention that both, the Consumer Complaint No. 1513 of 2016 and First Appeal No. 1018 of 2016 were listed before the Bench presided over by the Hon’ble Mr. Justice D.K. Jain, the then President on 30.09.2016.  On the said date, the Bench passed the following order in Consumer Complaint No. 1513 of 2016:-

“  For the present, the Complainant is exempted from removing the objections pointed out by the office.

Issue notice in the Complaint to the Opposite Party to show cause as to why the Complaint be not admitted, returnable on 24.10.2016.

In the meanwhile, status quo in respect of the nature, title and possession of the flat in question shall be maintained.”

Taking cognizance of the Order dated 30.09.2016 passed in the Consumer Complaint No. 1513 of 2016 and the afore-extracted order dated 02.09.2016 passed in First Appeal No. 1018 of 2016, the Hon’ble Bench has dismissed the First Appeal No. 1018 of 2016 as withdrawn on the statement of the Learned Counsel for the Complainant that a fresh complaint on the same cause of action has already been filed and the same has been entertained by this Commission.  From a bare perusal of the above extracted orders, it would reveal that the Hon’ble Bench presided over by the Hon’ble Mr. Justice D.K. Jain, the then President, while dismissing the First Appeal as withdrawn was well aware of the filing of a fresh complaint on the same cause of action in terms of its directions that 02.09.2016 given in the First Appeal No. 1018 of 2016.

For the aforesaid reasons, the Review Application is allowed and the Order dated 30.09.2016 is recalled and further modified to the extent that since a fresh Complaint has already been filed and entertained by this Commission, the present First Appeal has become infractuous and is dismissed as such. Hence, the contention of the Learned Counsel for the Developer that the Consumer Complaint is not maintainable is rejected.

During the course of hearing of the Complaint, the Opposite Party Developer has filed the I.A. No. 9498 of 2021 seeking leave to place additional documents on record and for dismissal of the Consumer Complaint No. 1513 of 2016 on the grounds that;  during the pendency of Consumer Complaint No. 1513 of 2016 before this Commission, the Complainant has filed Complaint No. 992 of 2018 before the Ld. Haryana Real Estate Regulatory Authority, Gurugram (hereinafter  to be referred to as the “HARERA”) with respect to the same Apartment, and seeking similar reliefs;  by way of Order dated 26.02.2019, learned HARERA, Gurugram had decided the Complaint no. 992 of 2018 by a detailed judgment proceeding ex-parte against the Opposite Party and directing it to give physical possession of the Unit in question within two months to the Complainant from the date of its order after getting outstanding amount as per agreement along with interest and compensation. In the Execution Proceedings on 28.01.2020, the aforesaid order was modified by Ld. HARERA to the extent that both parties i.e. Complainant as well as Opposite Party would charge the interest @10.75% p.a. The Appeal filed by the Developer against the said order of HARERA, Gurugram is pending before Haryana Real Estate Appellate Tribunal, Chandigarh. Since the claims of the Complainant as mentioned in Complaint Case No. 1513 of 2016, pending before this Commission, had already been decided by another Competent and Parallel Authority i.e. HARERA on merits, the Complainant was indulged in Forum Shopping which is not permissible under the Law. It is further submitted that since the Occupation Certificate has been obtained by the Developer before coming into existence of RERA Act, they are ready to comply with the directions of the HARERA, Gurugram including handing over the possession of apartment, payment/crediting of compensation subject to Complainant paying the outstanding dues and withdrawing Consumer Complaint No. 1513 of 2016.

