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Judgment
Subhash Chandra, Member
This complaint dated 21.03.2018 has been filed under section 21 of the Consumer Protection Act, 1986 ( CP Act, 1986 for short) by the complainants against the respondent who is the promoter and developer of a project named ‘Ireo Victory Valley’, Golf Course Extension Road, Sector 67, Gurgaon, alleging deficiency in service and unfair trade practice and claiming refund with other compensation.
Complainants have averred that they booked a flat in the above project on 22.05.2015 by depositing an amount of Rs.32,25,008/- in respect of flat no. VV – D 22 – 03 – 02, 3rd Floor, Tower D 22 (herein after ‘old unit’) with the opposite party and further amounts were paid subsequently. An Apartment Buyers Agreement (in short ‘the ABA’) was executed by the opposite party on 07.08.2015 with the complainants by which time Rs.84,00,443/- had been deposited by them. A further amount of Rs.1,12,563/- was paid on 13.10.2016, thereby making the total payment made to be Rs.87,36,126/-.
On 10th October 2017, the opposite party issued a notice of possession in respect of the said flat which upon inspection the complainants found to be not liveable as the construction of the same was not complete. The complainants’ case is that the opposite party then offered them the option to shift to another apartment in the same project subject to the condition of down payment being made towards another unit with the assurance that the amount paid towards the old unit will be adjusted at the time of taking possession of the alternative unit.
On the basis of this understanding the complainants agreed to book another unit in the same project. They were allotted and agreed to buy flat no. D (04) 202, 2nd floor, Tower no. D (04) (hereinafter ‘new unit’) from the original allottees which was endorsed on 30.12.2017 by the opposite party for a sale consideration of Rs.2,20,00,000/-. Complainants also obtained a loan from the HDFC Bank for an amount of Rs.1,70,00,000/- towards the new unit on 29.07.2017.
It is the case of the complainants that the opposite party failed to adhere to its part of the understanding of adjusting the payment made by the complainants in respect of the old flat towards the new unit and have therefore, been deficient in service and adopted unfair trade practices. The complainants have also relied upon the decision of this Commission in Satish Kumar Malhotra and 49 Ors vs DLF Ltd., and Anr., in CC no.1375 of 2015 decided on 07.06.2016, wherein it has been held that the agreement entered into by the opposite party after collecting substantial amount of money, terms and conditions of which were prepared by the company unilaterally without consulting the buyer, left the allottee with no option but to sign the agreement constitutes abuse of dominance.
The complainants are before this Commission with the following prayer:
a. Direct the opposite party for an immediate 100% refund of the total amount of Rs.87,36,126/- paid by the complainants towards the unit bearing no. VV-D 22-03-02, 3rd floor, D 22 Tower, along with a penal interest of 18% per annum from the date of receipt of payments made to the opposite party;
b. Direct the opposite party to pay compensation of Rs.3,00,000/- to the complainants for mental agony, harassment, discomfort and undue hardships caused to the complainants as a result of the above facts and omissions on the part of the opposite party;
c. Direct the opposite party to pay a sum of Rs.1,50,000/- to the complainants towards litigation costs;
d. Pass any other order and/ or further relief in favour of the complainants as the Hon’ble Commission may deem fit and proper in the fact and circumstances of the case.
The opposite party has contested the claims of the complainants by way of reply and affidavit in evidence. The contentions of the opposite party are that the complainant has no cause of action as the complaint has been filed after delivery of possession of apartment to the complainant. The occupation certificate for the towers has already been received on 25.07.2016 and 28.09.2017. The opposite party contends that the proposed time for handing over possession was to be computed from the date of no objection certificate for the new unit, i.e., 28.10.2013. Therefore, 42 months from this date including the grace period of 180 days would expire on 28.11.2017. The construction of the tower in which the unit was allotted to the complainant, i.e., Tower no. D (04) is complete and the OC has been received on 28.09.2017. The complainant without waiting for completion of grace period sent the termination notice to the OP on 28.11.2017 and subsequently filed this complaint. The OP contends that no jurisdiction lies under CPA to amend/ modify/ re-write the terms of the agreement. OP also states that complainants are not a ‘consumer’ as they invested in the apartment for commercial gains, i.e., to earn income by way of rent or through resale. Another contention of the OP is that as per clause 21.2 of the ABA, the allottee shall have no right to cancel this agreement on any ground whatsoever. Therefore, when the allottees booked the apartment number VV – D 004-02-02, Type 4 BHK Floor 2, Tower D 04, the agreement pertaining to the booking of the previous apartment could not be cancelled. Further, there was no promise of adjusting the amount paid for the old unit towards the new unit.
