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Judgment
Dr. Inder Jit Singh, Presiding Member
The present Consumer Complaint (CC) has been filed by the Complainants against the opposite parties as detailed above, inter aila praying for :-
(i) to direct the OPs jointly and severally to pay the amount of claim as detailed in the claim statement along with interest till the date of realization at the rate of 9% per annum.
(ii) to restrain the OPs from creating any third party interest in the unit in question.
(iii) to pass such other and further orders as this Commission may deem fit in the circumstances of the case.
Notice was issued to the opposite parties on 22.01.2020 giving them 30 days’ time to file their written statement. Vide order dated 23.07.2021, it was ordered that status quo with respect to the unit in question be maintained, specifically, no third-party interest shall be created.
It is averred/stated in the complaint that :-
i. the complainants booked a Residential Flat on 11.12.2014, admeasuring 162.02 sq. mtrs. carpet area, equivalent to 210.42 sq. mtrs. built-up area, bearing No. 702, situated on the Seventh Floor of Wing ‘A’ in the Complex of the OPs namely, ‘Marvel Ganga Sangria’ together with the exclusive right of user of the open terrace at eye-level having carpet area of 18.24 sq. mtrs. Equivalent to 23.69 sq. mtrs. Build up area appurtenant thereto and along with the exclusive right to use 01 number of car parking space situated under the stilts of the A wing in any Parking Zone identified or earmarked by the OP-1. The total consideration for the said unit was Rs.1,49,66,000/- .
ii. In addition to the consideration amount the complainants were also required to pay the other amounts like, club membership, legal, MSEB, Society maintenance, DG Back Up, VAT, Service Tax and Stamp duty. Thus the complainants were required to pay a total sum of Rs.1,78,13,880/- for the said flat. Agreement was executed between the parties on 09.01.2015. The complainants paid Rs.30,71,106/-. As per Agreement, the possession of the unit was to be handed over by 31.12.2015.
iii. An agreement between the Complainants and the HDFC dated 19.02.2015 was also executed. The HDFC paid total amount of Rs.80,46,278/- to the OP-1. The OPs failed to handover possession or offer any satisfactory explanation for delay or give any firm commitment as to the date of possession.
iv. After much follow up with the OPs, the OPs failed to hand over the possession and the complainants sent a letter to the OPs for refund of the amounts paid by the complainants with interest @9% p.a. as per the agreement dated 09.01.2015. But the OPs failed to refund also. Hence this complaint has been filed.
OP-1 & 4 in their written statement/reply dated 18.03.2020, stated that :-
i. that the complainants did not approach before this Commission with clean hands and as such suppressed the materials and relevant facts only to defame the OPs.
ii. It is also contended by the OPs that OPs have completed more than 40 projects in and around Pune city and lakhs of people have been provided with their dream homes.
iii. It is further contended by the OP-1 that the complainants have not made full and final payment as per the covenants of the agreement entered into. Hence, the complainants are defaulters.
iv. That the facts of the present case show that no cause of action have arisen in favour of the complainants against the OPs. The complainants failed to comply with the terms and conditions of the agreement, therefore, this Commission to dismiss the complaint at threshold.
v. It is also contended by the OP-1 that the construction of the flat in question is complete and OPs are willing to hand over the possession subject to full and final payment and other necessary formalities. The other allegations are denied by the OP-1.
Evidence by way of affidavit was filed by the complainants on 29.10.2021 and affidavit of evidence was filed by the OPs on 04.08.2021 broadly on the lines of averments made in the complaint.
Heard counsel of both the sides.
As per agreement dated 09.01.2015 signed between the Complainants and OP-1 , due date for handing over the possession of the flat in question was 30.12.2015 subject to payment of due amounts by the Complainants. The OPs have failed to deliver the possession till date. There is an inordinate delay of more than six years. Allottees cannot be made to wait for possession indefinitely. Hence, the complainants are entitled to seek refund of the amount paid. As per schedule of payment under the agreement, total consideration of Rs.1,49,66,000/- was to be paid based on construction linked stages.