In reply to the said Interim Application, it is submitted by the Learned Counsel for the Complainant that; by filing the I.A. No. 9498/2021 the Opposite Party Developer had in fact admitted the position of not handing over of the possession of the Residential Unit to him within the stipulated time period; the Hon'ble Supreme Court in the matter of “M/s. Imperia Infrastructure Ltd. vs. Anil Patni and Anr.” – (2020) 10 SCC 783,  has held that the provisions of the RERA Act did not bar consideration of the grievance of the allottee by other Forums. The similar view was taken by the Hon’ble Supreme Court in the case of in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, II (2019) CPJ 34 (SC),  Thus, Complainant had first chose and elected to file a complaint before this Commission has thereafter elected to pursue remedy under RERA; though there is no bar for the Complainant to pursue the remedy before the RERA but the Complainant had chose not to pursue the said remedy and appropriate as on date any of the benefits accruing out of the orders passed by the RERA.  Even as per the statement of the Opposite Party, the Project is not covered under the RERA and they had chosen to file an appeal against the said orders passed under RERA on the said ground. Further, the Complainant despite Orders passed by the RERA has elected to continue with and pursue the present proceedings under the Consumer Protection Act. Since, it is submitted on behalf of the Complainant that he is willing to pursue the remedy only before the Consumer Fora and is not intended to take advantage of the various Orders passed by the RERA, we are of the view that the Complainant shall be entitled for the relief, if any, granted by this Commission only on withdrawing the proceedings initiated before the RERA. Moreover, law has been laid down by the Hon’ble Supreme Court in the case of “M/s. Imperia Infrastructure Ltd. (Supra) that the Doctrine of Election is applicable and it is always open to a person either to approach the fora under the Consumer Protection Act, 1986/2019 or to approach any other Authority under Real Estate Regulatory Authority Act, 2016 or NCLT under the provisions of Insolvency and Bankruptcy Code, 2016 for redressal of his grievance. The person who has approached to any of the Authorities referred to above, at the first instance, is estopped from approaching other two Authorities as Doctrine of Election applies. Admittedly, in the present case, the Complainant has approached this Commission in the year 2016 and Consumer Complaint No. 992 of 2018 was filed in HRERA in the year 2018.  Thus, strictly speaking the Doctrine of Election has to be applied and the Complainant is estopped from approaching HRERA or any other Authority as they had already approached this Commission. Hence, the I.A. No. 9498 of 2021 is disposed of with the above observations.

The Consumer Complaint No. 1513 of 2016 has been contested by the Opposite Party Developer on the grounds that prior to this Complaint, Complainant has filed Consumer Complaint No. 121 of 2016 on the same cause of action and relief before the State Commission which was dismissed; Appeal filed against the said order was also dismissed by this Commission; though the Complainant and other Flat Buyers had defaulted in making the payments of due instalments, the Opposite Party Developer has completed the Project despite recession in the Real Estate; the Complainant is  the re-allottee and not the original Allottee; the Complainant has filed the Consumer Complaint on the same cause of action before RERA; the Complainant has not made any representation regarding delay in possession to the Opposite Party; the Flat in question was ready for possession in the year 2015 itself and the Opposite Party had offered Possession vide letter dated 12.08.2015; as per clause 2.1. of the agreement, the Complainant is liable to pay any increase in super area; the relief claimed by the Complainant is not covered under the CP Act; the Complainant is not a consumer and is merely an investor; clearance of all the dues was pre-requisite condition for handing over the possession etc.

We have heard the learned Counsels for the parties at some length and also perused the material as well as evidence available on record.

Learned Counsel appearing for the Complainant vehemently submitted that IA No. 9498/2021 is liable to be dismissed as the Complainant has additional remedy before the RERA; the Complainant had withdrawn the Execution No. E/6561/992/2021 filed before the RERA and as such proceedings under RERA stand withdrawn. The Opposite Party Developer had always made an attempt to show that the Flat allotted to the Complainant was ready for handing over the possession but in fact but the Unit was not ready for residential Occupation.  The Complainant was always willing to pay the balance Sale Consideration at the time of taking the possession;

With regard to the objection taken by the Opposite Party that the Complainant cannot do the forum shopping by filing the Complaint before the RERA, it has already been observed by the us in the aforesaid paras that as per the decision of the Hon’ble Supreme in “M/s. Imperia Infrastructure Ltd. (Supra)  the Doctrine of Election is applicable in the present case.  Even otherwise, the Complainant has already withdrawn the proceedings initiated by him before the RERA.

The contention of the Learned Counsel for the Opposite Party that the Complainant is not a ‘Consumer’ and that he has booked the subject flat for earning profits is completely unsustainable in the light of the judgement of this Commission in Kavita Ahuja vs. Shipra Estates I (2016) CPJ 31, in which the principle laid down is that the onus of establishing that the Complainant was dealing in real estate i.e. in the purchase and sale of plots/ flats in his normal course of business to earn profits, shifts to the Opposite Party, which in the instant case they had failed to discharge by filing any documentary evidence to establish their case. Therefore we are of the considered view that the Complainant is a ‘Consumer’ as defined under Section 2 (1)(d) of the Act.

