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Judgment
Heard Mr. Somvir Singh Deswal, Advocate, for the complainants, Ms. Riya, Advocate, for opposite party-1, Ms. Sougat Sinha, Advocate for opposite party-2 and Ms. Tanya Singh, Advocate for opposite party-3.
Dr. Mahtab Singh and Dr. Suman have filed above complaint for directing the opposite parties to (i) refund the amount of Rs.6451020/- with interest @ 18% per annum; (ii) pay Rs.1052783/- plus Rs.1250242/- deposited with the bank as principal and interest respectively against the housing loan; (iii) pay Rs.799200/- with interest @ 18% per annum; Rs.200000/- as litigation charges; (iv) pay Rs.25 lacs as damages for mental agony and torture suffered by the complainants; and (v) any other order which this Commission deems fit in the facts and circumstances of the case.
The complainants stated that they are husband and wife. On 28.1.2011, the complainants have booked flat No.G-303, 3rd Floor admeasuring 2025 sq. ft. in the project “SKYZ” in Sector 37D, Gurgaon, by depositing booking amount of Rs.612757/-. On 16.11.2011, apartment buyer agreement was executed between the complainants and opposite partis-1 & 2 and the total consideration of the flat was fixed at Rs.7438282/-. As per clause 15 (a) of the agreement, possession of the flat was to be handed over by 31.08.2014. The complainants made timely payments to the opposite parties as per payment schedule and paid a total amount of Rs.6451020/-, but the opposite parties failed to hand over the possession within the stipulated period. The complainants have taken housing loan from the State Bank of India. On 12.01.2016, opposite party-1 sent a letter to the complainants intimating that tentative date of completion of flat was November, 2017. Again on 28.02.2017, opposite party-1 sent an email to the complainants intimating that the construction of the flat allotted to the complainants would be completed by April, 2018. Then the complainants sent a legal notice dated 16.08.2017 to the opposite parties seeking refund of the amount deposited by them with interest @ 18% per annum and also reimburse the amount paid by the complainants to the bank towards housing loan and interest. The opposite parties did not reply to the legal notice. Alleging deficiency in service on the part of opposite parties-1 & 2, the complainants filed the instant consumer complaint on 27.09.2017.
The complaint was contested by the opposite parties-1 & 2 by filing separate written versions. Opposite party-1 filed its written version on 09.02.2018 wherein booking of the flat, agreement between the parties and deposits made by the complainants have been admitted. It was stated that the expected date of delivery of possession was 31.08.2014 with a grace period of 120 days for obtaining the occupation certificate. The time for delivery of possession was to be extended automatically as per clause 15 (b) of the agreement, if the delay was due to non-availability of steel/cement and other building materials or water/electricity supply, strike or lock-out and other reasons beyond the control of the opposite parties like government notifications/orders including earthquake and any other act of God. Timely possession could not be given due to certain hindrances faced by the opposite parties like road blocks, shortage of water, shortage of labour including approvals by various authorities and certain government notifications etc. High Court of Punjab, vide order dated 16.07.2012 imposed ban on use of ground water. The opposite parties also faced severe finance problem due to demonetisation announced by the Government of India on 08.11.2016. Aforesaid reasons for delay were beyond the control of the opposite parties. The price of the property has escalated and the opposite parties have not charged any extra amount for escalation in the price. Therefore, the opposite parties are not liable to pay any delay compensation. Opposite party-1 relied on the judgments of the Supreme Court in Bangalore Development Authority vs. Syndicate Bank (2007) 6 SCC 711 and N. Srinivasa vs. Kuttukaran Machine Tolls Limited (2009) 5 SCC 182 and submitted that the time was not the essence of the flat buyer agreement. OP-1 also relied on the judgments of Supreme Court in Bharathi Knitting Company vs. DHL Worldwide Express Courier Division of Airfreight Ltd., AIR 1996 SC 2508; Secretary, Bhubaneswar Development Aithority vs. Susanta Kumar Mishra (2009) 4 SCC 684; and PUDA (Chief Administrator) and Anr. Vs. Mrs. Shabnam Virk, II (2006) CPJ 1 (SC) and submitted that the liability of the opposite parties is limited to the extent as undertaken in the contract and the Court cannot re-write the contract between the parties.
