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Judgment
Binoy Kumar, Member
The present Consumer Complaint has been filed under Section 21 read with Section 12(a) of the Consumer Protection Act, 1986 (for short “the Act”) by Mr. Gautam Saha & Anr. (hereinafter referred to as the Complainants) against the Opposite Party M/s Anant Raj Industries Limited (hereinafter referred to as the Opposite Party) seeking refund of the entire amount collected by the Opposite Party along with penal Interest @18% per annum.
The brief facts leading upto the present Complaint are that the Complainants booked the Apartment (hereinafter referred to as the Unit) in the Project of the Opposite Party “MACEO” situated at Sector-91, Gurugram Haryana. The Complainants paid Rs.7,00,000/- as the booking amount on 05.08.2011 as per ‘Time Linked/Construction Linked Payment Plan’ and thereafter they were allotted Unit No. R-1003, 10th Floor, Tower-R, area admeasuring 2491 Sq. Ft.
The Opposite Party i.e. M/s Anant Raj Industries Limited and the Complainants executed an Apartment Buyer’s Agreement dated 19.09.2012 (hereinafter referred to as the Agreement) wherein the total consideration of the Unit was mentioned as Rs.80,09,735/- inclusive of various charges like BSP, PLC, EDC, IDC, IAC, Club Charges, Service Tax. As per clause 7 of the Agreement, the Unit was to be delivered within 36 (thirty-six) months from the date of signing of the Agreement, i.e. by 19.09.2015 and by 19.03.2016 when the grace period of 6(six) months is included. The relevant portion of Clause 7.1 reads as under:
“ …The Developer based on its present plans and estimates and subject to all just exceptions, proposes to complete construction/ development of the Said Project and handover the possession of the Said Apartment to the Allottee(s) within a period of 36 (thirty six) months from date of execution of this agreement unless there shall be any delay or failure due to force majeure. The Allottee(s) understand and agrees that the Developer shall be entitled to a grace period of 180 (one hundred and eighty) days after the aforesaid 36 (thirty six) months….”
The Complainants submitted that, they have paid substantial amount of Rs.64,37,276/- (more than 80% of Total Consideration) to the Opposite Party and as per Clause 7.1 of the original Builder Buyer Agreement the possession was to be delivered before September, 2015, but the Opposite Party has failed to deliver the flat to the Complainants.
The Complainants averred that this ‘case is not just of a simple/ordinary delay but one of a kind where there is no possibility of getting possession in near future which as caused immense financial burden on the Complainants.
Thus, aggrieved by the delay in possession of their Flat, the Complainants have filed this Complaint with the following prayer to:
a) Direct the opposite Party for an immediate 100% refund of the total amount paid by the Complainant(s) along with a penal interest of 18% per annum from the date of receipt of payments made to the Opposite party for the Unit in the Project “MACEO” at Sector 91, Gurgaon, Haryana.
b) Direct the Opposite Party to pay compensation of INR. 5,00,000/- (Rupees Five Lakh Only) to the Complainant(s) for mental agony, harassment, discomfort and undue hardships caused to the Complainant(s) as a result of the above acts and omission on the part of the Opposite Party;
c) Direct the Opposite Party to pay a sum of INR. 1,00,000/- (Rupees One Lakh Only) to the Complainant(s) towards litigation costs;
d) That any other further relief in favour of the Complainant(s) as the Hon’ble Commission may deem fir and proper in the facts and circumstances of the case.
The Opposite Party ( M/s. Anant Raj Industries Limited) has filed its written version and resisted the Complaint by taking objections as under:
a) The Construction of the Project “MACEO” is nearly complete and Occupation Certificate for the ‘Tower-R’ has already been applied on 23.12.2019 and the same is pending approval from DTCP, Haryana.
b) The interest @ 18% p.a. sought by the Complainant is excessive, unfounded and unsustainable. As per Clause 9.2 of the Agreement stated that “..the Company, in its sole discretion may at any time abandon the Said Project… the Company shall refund the actual amount paid by the Allotee(s) with an interest 9(nine) % thereon for the period such money has been lying with the Company”.
c) As per Clause 35 of the Agreement, if any dispute, claims and/or differences arises it shall be referred to a sole arbitrator appointed by Opposite Party under Arbitration Clause.
d) The Opposite Party is diligently fulfilling its part of the obligation and has regularly intimated the Complainant herein about the construction progress of the projects on various dates in 2016-2017.
e) The delay in handing over the possession was caused due to unforeseen circumstances beyond the control of the Opposite Party and the same is covered under Clause 19 i.e. Force Majeure.