In so far as, the contention of the Learned counsel for the Opposite Party that the Complainant is not an originally allottee and is a subsequent buyer, is concerned, we do not find any merit in the said submission.

In this regard, a reference can be made to the decision of the Hon’ble Supreme Court in “Laureate Buildwell Pvt. Ltd. vs. Charanjeet Singh” [2021 SCC OnLine SC 479], in which it has been held that subsequent purchaser who takes over the obligation of the Original purchaser to pay the balance amount, would not per se exclude them from the description of a Consumer, by observing as under:-

“23.   The builder does not deny that upon issuance of the endorsement letter, the purchaser not only stepped into the shoes of the original allottee but also became entitled to receive possession of the flat. There is no denial that the purchaser fulfils the description of the complainant/consumer and is entitled to move any forum under the Consumer Protection Act for any deficiency in service. The question then is whether a subsequent purchaser is not entitled to similar treatment as the original allottee, and can be denied relief which otherwise the original allottee would have been entitled to, had she or he continued with the arrangement. An individual such as the original allottee, enters into an agreement to purchase the flat in an on-going project where delivery is promised. The terms of the agreement as well as the assurance by the builder are that the flat would be made available within a time-frame. It is commonplace that in a large number of such transactions, allottees are not able to finance the flat but seek advances and funds from banks or financial institutions, to which they mortgage the property. The mortgage pay-outs start initially after an agreed period, commencing in a span of about 15 to 24 months after the agreement. This would mean that in most cases, allottees start repaying the bank or financial institutions with instalments (mostly equated monthly instalments) towards the principal and the interest spread over a period of time, even before the flats are ready. If these facts are taken into consideration, prolongation of the project would involve serious economic repercussions upon such original allottees who are on the one hand compelled to pay instalments and, in addition, quite often-if she or he is in want of a house-also pay monthly rents. Such burdens become almost intolerable. It is at this point that an indefinite wait is impossible and allottees prefer to find purchasers who might step into their shoes. That such purchasers take over the obligations of the original allottee - either to pay the balance instalments or to wait for sometime, would not per se exclude them from the description of a consumer. All that then happens is that the consumer forum or commission - or even courts have to examine the relative equities having regard to the time frame in each case.

It was further held that absence of privity of contract is not a bar for maintaining a Complaint against a service provider, by observing as under:-

In another decision, Canara Bank v. United India Insurance Co. Ltd. (2020) 3 SCC 455, the issue which this court had to consider was whether the insurer could repudiate liability in respect of a fire which destroyed farm produce kept in a cold storage, when the farmers had no privity with the insurer, but with the cold storage, and who availed credit on the security of the crop. The court held as follows:

“28. Taking the issue of privity of contract, we are of the considered view that as far as the Act is concerned, it is not necessary that there should be privity of contract between the Insurance Company and the claimants. The definition of “consumer” under Section 2(d) quoted hereinabove is in two parts. Sub-clause (i) of Section 2(1)(d) deals with a person who buys any goods and includes any user of such goods other than the person who buys such goods as long as the use is made with the approval of such person. Therefore, the definition of consumer even in the first part not only includes the person who has purchased but includes any user of the goods so long as such user is made with the approval of the person who has purchased the goods. As far as the definition of “consumer” in relation to hiring or availing of services is concerned, the definition, in our view, is much wider. In this part of the section, consumer includes not only the person who has hired or availed of the services but also includes any beneficiary of such services. Therefore, an insured could be a person who hires or avails of the services of the Insurance Company but there could be many other persons who could be the beneficiaries of the services. It is not necessary that those beneficiaries should be parties to the contract of insurance. They are the consumers not because they are parties to the contract of insurance but because they are the beneficiaries of the policy taken out by the insured.

The definition of “consumer” under the Act is very wide and it includes beneficiaries who can take benefit of the insurance availed by the insured. As far as the present case is concerned, under the tripartite agreement entered between the Bank, the cold store and the farmers, the stock of the farmers was hypothecated as security with the Bank and the Bank had insisted that the said stock should be insured with a view to safeguard its interest..”