Opposite party-1 also took preliminary objections relating to the maintainability of the complaint on that ground that complainants have booked the flat for the purpose of investment, therefore, they are not consumers under Section 2 (1) (d) of the Consumer Protection Act, 1986. Further, as per clause 37 of the agreement, any dispute between the parties can be resolved by the arbitrator. The complaint also involves disputed questions of fact, which can be decided by a Civil Court. The National Commission does not have the pecuniary jurisdiction to decide the instant complaint has deposited Rs.6451020/- with the opposite parties and they have inflated the claim to bring the dispute with the pecuniary jurisdiction of this Commission. Therefore, the consumer complaint before this Commission is not maintainable and is liable to be dismissed.
Opposite party-2 has filed its written statement on 25.01.2018 reiterating the grounds taken by opposite party-1 in its reply and no new ground has been taken in its written statement.
The complainants filed Rejoinder Reply, Affidavit of Evidence of Dr. Mahtab Singh. Opposite party-1 filed Affidavit of Evidence of Amit Yadav. Opposite party-2 has filed Affidavit of Evidence of Saurabh Rana. Both parties have also filed the affidavits of admission/denial of the documents as well as written arguments.
We have considered the arguments of the counsel for the parties and examined the record. It is admitted by the opposite parties that the complainants have deposited an amount of Rs.6451020/- out of total consideration of Rs.7438282/-. It is also admitted that possession was to be handed over by 31.12.2014 including grace period of 120 days. The opposite parties pleaded that the reasons for delay in handing over the possession were beyond their control (force majeure). On 27.03.2023, counsel for opposite party-1 filed the written arguments wherein it is stated that the possession of the flat would be handed over within a year. More than nine years have elapsed and the opposite parties have not been able to handover the possession despite receiving an amount of Rs.6451020/-. Therefore, the complainants are entitled for refund of the amount deposited by them. Supreme Court in Bangalore Development Authority Vs. Syndicate Bank, (2007) 6 SCC 711, Fortune Infrastructure Vs. Trevor D’ Limba, (2018) 5 SCC 442, Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, (2019) 5 SCC 725, Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, 2019 (6) SCALE 462, held that the buyer cannot be made to wait for indefinite period for possession. Thus, the complainants are entitled for refund of the amount with interest. The opposite parties have taken the ground that the complainants have booked the flat for commercial purpose but then have not adduced any evidence in support of this argument. As far as question of arbitration is concerned, Supreme Court in M/s Emaar MGF Land Limited vs. Aftab Singh – I (2019) CPJ 5 (SC), laid down that Arbitration clause in the Agreement does not bar the jurisdiction of the Consumer Fora to entertain the Complaint. Regarding the issue of complicated question of fact, firstly there is no complicated of fact involved in this case. Moreover, this Commission is competent to decide the complicated questions of fact in view of the judgment of Supreme Court in CCI Chambers Coop. HSG. Society Ltd. v. Development Credit Bank Ltd., Appeal (Civil) 7228 of 2001. As far as question of pecuniary jurisdiction is concerned, Supreme Court in Sujir Keshav Nayak vs. Sujit Ganesh Nayak (1992) 1 SCC 731 held that in the suit filed before the Court of unlimited pecuniary jurisdiction, valuation disclosed by the plaintiff has to be normally accepted unless the valuation of the suit was arbitrary.
ORDER
In view of the aforesaid discussion, the complaint is partly allowed with cost of Rs.50000/-. Opposite parties-1 & 2 are directed to refund an amount of Rs.6451020/- with interest @ 9% from the date of respective deposits till realization, within 2 months from this order.