In view of the aforesaid facts and circumstances the Opposite Party has prayed this Commission to:
a) Dismiss the complaint filed by the Complainants in terms of preliminary objections and submissions to the present complaint.
b) Dismiss the complaint filed by the Complainants as Occupancy Certificate for Tower R has already been applied and the same is pending approval with DTCP, Haryana and possession in the same will be offered in near future.
c) Dismiss the complaint on the ground that the Complainants have the option to switch to another flat/unit in another tower in which possession has been offered;
d) Dismiss the complaint filed by the Complainants as they are bound by the terms and conditions of the Apartment Buyer’s Agreement that they have signed and the remedy shall be sought within the said agreement.
e) Pass any such other Order in favour of the Opposite Party as this Hon’ble Commission deems fit and in the facts and circumstances of the present case.
A Rejoinder was filed by the Complainants against the written version of the Opposite Party in which the Complainants reaffirm the contents of the Complaint filed by them. Further, the Complainants stated that, the Opposite Party has failed to provide any reason or force majeure conditions responsible for the inordinate delay of over 4 years. The Opposite Party, as per Clause 7.1 of the Agreement was obliged to deliver the possession of the Unit by September, 2015 and till now, the Opposite Party has failed to complete the construction of the project “MACEO”.
We have heard the learned Counsel for both the Parties and have gone through the Complaint and material available on record.
We would like to deal with the objections of the Opposite Party. The objection that this Commission has no jurisdiction and any dispute between the parties shall be referred to Arbitration is devoid of merit. Attention is drawn to the Order of Hon’ble Supreme Court in M/s Imperia Structures Ltd. v. Anil Patni and Another (2020) 10 SCC 783 decided on 02.11.2020 which held that “remedies under the Consumer Protection Act were in addition to the remedies available under special statutes”, hence this Commission is also competent authority, also, as per section 3 of the act “the provisions of this Act shall be in addition to and not in derogation of any other law for the time being in force”.
Regarding the objection that the dispute shall be referred to Arbitration or Civil court, attention is drawn to the Order of this Commission in Aftab Singh Vs. Emaar MGF Land Limited & Anr., Consumer Case No. 701 of 2015, vide order dated 13.07.2017. which was also upheld by Hon’ble Supreme court, wherein it was held that:
“Arbitration Clause in the Buyer’s Agreement does not bar the jurisdiction of the Consumer Fora.”
The Objection that delay was caused due to delay in getting approvals from competent authority and due to Force Majeure circumstances is devoid of merit. CC 379 of 2013 Sivarama Sarma Jonnalagadda & Anr vs. M/s Maruthi Corporation Limited & Anr decided on 21.09.2021 wherein it was held that:
“the act of the Opposite Party in relying on force majeure clause while retaining the amounts deposited by the Complainant, is not on only an act of deficiency of service but also amounts to unfair trade practice.”
