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Judgment
Subhash Chandra, Presiding Member
This consumer complaint under section 21 read with section 12(c) of the Consumer Protection Act, 1986 (in short, the ‘Act’) alleges unfair trade practice and deficiency in service in delay in handing over possession of the flats booked by the complainants in a project promoted and executed by the opposite party within the promised time and seeks refund of the amount deposited with compensation and other costs.
The complainants are before this Commission jointly seeking redressal of a common grievance in respect of flats booked by them in Tower T07 in “Paras Seasons”, Sector 168, Gautam Budh Nagar, Uttar Pradesh which have not been handed over within the stipulated period of time despite the payment of approximately 90-95% of the sale consideration to the opposite party. The complainants contend that they booked flats in the above project based upon attractive advertisements promising various amenities and facilities, ranging from 650 to 2100 sq ft super area as per details below:
S no.
Name of complainant
Unit no.
Date of issue of Apartment buyer Agreement
Date of possession as per apartment buyer agreement
Cost of property (as per first buyer)
Amount paid till date
Loan amount
Rate of interest on loan amount
Monthly rent paid
1.
Ganesh Dutt Pandey & Radhy Devi
UN 0008
12.05.11
11.11.13
38,72,053
35,94,110/
20,55,810/-
11%
13,000/
2.
Vivek Kumar Saini and Geeta Saini
T07/0407
25.02.11
25.08.13
35,77,667
33,05,628/
26,00,000/
9.75%
NA
3.
Ajey Shiledar and Sangeeta Ajey Shiledar
UN 0505
24.10.11
24.03.13
47,53,125
45,67,151/
39,40,073/
11%
42,000/
4.
Keloth Sunil Kumar
UN 0701
09.08.12
09.02.15
63,14,894
58,77,644/
23,37,074/
NA
5.
Surendra Pratap and Anita Pratap
UN T07/0003
03.08.11
03.02.14
40,04,513
36,83,776/
25,00,000/
10.5%
NA
6.
Sunil Kumar Mohal
UN T07/0202
18.01.11
18.06.14
54,40,173
47,30,577/
25,00,000/
38,000/
7.
Vishal Chhabra
T07/1107
18.04.11
18.09.13
34,77,934
31,86,810/
8.
Kapil Awasthi and Pooja Awasthi
UN 0902
18.04.11
07.10.13
49,90,841
45,40,755/
35,81,653/
10.30%
22,000/
9.
Ajay Verma
UN T07/0905
23.08.12
23.02.15
50,95,884
46,29,304/
NA
NA
NA
10.
Deepa Ramanathan and N S Ramanathan
T07/0502
21.07.11
21.01.14
54,58,613
50,04,299/
29,65,439/`
11.25%
NA
11.
Zafar Qayyume and Sameena
T07/0808
20.03.12
20.09.14
36,97,796
33,25,524/
NA
NA
NA
Possession was promised within 30 months as per the Apartment Buyers Agreement (ABA) dated 18.04.2011 from the date of the ABA; however, possession had not been offered even after more than 6 years after collecting instalments which amounted to deficiency in service and unfair trade practice. Possession letters with illegal and malicious conditions were issued on 22.11.2016 stipulating that inspection of the flats would be permissible only after clearance of all dues was done. Tower 07 was promised to be a Y shaped building with 6 flats per floor whereas the constructed tower is rectangular with 8 flats per floor. This change is without any prior information or consent of the allottees as required under section 4(4) of the UP Apartment (Promotion of Construction, Ownership and Maintenance) Act, 2010. The quality of construction is stated to be poor and sewage and water connections are still alleged to be pending. The delay is stated to be inordinate and the terms of the ABA one-sided and onerous, which amounts to unfair trade practice which the complainants had no option but to accept since considerable payments had already been made. Reliance is placed on Satish Kumar Pandey Vs. Unitech Ltd., CC No. 427 of 2014 dated 08.06.2015 as regards delay due to force majeure reasons as claimed by the opposite party and on Satish Kumar Malhotra & Anr. Vs. DLF Ltd. & Anr. in CC No. 1374 of 2015 dated 07.06.2016 regarding the one-sided terms of an agreement constituting unfair trade practice. Complainants allege that apart from their money being locked up and causing financial loss, they were burdened with increased government charges/tax due to the delay. Hence the complainants are before this Commission with the prayer to direct the opposite parties jointly or severally to:
(i) hand over actual possession of the apartments to all buyers in Tower T07 of Paras Seasons complete in all respects as per the ABA for the consideration mentioned therein with all facilities and standards and to execute all required documents within 3 months without demanding any unwarranted charges;
(ii) pay interest @ 18% per annum on the amount deposited by all the consumers/buyers in “Paras Seasons” ABAs till the date of actual possession date of delivery;
(iii) pay to all consumers/buyers Rs 6,000/- per day in case of failure to provide possession within the stipulated time as directed by this Commission;
(iii) refund the wrongly charged taxes including but not limited to Service Tax and other Charges along with interest @ 12% from the date of receipt;
(iv) pay compensation of Rs 5,00,000/- to all consumers/buyers, individually, for mental agony and harassment;
(v) pay Rs 2,00,000/- to all consumers/buyers, individually, towards litigation costs;
(vi) pass any such order as deemed fit and proper.