If one also considers the broad objective of the Consumer Protection Act, which is to provide for better protection of the interests of consumers and for that purpose, provide for the establishment of Consumer Councils and other authorities for the settlement of consumer disputes and for matters connected therewith, as evident from the Statement of Objects and Reasons of the Act. The Statement further seeks inter alia to promote and protect the rights of consumers such as—

“(a) The right to be protected against marketing of goods which are hazardous to life and property;

(b)   the right to be informed about the quality, quantity, potency, purity, standard and price of goods to protect the consumer against unfair trade practices;

(c)   the right to be assured, wherever possible, access to variety of goods at competitive prices;

(d)   the right to be heard and to be assured that consumers' interests will receive due consideration at appropriate forums;

(e)   the right to seek redressal against unfair trade practice or unscrupulous exploitation of consumers; and

(f) right to consumer education.”

In Lucknow Development Authority v. M.K. Gupta (1994) 1 SCC 243, this Court held:

“The importance of the Act lies in promoting welfare of the society by enabling the consumer to participate directly in the market economy. It attempts to remove the helplessness of a consumer which he faces against powerful business, described as, ‘a network of rackets’ or a society in which, ‘producers have secured power’ to ‘rob the rest’ and the might of public bodies which are degenerating into storehouses of inaction where papers do not move from one desk to another as a matter of duty and responsibility but for extraneous consideration leaving the common man helpless, bewildered and shocked.”

It was further held that:-

“The Act thus aims to protect the economic interest of a consumer as understood in commercial sense as a purchaser of goods and in the larger sense of user of services. … It is a milestone in history of socioeconomic legislation and is directed towards achieving public benefit.”

This court has further observed in State of Karnataka v. Vishwabharathi House Building Coop. Society, (2003) 2 SCC 412, that (the) “provisions of the said Act are required to be interpreted as broadly as possible. It has jurisdiction to entertain a complaint despite the fact that other forums/courts would also have jurisdiction to adjudicate upon the lis”8

It is therefore evident that the Consumer Protection Act, 1986 was conceived as a legislation to address complaints of consumers (an expression defined and interpreted widely) and provide a forum for their quick redressal, and, furthermore, wherever third parties have claimed relief, technicalities have been brushed aside consistently, by this court. Thus, even after an original consumer is indemnified for a fire accident, the insurer can maintain a complaint against the carrier/service provider, and claim damages (of course along with the insured party). Likewise, absence of privity of contract is not a bar for maintaining a complaint against a service provider, by a third party who suffers an incident, which is otherwise covered by an agreement…...”

In view of the law laid down by the Hon’ble Supreme Court in the above case, it is clear that the Complainant is entitled for all the benefits which were available to the Original Allottee since he/she has entered into his/her shoes. Therefore, the said contention is also rejected.

With regard to the submission made by the learned Counsel for the Opposite Party Developer that the Complainant has defaulted in timely making payment of the installments due which has in turn resulted in delay in handing over the possession of the allotted Plot, I am of the considered view that if there was default in making the timely payments by the Complainant, the Opposite Party Developer was empowered in terms of Agreement either to charge interest on the delayed payment to or cancel the allotment and refund the deposited amount, however, the Opposite Party Developer has neither cancelled the allotment nor refunded the amount.  Therefore, I see no force in on the said submission and it is rejected.

With regard to the dispute regarding payment of increase in super area and other charges such as club charges etc. the Hon’ble Supreme Court in Civil Appeal No.3864-3889 of 2020 vide Order dated 14.12.2020 modified the Order dated 03.01.2020 passed by this Commission in Consumer Complaint No. 3441 of 2017, in following terms:-

(i) The compensation on account of delay in handing over possession of the flats to the flat buyers is reduced from 7% to 6%; and

(ii) The direction for the refund of parking charges and club charges and interest on these two components shall stand set aside.”

SUPER AREA

In terms of Annexure-II of the Agreements executed between the developer and the allottees, the price of the apartments was to be calculated on the basis of its super area.  It was also noted in the above referred clause that the super area mentioned in clause 1.1 was only tentative and could change.   The allottees had agreed not to object to the change of the super area.  However, if the super area was to increase/decrease by more than 15% on account of any alteration/modification/change, the allottees were required to be intimated in writing before carrying out the proposed change and had an option to take refund of the payment which they had made to the developer alongwith interest.

