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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 Rs.79,38,265/- along with compensation of 18% per annum calculated from the date of first instalment;
Or
ii. Refund the amount after deducting the minimum forfeiture amount of Rs.10,00,000/- and after adjusting the compensation for the delay in possession payable by the OP-1, and
iii. Pay compensation of Rs.10,00,000/- for mental agony, harassment, discomfort and undue hardship caused; and
iv. Pay a sum of Rs.1,00,000/- as a whole towards litigation cost.
Notice was issued to the OP(s). 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:
i. The complainant booked a 3BHK Apartment in the project of the OPs, namely, ‘Primanti’ situated at Sector 72, Gurgaon, Haryana.
ii. On 03.05.2014, the OP-1 issued an allotment letter regarding the booking of the Unit T5 2204 measuring 2560 sq.ft. on 21st Floor in the T-5 with two basement car parking. Apartment Buyer’s Agreement was executed between the parties on 14.06.2014. As per agreement, the OPs promised to deliver the possession of the Unit on or before October, 2017. Total consideration for the unit was Rs.3,20,09,059/-, out of which the complainant has paid Rs.79,38,265/- till 01.08.2014. The OPs failed to deliver the possession within the stipulated time. The complainant sent a legal notice on 24.01.2018 seeking refund of the amount paid by him for the said Unit.
iii. On 22.03.2018, the OP-1 sent a letter calling for delivery of possession, which specifically mentioned that the remaining payment could be made by May, 2018 and facilities of common areas will commence from June 2018. Complainant wanted a full refund of money paid by him. However, OPs refused to refund the full amount. The complainant in the interest of amicable resolving the issue, agreed to a minimal forfeiture of Rs.10,00,000/-. The OP-1 vide email dated 07.04.2018, agreed to refund the paid amount with minimal forfeiture. While the above decision was taken amongst the parties, the OP-1 sent a reply dated 24.04.2018 to the legal notice raising false and frivolous grounds for the delay. The complainant kept on sending the reminders to the OP-1 for refund of the amount.
iv. On 29.05.2018, the OP-1 intimated the complainant that full deductions would be made and the e-mail dated 07.04.2018 was not approved. The OPs had made false promises like a roof top restaurant, which they have not constructed to save their cost. OPs also misrepresented a curved internal private road starting from the T-intersection of the southern peripheral road, but in reality it is a straight road which joins a revenue road (public road), thereby reducing privacy and creating a risk and threat to the security.
v. The OPs have committed gross deficiency in services and unfair trade practice, hence the Complainant is before this Commission.
The OP-1 in their written statement/reply stated that:
i. The averments by the complainant should be treated as a specific denial by OP-1, the complaint is liable to be dismissed being misconceived and devoid of merits.
ii. The complaint is a malafide attempt to wriggle out of contractual obligations. The clause 6 (b) of the Application for Booking allows the complainant to cancel the allotment of the Apartment and seek refund of money (without interest) paid by the complainant subject to forfeiture of the following:-
a. Application Money or the actual amount paid whichever is higher subject to a maximum of 15% of the Sales Price.
b. Interest due in case of default, calculated till date of receipt of cancellation intimation;
c. All taxes paid/payable.
From the above clause it is evident that complainant was entitled to cancel the allotment of the Apartment subject to certain reasonable monetary deductions.
iii. Since allotment of an apartment until its handover to the customer, a builder/developer of a project incurs a lot of expenses in developing the Project. Provisions like the one stated above are inserted to protect the developer of a project against arbitrary and unjust cancellations of the customers.
iv. As per Agreement dated 14.06.2014, the OP-1 was endeavour to give possession of the Apartment to the Complainant on or before October 2017 with a grace period of 6 months. The complainant approached the OP-1 in November 2015 seeking early delivery of possession of the Apartment, which was almost impossible for the OP-1 to provide an early possession of the Apartment. However, the OP engaged with the Complainant to work out a possible solution. Since Phase 2 of the Project , housing the Complainant’s Apartment was going to take some time to complete, the OP-1 vide email dated 27.11.2015, gave the complainant an option to upgrade to Villa/Penthouse in Phase 1 of the project. The complainant vide email dated 28.11.2015 expressed his inability to take OP-1’s offer on account of budget crunch. Another option was provided within Phase 2 of the Project vide email dated 15.12.2015. Vide email dated 16th December 2015, the complainant expressed his reservations on the same as well. However since the options given by OP-1 were not fitting into the Complainant’s requirement, the OP-1 was left with no option but to close the complainant’s request for early possession and the complainant was duly informed vide email dated 16th December 2015. Even after closure of complainant’s request and on his insistence, the OP further engaged with complainant to provide a solution for his request for shifting of the Apartment to another unit. Various site visits were arranged by OP towards this.
v. On 15th January 2016 the complainant sent an email requesting unilateral cancellation of the Apartment. The OP informed vide email dated 22.01.2016 that cancellation of the Apartment would entail deductions to the tune of 15% of the Sale Price as per the terms of the Application Form/ABA. Upon complainant’s request, the OP-1 shared the calculation of deductions that would be applicable on cancellation of the Apartment and informed that the refund via cheque would be ready in 10 days.