During the arguments, complainants claimed to have paid to the OP-1 a sum of Rs.1,36,10,196/-, out of which Rs.80,46.278/- was paid by HDFC from where the complainants availed housing loan. Complainants produced a statement showing break-up of these amounts. The counsel for the OPs argued during the hearing that complainants have paid only Rs.1,11,10,196/- as Rs.25,00,000/- has been refunded to the complainants on 19.12.2014, to which the counsel for the complainants responded that Rs.25,00,000/- alleged to have been paid by the OP-1 does not pertain to the present case/flat in question. Complainants further argued that even a perusal of accounts statement prepared by the OPs along with his e-mail dated 23.01.2019 show that the complainants have paid Rs.1,36,10,196/-, which was denied by the OPs. However, in their complaint and written arguments, complainants have stated that they have paid Rs.21,38,135/- to OPs and in addition paid Rs.9,32,960/- towards stamp duty and Registration charges . A perusal of Exhibit B Statement of accounts filed by OPs show that 1st payment of Rs.4,93,503.40 was made by Complainants on 18.12.2014 (which matches with the receipts/details given in the Table below). Further payments for the flat in question were made from 23.12.2014 to 26.05.2015. It is unlikely for any developer to return Rs.25,00,000/- to the Complainants on 19.12.2014, just on the next day of receiving the 1st payment of Rs.4,93,503.40 only on 18.12.2014. Hence, the entry of Rs.25,00,000/- on 19.12.2014 shown as ‘Amount paid to customers In Exhibit B of Evidence of OP-1 does not appear to pertain to the Unit in question.
Complainants have produced relevant receipts/documents of the amounts paid by them directly to the OP-1 as well as amount paid by the HDFC to OP-1 which are summarised as below:-
Amount paid directly by Complainants to OP-1 (as per receipts) :-
Sl.
No.
Receipt Date
Receipt No.
Mode of payment (Cheque No./Date of payment etc.)
Amount
Unit No. to which payment pertains
Purpose of payment/ towards
1.
18.12.2014
201412180022
Ch. No.174113
dt.17.12.2014
4,93,503.40
A-702
Flat
2.
18.12.2014
201412180023
Ch. No.174115
dt.17.12.2014
18,540.00
A-702
Service Tax
3.
18.12.2014
201412180024
Ch. No.174114
dt.17.12.2014
6,496.60
A-702
TDS Flat
4.
23.12.2014
201412230020
Ch. No.174120
dt.22.12.2014
14,173.80
A-702
TDS Flat
5.
23.12.2014
201412230022
Ch. No.174117
dt.22.12.2014
149,660.00
A-702
VAT
6.
23.12.2014
201412230018
Ch. No.174118
dt.22.12.2014
1,403,206.20
A-702
Flat
7.
23.12.2014
201412230019
Ch. No.174119
dt.22.12.2014
52,556.45
A-702
Service Tax
8.
03.03.2015
201503030012
Ch.133279
dt.03.03.2015
242,463.00
A-702
Service Tax
9.
27.03.2015
201503270031
Ch.No.71991
dt.28.03.2015
26,820.00
A-702
Service Tax
10.
27.03.2015
201503270032
Ch.No.71990
dt.28.03.2015
72,622.00
A-702
TDS Flat
11.
27.03.2015
201503270030
Ch.No.071989
dt.28.03.2015
6,50,678.00
A-702
Flat
12.
26.05.2015
201505260014
Ch.No.71994
dt.27.05.2015
53,640.00
A-702
Service Tax
13.
26.05.2015
201505260015
Ch.No.71993
dt.27.05.2015
14,466.00
A-702
TDS Flat
31,98,825.45
Amount paid by HDFC Bank to OP-1 (Disbursement Details)
Sl. No.
Receipt Date
Amount
1
19.02.2015
Rs.65,38,920/-
2
05.08.2015
Rs.15,07,358/-
Total
Rs.80,46.278/-
Grand Total of amount paid to OP-1 Rs.31,98,825.45+Rs.80,46,278/-=Rs.1,12,45,103.45
Details of receipts produced by the complainants, which have been summarised in the table above show a total payment of Rs.31,98,825.45 only, and in addition an amount of Rs.80,46,278/- has been released by Bank to OP-1, making the total payments to OP of Rs.1,12,45,103/-. They are entitled for refund of this amount. As regards payments of Rs.9,32,960/- claimed to have been paid by complainants towards stamp duty and Registration charges, it is not established whether complainants paid this amount to OPs or to Government authorities as no receipts from OPs have been produced for this amount. Similarly, for the two amounts viz Rs.6,82,013.97 and Rs.7,50,119.03 claimed to have been paid by complainants to OPs, and included in their compiled statement produced during the hearing, no receipts from OPs have been produced.