Upon notice, the opposite party resisted the complaint by way of a reply and denied all averments and raised preliminary objections that (i) that the present complaint was not maintainable and merits dismissal as the complainants want to bring the complaint within the pecuniary jurisdiction of this Commission; (ii) the opposite party has no role to play in the project; (iii) the project in question has a total number of 1054 units and there are almost 500 families already residing in various towers of the 134 residential units; (iv) of 23 allottees have already taken possession of their respective flats and also registered the flats; (v) the occupation certificate has been obtained on 07.04.2016 and project completed with all the amenities and facilities like water, electricity etc.; (vi) opposite party no.1 had offered different payment plans to the buyers such as down payment plan, construction linked payment plan, flexi payment plan etc., and the buyers opted for different plans as per their requirements; (viii) opposite party no.1 offered possession to all the complainants vide letter dated 22.11.2016 and requested to pay the balance dues within 30 days followed by reminders and pre-cancellation letters requesting payment of overdues/ outstanding amounts; (viii) as per the BBA, complainants were also to pay holding and maintenance charges from the date of offer of possession; (ix) opposite party no.1 cannot be held liable for the act of the defaulting complainants; (x) several complainants are joint allottees who have been arrayed as parties just to bolster the number of complainants in the present complaint; (xi) the complainants have admitted vide this Commission’s order dated 18.05.2018 that Tower IV is the same as Tower VII; (xii) there is no basis to state that the the opposite party demanded amounts which are not included in the BBA; (xiii) complainants have not deposited the amounts as per the agreed payment plan.
Learned counsel for the opposite party relied upon the judgment of this Commission in the case of Manas Developers vs Madhur Arjun Bhabal – RP 1563 of 2011 decided on 09.03.2015 which held that a builder cannot be held liable for delayed possession since the builder is not obligated to give possession without getting the entire payment with interest.
He has also relied upon the judgment of the Hon’ble Supreme Court in the case of Supertech vs Rajni Goyal 2018 (14) SCALE 187 decided on 23.10.2018 held that the consumer cannot be allowed to reap the benefits of his own wrong by not taking possession when the same has been offered by the builder and the computation of interest also closes on the said date. He has also relied on the judgment of this Commission in the case of Satish Kumar Pandey vs Unitech Ltd., which held that complainants who are subsequent purchasers are not entitled to any relief or compensation.
Learned counsel for the opposite party submitted that the complainants herein are investors who had invested in the project solely for investment and commercial purpose and hence, they do not fall in the definition of consumers in terms of section 2 (d) of the Consumer Protection Act, 1986. Learned counsel for the opposite party further stated that the complainants have not taken possession of their flats till date despite admitting the fact that the offer of possession was sent to by the opposite party on 22.11.2016. Learned counsel further submits that no common grievance has been alleged by the complainants since the occupation certificate for the project was received in April 2016 and 23 families are residing in the tower. Learned counsel for the opposite party stated that the complainants have not availed the services of the opposite parties for commercial purpose. Learned counsel for the opposite party no.1 states that opposite party no.2 was not a signatory to the BBA. It is also stated that complainants have made incorrect submissions that the possession would be given within 30 months of initial allotment or that the project was not complete till date. Opposite party stated that the present complaint is infructuous since possession of the units has already been offered to the complainant. It is therefore, prayed that the complaint be dismissed with cost.
Parties led their evidence and filed rejoinder, affidavit, and evidence as well as short synopsis of arguments. I have heard the learned counsel for the parties and carefully considered the material on record.
During oral submissions, Ld. Counsel for the complainant pressed for refund of deposited amounts with compensation and did not press for possession of the flats or for payment of Rs 6,000/- per day of delay in handing over of possession or Rs 5,00,000/- towards mental agony and harassment and refund of statutory taxes paid.