Having considered the objections of the Opposite Party, we will now deal with the main issue at hand. We find that there is no doubt to the fact that, there has been unreasonable delay in construction and giving possession as per the Agreement. The Complainants made substantial payment to the Opposite Party with an expectation of getting timely possession of the Unit. In the written version of the Opposite Party, it is clearly admitted that the Construction of the Project is nearly completed and Occupation Certificate has been already applied on 23.12.2019. But the Occupation Certificate till date has not been obtained which clearly means that the construction is not complete in all respect. The Opposite Party failed to construct and deliver the Unit to the Complainants even after delay of about 4 years from the promised date of possession for which the Opposite Party has not given any valid reason to justify the delay. The Complainants cannot wait for an indefinite time as they have invested heavily their hard earned money with the intention to get delivery of the Unit on time. Since, the Agreement is a valid legal document, as per its terms and conditions, possession should have been given in 3 years (36 months) i.e. by September, 2015 or March, 2016 (after adding 6 months of grace period). The Complainants booked the Unit 9 years back and the Opposite Party has not obtained Occupancy Certificate till date. The Complainants have all his right to claim refund along with a reasonable compensation for the unreasonable delay. Even today in the year 2022, possession has not been given and the Project is not complete. There are a number of Case Laws wherein the Hon’ble Supreme Court has decided favourably on the right of the buyers for getting refund of their money in case of undue and unreasonable delay by the Developer in giving possession in terms of the Agreement.
In case of Emmar MGF Land Ltd. & Ors. Vs. Amit Puri- {(II 2015 CPJ 568 (NC)},decided on 30.03.2015, this Commission has held as under :
“After the promised date of delivery, it is the discretion of the Complainant whether to accept the offer of possession, if any, or to seek refund of the amounts paid by him with some reasonable compensation and it is well within his right to seek for refund of the principal amount with interest and compensation.”
We also find it a fit case to place reliance on the judgment of the Hon’ble Supreme Court in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, II (2019) CPJ 29 SC, decided on
25.03.2019 in which the Hon’ble Apex Court has observed as hereunder :
“.....It would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession. By 2016, nearly seven years had elapsed from the date of the agreement. Even according to the developer, the completion certificate was received on 29 March 2016. This was nearly seven years after the extended date for the handing over of possession prescribed by the agreement. A buyer can be expected to wait for possession for a reasonable period. A period of seven years is beyond what is reasonable. Hence, it would have been manifestly unfair to non-suit the buyer merely on the basis of the first prayer in the reliefs sought before the SCDRC. There was in any event a prayer for refund. In the circumstances, we are of the view that the orders passed by SCDRC and by the NCDRC for refund of moneys were justified.”
On the issue of importance of obtaining Occupancy Certificate which the Opposite Party has not obtained till date. Attention is drawn to the recent Order of Hon’ble Supreme Court in Samruddhi Co-Operative Housing Society Ltd. Vs. Mumbai Mahalaxmi Construction Pvt. Ltd. in Civil Appeal 4000 of 2019, decided on 11th of January, 2022, wherein, it was held as under:-
“In the present case, the respondent was responsible for transferring the title to the flats to the society along with the occupancy certificate. The failure of the respondent to obtain the occupation certificate is a deficiency in service for which the respondent is liable. Thus, the members of the appellant society are well within their rights as ‘consumers’ to pray for compensation as a recompense for the consequent liability (such as payment of higher taxes and water charges by the owners) arising from the lack of an occupancy certificate”.
The Hon’ble Supreme Court in the recent case of Ireo Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna & Anr. in Civil Appeal No.5785 of 2019 decided on 11.1.2021 has held as under:-“The Developer made an alternate offer of allotment of apartments in Phase 1 of the Project. The allottees are however not bound to accept because of the inordinate delay in completing the construction of the Towers where units were allotted to them. The Occupation Certificate is not available even as on date, which clearly amounts to deficiency of service. The allottees cannot be made to wait indefinitely for possession of the apartments allotted to them nor can they be bound to take the apartments in Phase 1 of the Project. The allottees have submitted that they have taken loans, and are paying high rates of interest to the tune of 7.9% etc. to the Banks.
Consequently, we hold that the allottees in Chart B are entitled to refund of the entire amount deposited by them”.
In view of the discussion above, the Consumer Complaint is partly allowed. The Opposite Party is directed to refund the entire amount paid by the Complainants along with delay compensation @ 9% per annum from the respective dates of deposits till realization within a period of six weeks of this Order. Any delay beyond six weeks, will attract an interest rate of 12% p.a. for the same period.
All pending applications, if any stand disposed of.