OP-2 being the Director/Key Managing person of OP-1 and OP-3 to OP-5 being the land owners or beneficial holders of the land in question are equally responsible for the timely delivery of possession of the said Unit to the Complainants. Any amount payable by OP-1 to Complainants will have charge on the project land. It is admitted in the Written Statement filed by the OP-3 & OP-4 that it was agreed between the OPs that land owners i.e. OP-3, OP-4 and OP-5 will be receiving 40% of the gross sale proceeds and to keep a track of gross sale proceeds it was mutually agreed amongst OPs that any one of the OP No.3, 4 & 5 will execute to agree to sale of flats. Hence OP-4 had signed the agreement with OP-1 to Complainants. A perusal of Agreement dated 09.01.2015 show that it has been signed by Complainants as well as OP-3 to OP-5 and OP-1 through OP-2. Hence OP-3 to OP-5 are also responsible.
The contention of OPs that this Commission lacks pecuniary jurisdiction is not valid. Under Section 21 of the Act, Commission has the jurisdiction where value of goods and services and compensation, if any, claimed exceeds Rupees one crore. The objection that the Complaint is without any cause of action, is also not accepted. The OPs have failed to deliver the possession of the unit to the complainants till date and therefore, the cause of action is continuing. The contention that complainants are not the Consumers, is also rejected as no such evidence has been adduced by the OPs in this regard. The plea of OPs that delay was due to force majeure circumstances is not valid as even after a gap of more than six years from the committed date given in the Agreement, possession of flat has not been given. There is no documentary evidence to support the contention of the Opposite Parties that the reasons pleaded by them, can be construed as ‘Force Majeure. The contention of the OPs that the parties are bound by the agreement is also not acceptable. Hon’ble Supreme Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raglivan II (2019) CPJ 34 (SC) decided on 02.04.2019 held that “a term of a contract will not be final and binding if it is shown that the flat purchasers had no option to sign on the dotted line, on a contract framed by the builder ......... the incorporation of one sided clause in an agreement constitute an unfair trade practice as per Section 2 (r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling flats by the builder ........., the appellant-builder cannot seek to bind the respondent with such one sided contractual terms.” The plea of OPs that the RERA is the Competent Authority to decide the matter is also not valid. as remedies under the Consumer Protection Act were in addition to the remedies available under special statue”. Hence, this Commission has the jurisdiction to entertain this complaint.
In the instant case, there is an inordinate delay in handing over the possession of flat by the OPs. The complainants cannot be made to wait for an indefinite time and suffer financially. Hence, the complainants in the present circumstances have a legitimate right to claim refund alongwith fair delay compensation/interest from the OPs.
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. OPs shall refund an amount of Rs.1,12,45,103/- (one crore twelve lakh forty five thousand one hundred and three only) (for which complainants have produced receipts issued by OP-1 and documents showing release of amount by bank to OP-1), to the complainants within three months of date of this order alongwith simple interest @ 9% from the date of receipt till the date of actual payment.
ii. As regards amount of Rs.9,32,960/-, Rs.6,82,013/- and Rs.7,50,119/-, OP-1 shall verify its records of receipts and complainants shall produce relevant documents/receipts before OP-1 showing that these amounts have been paid by complainants to OP-1. Refund of any of these amounts is subject to due verification which should be done within one month from the date of this order. If found admissible, such amount is also to be paid along with refund amount mentioned in para (i) above i.e. within three months of this order.
iii. The liability of the OPs shall be joint and several.
iv. The OPs shall also pay litigation cost of Rs.50,000/- to the complainants.
v. As the complainants have taken loan from Bank(s)/other financial institution(s) and if 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 complainants. The complainants would submit the requisite documents from the concerned bank(s)/financial institution(s) to the OPs four weeks from receipt of this order to enable them to issue refund cheques/drafts accordingly.
The pending IAs, if any, also stand disposed off.