The preliminary objections of the opposite party have been considered. The contention that the complainant is not a ‘consumer’ is a statement that has not been supported by any evidence to establish that the complainant is engaged in any real estate business. As per this Commission’s orders in Kavita Ahuja Vs. Shipra Estates, I (2016) CPJ 31 and Sanjay Rastogi Vs. BPTP Limited & Anr., CC No. 3580 of 2017 dated 18.06.2020, the onus is on the opposite party to show that the complainants were in the business of buying and selling flats and therefore not ‘consumers’ who purchased the flat for a commercial purpose and this onus has not been discharged. This argument cannot be sustained. Insofar as pecuniary jurisdiction is concerned, the settled law as held by this Commission in Ambrish Kumar Shukla and 21 Ors. vs Ferrous Infrastructure Pvt. Ltd., I 2017 CPJ 1 (NC) and Renu Singh vs Experion Developers Pvt. Ltd., CC no.1703 of 2018 is that the principle for determining the pecuniary jurisdiction is the total consideration paid by the complainant or persons who have joined the complaint in a joint complaint and other damages claimed to determine such jurisdiction. In view of this position of law the contention of the opposite party regarding pecuniary jurisdiction does not sustain. The opposite party has not brought any document on record that he has remitted the compensation of Rs 7/- per sq ft per month; the breakup of the particulars of charges payable filed by way of affidavit on 06.07.2023 mentions delayed compensation (payable) to be Rs 8,88,787/-. It is apparent that this amount has not been paid. As regards the issue of jurisdiction and the need to approach a civil court, the Hon’ble Supreme Court has held in M/s Imperia Structures Ltd. Vs. Anil Patni & Anr., (2020) 10 SCC 783 that the provisions of the Consumer Act are in addition to and not in derogation of any other law in force. As for the cause of action, the Hon’ble Supreme Court laid down in Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 on 09.05.2012 that failure to deliver possession constitutes a recurrent and continuing cause of action and therefore this contention of the opposite party is not valid.
The opposite party has sought shelter under the force majeure clause citing delay due to the Hon’ble High Court’s order restraining builders from utilising ground water for construction activities. This issue has been inter alia considered in this Commission’s orders in Anil Kumar Jain & Anr. Vs. M/s Nexgen Infracon Private Limited in Consumer Complaint No. 1605 of 2018 dated 23.12.2019 wherein it was held that in the absence of any proof to substantiate the claims/reliance on force majeure conditions was not justifiable. The opposite party has failed to substantiate his contention with any specific evidence on record as to how the factors cited as force majeure events impacted the instant project and whether any steps to mitigate or overcome them were taken. Regarding opposite party’s reliance on force majeure events to justify delay in completing the construction of the project, as per Manoj Kawatra and Others Vs Pioneer Urban Land and Infrastructure Ltd., in CC no.1442 of 2018 decided on 01.11.2021, this Commission held that a developer cannot take shelter under the force majeure clause unless it is able to show that the event was unforeseen and unexpected. Opposite party’s contention that it could not undertake construction is not substantiated. If builders were prevented from extracting underground water, they were expected to arrange water from alternative sources to fulfil their contractual obligation to the flat Buyers. It is not as if no construction took place during the period that the interim order remained in force. Therefore, if the Opposite Party so wanted, it could have arranged water for construction purpose from alternative sources. There is no evidence brought on record that the Opposite Party could not arrange water required for timely completion of the project, hence this constitutes a force majeure event. In the absence of such evidence, mere reliance on such an assertion is not sustainable and cannot be accepted.
The Hon’ble Supreme Court has explicitly laid down in Geetu Gidwani Verma & Anr. Vs. Pioneer Urban Land & Infrastructure Ltd. (2018) SCC Online NCDRC 1164 dated 23.10.2018 and Govindan Raghavan (supra) that allottees being forced to agree to onerous conditions in agreements after receiving substantial payment constituted an unfair trade practice and that an agreement that is one-sided and imposes conditions that are biased in favour of the builder/opposite party is an unfair trade practice. The FBA in the instant case is a classic example of such a document.
The possession of the flat was to be handed over as per the agreement dated 18.04.2011. In view of the foregoing discussion, the contention of the opposite party regarding the delay not amounting to deficiency is not sustainable. The Hon’ble Supreme Court, in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, Civil Appeal No. 3182 of 2019 decided on 25.03.2019, laid down that
“It would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession”.
In the present case, possession was offered on dates ranging from 2011 to 2015, i.e., from 8 to 12 years. Considering that the amount paid is substantial, seeking compensation for delay is not unwarranted.
In the facts and circumstances of this case, for the aforesaid reasons, this complaint is allowed partially and disposed of with the following directions:
(i) opposite parties shall jointly or severally refund the amount deposited by the complainants with simple interest @ 9% from the respective date of deposit within 8 weeks of this order, failing which the applicable rate of interest shall be 12% p.a.;
(ii) opposite parties shall also pay each complainant litigation cost of Rs 25,000/- within 8 weeks.
All pending IAs shall stand disposed of with this order.