vi. After realizing that such cancellation would entail deductions, the complainant decided not to cancel the allotment of the Apartment. However, despite certain force majeure circumstances, which were completely beyond the control of OP-1, the construction was completed within the grace period which was agreed under ABA on account of force majeure period. The delay alongwith the reasons were timely communicated to complainant and confirmed that the possession of the Apartment to the complainant would be offered around May 2018.
vii. The complainant sent a legal notice on 24th January 2018 to cancel the allotment and sought refund on the ground that there was a delay in delivery of possession of the Apartment. The malafide intent and motive of the complainant is evident from a bare perusal of the said legal notice which alleges inordinate delay on the part of OP-1whereas the total delay in delivery of possession from the date mentioned in the ABA was at maximum 3 months only, and in any event covered under the contractually prescribed extension which the OP-1 is entitled to.
viii. OP obtained the Occupancy Certificate (OC) on 09.03.2018. Accordingly, the OP-1 vide its letter dated 19th March 2018 intimated the complainant about the same and offered delivery of possession of the Apartment on 19.03.2018. The complainant ignored the offer of possession letter and instead continued to pressurize the OP-1 to give into his illegal demands.
ix. OP-1 again in good faith agreed to refund the amounts paid by the Complainant, subject to course to contractually prescribed deductions and also duly responded to the legal notice sent by the complainant. OP-1 vide its email dated 29.05.2018 informed the complainant that his decision to cancel the allotment would entail deduction in terms of the ABA/Application Form and hence requested to reconsider his decision.
x. The Apartment was allotted to the Complainant under a special possession linked 30:70 scheme, which is a purely developer sponsored subvention scheme. The OP completed the construction of the Apartment without any payments from the complainant beyond initial 30% payments and financed the balance 70% using its own resources. If at this time the complainant is allowed to exit from the Project, without showing any reasonable cause, it would amount to rescinding the contract for sale and purchase of the Apartment. The completion of the Apartment was carried out by the OP on good faith that on its completion, the complainant will take possession of the Apartment on payment of the Sale Price. The complainant cannot be allowed to unilaterally rescind from his contractual obligations basis his whims and fancies. The complainant has failed to show any unfair trade practice on the part of OP-1, except for delay in delivery of possession. The OP was required to deliver the possession on or before October 2017, beyond which OP would be liable to compensate the Complainant for delay at the rate of Rs.5 per square feet for the entire period of delay. Clause 4.4 of the ABA provided that any delay in delivery of possession on account of force majeure conditions will entitle the OP an extension of 6 months to effect the possession of the Apartment. No compensation was required to be paid by OP-1 for this extended period of 6 months.
xi. There were force majeure conditions were due to injunction on the usage of underground water for construction activity, installation of sewage treatment plant, demobilization of labour from site, shortage of material like sand etc., heavy rainfall and NGT Ban on construction etc.
xii. The complainant is liable to compensate the OP-1 for delay in taking the possession of the Apartment.
xiii. It is contended by the OP that complainant be directed to take the possession of the Apartment upon payment of all the sums as per the offer of possession letter dated 19.03.2018 and also to pay the holding charges to the tune of Rs.88,793/- for failure to take possession of the Apartment.
None appeared on behalf of OP-2 to 4 and have not filed the written statement.
Heard counsel for the Complainant and for OP-1. 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.
The contention that complainant is not a consumer as he has purchased the unit for speculative purposes is rejected as no such evidence has been adduced by the OP(s) in this regard. It has been observed by this Commission in various cases (Kavita Ahuja Vs Shipra Estates Ltd, CC 137 of 2010, decided on 12.02.2015, Santosh Johri Vs M/s Unitech Ltd, CC 429 of 2014 and connected Cases, decided on 08.06.2015, Aloke Anand Vs M/s Ireo Grace Pvt Ltd & Others, CC no 1277 of 2017 decided on 01.11.2021) that purchase of a house can only be for a commercial purpose if the purchaser is engaged in the business of purchasing and selling houses or plots on a regular basis, solely with a view to make profit by way of sale of such houses, if the house is purchased purely as an investment and the purchaser is not undertaking the trading of houses on regular basis, then it would be difficult to say that he had purchased it for commercial purpose.
As per terms & conditions of the agreement, the committed date of possession was October 2017. Further, there was a provision for extension of six months in case of force majeure event. The OP obtained OC on 09.03.2018 and offered possession on 19.03.2018. OP-1 had contended that delay in possession had occasioned due to force majeure reasons, beyond OP-1’s control, including but not limited to (i) injunction on the usage of underground water for construction activity by Hon’ble Punjab & Haryana High Court (ii) installation of sewage treatment plant and irregular water supplies (iii) demobilisation of labour from the project site (iv) shortage of sand for construction and heavy rainfall (v) ban on construction ordered by Hon’ble NGT etc. All delays cannot be attributed to the builders/developers, hence it is not a case of deficiency in service. OP-1 argued that date of handing over possession stood extended by 6 months on account of force majeure events. OP-1 offered possession within the time period stipulated in terms of agreement vide letter dated 19.03.2018.