With regard to the old unit also, the OP’s contention is that there has been no delay in offering the possession of the old unit which was promised within 36 months from the date of the ABA dated 20.09.2010 and that there is no merit in the contention of the complaint. It is contended that from the records filed by the complainants it is clear no such understanding was arrived it. Further no documents have been filed in support of the contention that the new flat was offered in lieu of the originally booked old flat. There was also no offer for adjusting the payment received for the original booked flat/ old flat towards the new flat for this reason. The claims of the complainant that there has been unfair trade practice and deficiency in service is denied as there has not been any malafide intent on the part of the OP to extort money from the complainant.
The opposite party has relied on the judgment of Chief Administrator, PUDA vs Shabnam Virk – (2006) 4 SCC 74.
“14. It is to be noted that the respondent herself had accepted in the undertaking that she accepted the allotment of the house and undertook to abide by all the terms and conditions of the allotment letter. It is not in dispute that in the allotment letter the figure as demanded has been reflected. That being so, the respondent was liable to pay the amount as stipulated in the allotment letter”.
He has also relied on the judgment of ‘Bharti Knitting Co. Vs DHL World-wide Courier - (1996) 4, SCC 704, wherein it has been held by the Hon’ble Supreme Court in the context of the Consumer Protection Act, 1986 that the parties are bound by the terms of the agreement and accordingly this complaint deserves to be dismissed.
We have heard the learned counsel for the complainants and perused the records carefully. None appeared on behalf of the opposite party on 26th May 2022 despite notice; hence, they were proceeded ex parte.
It is the complainants’ case that they were forced to enter into an ABA that was made available to him by the opposite party which was one sided and as Rs.84,00,443/- had already been paid on that date, they were not in a position to contest it. Complainants submit that they have made the full payment of Rs.2,20,00,000/- for the new unit in addition to Rs.87,36,126/- for the old unit and that vide the response dated 22.12.2017 of the opposite party, the amount paid towards the old unit was refused to be adjusted by the OP on the basis of clause 21.2 of the ABA dated 20.09.2010.
Although it is the complainants’ case that the OP had undertaken to adjust the amount received by it towards the old unit booked by the complainants, the records filed by them do not indicate such an arrangement or agreement between the parties. No document indicating this has been filed by the complainants. The OP has denied any such undertaking too. The endorsement dated 30.12.2017 of the OP on the agreement to sell with the original allottees of the new unit in favour of the complainants also does not bear any such undertaking. The learned counsel for the complainants has not brought any documents on record to this effect to our notice.
With regard to the complainants’ averment of deficiency in service due to delay in possession, it is apparent from the records that in respect of the old unit, the period of 36 months and grace period of 04 months was to expire on 28.11.2017 as the date of ABA is 07.08.2015. In so far as the new unit is concerned, the date of the ABA is 20.09.2010 and hence, the date of possession after 36 months and 04 months grace period should be December 2018. Occupation certificate for the towers dated 25.07.2016 and 28.09.2017 were available according to the opposite party. While complainants have filed evidence of payment of Rs.2,20,00,000/- for the new unit, in respect of the old unit it is admittedly Rs.87,36,126/- only. It is this amount that is claimed as promised to be adjusted against payments towards the new unit. However, as noted above, no documentary evidence is available. It is not the complainants’ case that there is deficiency in service in completion of either the old or new units.
In the absence of any documentary proof being provided by the complainants, we do not find any reasons to accept the contention that the OP has been deficient in service or has adopted unfair trade practices. Based upon the documents filed by the complainants there is no evidentiary basis for the claim that there was an agreement between the parties to allot a new apartment in lieu of the old one by adjusting the deposited amount towards the new flat, other than a ‘no objection’ by the OP for the transfer of sale from the original allottees to the complainants.
For these reasons, we do not find any merit in the complaint. Accordingly, we reject the contention of the complainant. The complaint is dismissed as being devoid of merits.