Harbani Batra vs Athena Infrastructure Ltd

Subhash Chandra, Presiding Member

This is a complaint under section 2 (1)(d) of the Consumer Protection Act, 1986 (in short, the ‘Act’) alleging deficiency in services in respect of ‘non-delivery’ of a flat booked by the Complainant with the Opposite party in the project ‘Indiabulls Enigma-Gurgaon’, promoted and developed by it.

The facts, in brief according to the Complainant, are that she had booked a residential flat on 06.09.2011 with the Opposite Party and was allotted apartment No.B-113, 11th Floor, “India Bulls Enigma”, Sector 110, Gurgaon 112001 for a sale consideration of Rs.1,76,85,000/-. Despite having paid a sum of Rs.1,88,98,252/- as on date in various installments, the Opposite Party had not made any offer of possession of the said apartment to her. As per clause 21 of the Apartment Buyer Agreement (ABA) dated 29.05.2012, the apartment was promised to be completed in a period of 36 months with six months of grace period. The Complainant states that even after an expiry of this period on 01.07.2015 there is neither any offer of possession by the Opposite Party nor any sign of the completion of the said project. As she has been waiting for nearly eight years, for possession, she now does not seek possession and is before this Commission with the following prayer.

(a) That this Hon’ble Court may be pleased to direct the Opposite Party to pay a sum of Rs.3,55,10,089/- (Three Crores Fifty Five Lakhs Ten Thousand and Eighty Nine Only) to the Complainant along with interest @ 18 % p.a., both pendent lite and future, in the light of the facts and circumstances explained.

(b) Any other order(s) which this Hon’ble Court may deem fit and proper in the facts and circumstances of the present case may also be passed in the favour of the Complainant and against the Opposite Party.

The complaint was resisted by way of written statement by the opposite Party. While denying the averments of the Complainant, the Opposite Party submitted that the complainant has failed to prove any deficiency in service by the Opposite Party. It is stated that the complainant is a defaulter and failed to pay outstanding dues of Rs.39,90,147/- in three installments. Accordingly, a termination notice had to be issued. Since the complainant is a defaulter she is estopped from alleging delay in construction of flat and seeking compensation. As per clause 22 of the ABA, the opposite party is only required to pay as penalty a sum of Rs.5 per sq. ft.  per month for the period of delay as compensation. Therefore, the complainant is not entitled to the relief of compensation as claimed. It is also submitted that the period of construction of three years with 6 months grace period was not a ‘commitment’ of date but only to be an endeavor’ on part of the opposite party.

The complaint is stated to be not maintainable, in view of the arbitration clause vide clause 49 of the ABA. It is also contended that the complainant is a resident of Pusa Road, Rajinder Nagar, New Delhi and has booked the flat for commercial purpose and, therefore, the complaint deserves to be dismissed in limine. The Opposite party states that it is not liable to pay any interest to the Complainant in view of clauses 11, 14 and 15 of the agreement. For these reasons, it is contended that the complaint be dismissed with exemplary costs.

Heard the learned Counsel for both the parties and perused the material on record carefully.

The Complainant has alleged deficiency in service under the provisions of the Act by the Respondent/Opposite Party in connection with the construction of the Apartment. The Complainant paid installments at different points of time as per the demand of the Opposite Party. On 23.01.2015, Opposite Party issued a letter to the Complainant acknowledging the receipt of Rs.1,78,98,252/- towards the sale consideration. In March 2015, Complainant issued another cheque of Rs. 10,00,000/- on the demand of Opposite Party making the payment towards sale consideration Rs.1,88,98,252/-. The Complainant made timely regular payments and obtained receipts from the Opposite Party. The only amount left to be paid by the Complainant was Rs.14,19,250/- which was to be paid at the time of delivery of possession of the flat. As per Clause 21 of the ABA, the Opposite Party was bound to complete the construction of the Apartment in question within a period of three years, with six months grace period from the date of execution of the ABA i.e. from 29.05.2012. The delay caused by the Opposite Party has led the Complainant to seek refund of the amounts deposited by her. It is stated that there is no construction at the site in question even as on date and the building is far from being complete and the Complainant is not in a position to be provided possession of her Apartment. Clause 22 of the ABA postulates that if the Opposite Party does not deliver the possession of the flat in question within a period of three years with a grace period of six months, the Opposite Party has to pay as penalty a sum of Rs. 5/- per square feet (of super area) per month for the period of delay. The Agreement entered into between the parties has to be read as a whole and not in piecemeal. It is also averred that the terms of the ABA drafted by the Opposite Party is to shield a one sided contract to prevent an unsuspecting and innocent consumer from agitating his/her grievances and claiming compensation/damages which is indicative of the malafide intention of the Opposite Party.

From the above, it is evident that there is a delay in the execution of the project for which occupation certificate has been received by the opposite party only on 12.10.2021. Admittedly, there is a delay of nearly six years from 01.07.2015 to 12.10.2021, although an offer of possession has been made as on date to the Complainant. The Hon’ble Supreme Court in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, II (2019) CPJ 29 SC had laid down that:

“…..it would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession… A buyer can be expected to wait for a reasonable period. A period of seven years is beyond what is reasonable”.

It has also held in Pioneer Urban land and Infrastructure Ltd. Vs. Govindan Raghavan, (2019) 5 SCC 725 in Civil Appeal no. 12238 of 2018 decided on 02.04.2019 that an allottee as a consumer is entitled to seek refund of the money paid by him to the opposite party/builder in case of inordinate delay on the part of the opposite party to hand over possession.

The argument of the opposite party that the complainant was a defaulter has been considered. It has been held by this Commission in Ankur Goswami Vs. Supertech Ltd., & Anr. 2017 SCC Online NCDRC 1240 that it is not open for the opposite party to contend that the complainants are defaulters who should be denied the benefit of seeking refund when the opposite party had not declared them defaulters at that stage. Having not cancelled the allotment on account of delay in making payment, the opposite party cannot now deny refund of the amount paid by the Complainant on account of this delay.

In Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor CA No.6044 of 2019 dated 07.04.2022, it has been held by the Hon’ble Supreme Court that the interest payable on the amount deposited has to be restitutionary and compensatory from the date of deposit. The complainant is, therefore, entitled to the relief of interest.

In view of the above, the complaint is liable to succeed. In the facts and circumstances of the case, the complaint is found to have merit and is accordingly allowed with the following directions:-

i. Opposite party shall refund the entire amount of Rs. 1,88,98,252 received from the complainant along with compensation as  interest @ 9 % per annum from the respective dates of deposits till realization;

ii. This order shall be complied within eight weeks.

iii. In case of delay in payment, the rate of interest shall be 12% per annum simple interest from the date of respective deposits till realization.

iv. Opposite Party shall also pay the complainant litigation cost of Rs.25,000/-.

All pending IAs, if any, stands disposed of with this order.