In the present case, even if OP-1’s contentions of delay on account of force majeure reasons are not accepted, delay is only 4½ months, which is not unreasonable. A six months grace period from the committed date of possession is a reasonable period which can be granted to a builder/developer of such having projects. Hence, in our opinion, in the present case, complainant is obligated to take possessions, which was offered with a valid OC. If he does not wish to take possession but wants refund of his money, OP-1 will be entitled to make reasonable deductions towards forfeiture of earnest money. It is to be noted that in this case, complainant made his first request for cancellation on 15.01.2016 itself, i.e. much before the committed date of possession, even if counted without the grace period of six months, and was informed by OP-1 that it would entail deductions of 15% of sale price as per terms of the ABA. Subsequently, complainant decided not to cancel. Again vide legal notice dated 24.01.2018, complainant cancelled the allotment and sought refund on the ground of delay in delivery of possession. Considering that OP-1 obtained OC on 09.03.2018, as on date of legal notice, the project was complete, which is evident from the fact that application for OC was made by OP-1 on 22.01.2018. As per ABA, (Clause 3.6) 15% of sale price constitutes earnest money to ensure fulfilment by the purchaser (complainant) of the terms & conditions. In case purchaser delays the due payments or breaches any terms & conditions of the agreement, OP-1 is entitled to cancel the booking. In such an eventuality, OP-1 will refund the money paid by complainant without interest and subject to forfeiture of application money or the actual amount paid, whichever is higher, subject to a maximum of 15% of sale price, interest due upon default and all taxes paid/payable. As per clause 3.1 of the ABA, the sale price is Rs.2,94,27,200/-. As per clause 14.1, if purchaser fails to perform or observe the stipulation, OP-1 has the right to terminate the agreement subject to forfeiture as mentioned in clause 3.6. However, it is to be noted that in the present case, OP-1 has not cancelled the booking or terminated the agreement. It is the complainant who has cancelled and sought refund. Hence, strictly speaking, clause 3.6 deductions cannot be applied. However, considering that OP-1 has fulfilled his obligations of offering possession within the committed timeframe (with grace period), if complainant wishes to take refund, it can be granted by OP-1 only after earnest money forfeiture, which is reasonable. Complainant himself, realizing this, has made an alternative prayer of refund after minimal forfeiture of Rs.10.00 lakhs. From the pleadings, it seems that mutual agreement between the parties for refund with minimal deduction of Rs.10.00 lakh did not materialise. Considering that the complainant is still not interested in possession and wants only refund, interest of justice will be met for both sides if OP-1 is directed to refund the principal amount paid by the complainant after making deduction of Rs.15.00 lakh only and refund the balance with simple interest @9% p.a. from the date of refund.
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 OP(s) shall refund the entire principal amount of Rs.79,38,265/- (Rs. seventy nine lakh thirty eight thousand two hundred and sixty five only) after deducting an amount of Rs.15.00 lakh towards forfeiture of earnest money and refund the balance of Rs.64,38,265/- to the complainant, alongwith simple interest @ 9% per annum from the date of each payment till the date of refund. The amount refundable mentioned in this para is subject to verification of actual amount paid by the complainant based on receipts etc.
(ii) Parties to bear their respective litigation costs.
(iii) The liability of the OP(s) shall be joint as well as several.
(iv) The payment in terms of this order shall be paid within three months from today.
(v) 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(s) four weeks from receipt of this order to enable them to issue refund cheques/drafts accordingly.
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.
Primanti,
Sector-72,
Gurgaon
2
Apartment no
T5-2204
3
Size (Built up/Covered/Super Area)
2560 sq.ft.
4
Date of application
23.04.2014
5
Date of allotment
03.05.2014
6
Date of signing Agreement (ABA)
14.06.2014
7
Committed date of possession as per Agreement (with six months’ Grace period)
April, 2018
8
D/o Obtaining OC by the OP
09.03.2018
9
D/o Offering Possession
19.03.2018
10
Total Consideration as per agreement
Rs.3,08,73,600/-
11
Amount Paid
Rs.79,38,265/-
12
D/o Filing CC in NCDRC
20.07.2018
13
D/o Issue of Notice to OP(s)
01.08.2018
14
D/o Filing Reply/Written Statement by OP1
12.12.2018
15
D/o filing Rejoinder by the Complainant(s)
13.05.2019
16
D/o Filing Evidence by way of Affidavit by the Complainant(s)
13.05.2019
17
D/o Filing Evidence by way of Affidavit by the OP-1
27.06.2019
18
D/o filing Written Synopsis by the Complainant(s)
01.07.2022
19
D/o filing Written Synopsis by the OP-1
08.06.2022