The super area in terms of Annexure-II of the Agreements was to consist of the apartment area, pro-rata share of the common areas of the building and pro-rata share of other common areas outside the building, as defined therein.

In the project subject matter of these complaints, the developer has not sought additional payment for increase in the super area beyond 15%.  Therefore, no prior notice to the allottees was required before increasing the super area and to the extent there has been actual increase in the super area, as defined in Annexure-II of the Agreements, the allottees are required to pay for such an increase.  The allottees had also agreed that not only the super area but even the percentage of the apartment area to the super area could change and they would have no objection to change of the said ratio, though the case of the OP is that the ratio has not changed and the same continues to be 78.5% of the super area.  The developer has filed the affidavit of its Additional Chief Architect Mr. Mukul Gupta who has stated on oath that the final super area based on the approved completion drawings which includes floor plans, unit area plans, elevation and sections of the building was verified and quantified by external experts M/s. GAA Advisory, who also determined the common area and pro-rata share of the apartment in the common areas.  The detailed report of GAA Advisory in respect of all the three phases has been filed with the Convenience Compilation filed by the developer.  It is stated in the affidavit  that the super area so determined by GAA Advisory was rechecked and verified by the School of Planning and Architecture, Delhi and the reports of the said School have been filed with the Convenience Compilation.

Though, the affidavits of the experts from GAA Advisory and the School of Planning and Architect have not been filed, I see no reason to disbelieve their respective report supported by an affidavit of the Architect, when no material to the contrary has been field by the allottees.  Therefore, I have no hesitation in holding that the additional demand on account of increase in the super area, which has been restricted to 15% of the super area stated in the agreements, is justified.  Though, the ratio of the apartment area to the super area could also change, it is stated in the affidavit of Mr. Mukul Gupta that the final percentage of the apartment area to the super area of the apartment is not less than 78.5% and there is no material to the contrary filed by the allottees.   Therefore, I find no justification in the grievance with respect to the demand on account of increase in the super area of the apartments.

With regard to payment of service tax and VAT, since this amount was levied due to an order passed by the Hon’ble High Court of Punjab and Haryana and the said payment was to be made to the State Government, the Complainant was under an obligation to pay the said charges.

According to the Opposite Party, they had completed the construction in time and the Flat in question was ready to hand over possession to the Complainant on payment of due charges.  However, according to the Complainant, the work of fit outs and on finishing of flat was not complete and the Opposite Party is liable to pay the delayed compensation.  We find force in the submission of the Learned Counsel for the Complainant. The Hon’ble Supreme Court in “Ireo Grace Realtech Pvt. Ltd. vs. Abhishek Khanna & Ors.” [Civil Appeal No. 5785 / 2019 & other connected Appeals],  has observed as hereunder :-

“......The Developer is however obligated to pay Delay Compensation for the period of delay which has occurred from 27.11.2018 till the date of offer of possession was made to the allottees….”

Hence, the Complainant is entitled for delay compensation in view of the principle laid down in the aforesaid case.

Respectfully following the various decisions of the Hon’ble Supreme Court of India which are applicable in the present case and for the aforesaid reasons, we are of the considered view that the present Complaint deserves to be partly allowed with the following directions:-

(i)   The Opposite Party Developer shall complete the remaining work of the Flat in question, if any, within a period of six weeks from the date of receipt of a copy of this order and shall hand over the possession of the flat to the Complainant within a period of next two weeks with occupation certification and shall also execute all the required legal documents.

(ii)   The Opposite Party Developer is liable to pay delayed compensation to the Complainant from the committed date of delivery as per agreement till the date of offer of possession to the Complainant @9%/- p.a.

(iii)  The Opposite Party Developer shall work out the balance amount to be paid by the Complainant at the original rate of the Flat after adjusting the delayed compensation to be paid by them. The balance amount, if any, shall be paid by the Complainant to the Opposite Party at the time of taking the possession of the flat in advance.

(iv)  If any amount is payable by the Opposite Party to the Complainant as per above calculation, the same shall be paid to the Complainant within a period of eight weeks from the receipt of a copy of this order failing which the amount shall carry interest @ 12% for the entire period.

(v)  The Opposite Party shall also be liable to pay costs of ₹50,000/- to the Complainant.

(vi) The Complaint is disposed of in above terms. The pending application, if any also stands disposed of.