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Judgment
Subhash Chandra, J
This is a complaint under Section 21 (a) (1) of the Consumer Protection Act, 1986 (in short, ‘the Act’) seeking refund with compensation of the amount deposited in respect of flat booked with the opposite party in its project “Wish Town”, Jaypee Greens, Noida promoted and developed by them alleging deficiency in service and unfair trade practices.
In brief, the facts of the case are that the complainant had booked a residential flat with the opposite party in Kasablanca Tower 3, Jaypee Greens Wish Town, Noida and was allotted Unit Ref. No. KSB0032002 on 28.03.2013 based on his application dated 20.08.2013 for a sale consideration of Rs.3,33,40,450/-. A provisional allotment letter dated 17.04.2013 was issued in respect of the above residential unit with a super area of 329.8030 sq. mtr., indicating that the said apartment would be delivered within a period of 45 months from the date of allotment. The complainant has submitted that she has made a total payment of Rs.1,37,26,146/- till 25.02.2014 by way of instalments. However, it is averred by the complainant that no substantive work was visible at the project site and the opposite party, who was expected to hand over the possession by January, 2017 reckoned from the date of allotment on 17.04.2013, has been deficient in service. It is also stated that the opposite party had announced on its website that the project Kasablanca was scheduled to be completed by March, 2021 which is contrary to the assured date of completion. Since approximately 1/3rd of the sale consideration had been paid and no offer of possession had been made, the complainant is before us with the following prayers:
(1) Direct the opposite party (s) to forthwith pay/refund to the complainant the sum of Rs.2,59,05,862.42 (Two Crores Fifty Nine Lakhs, Five thousand, Eight Hundred and Sixty Two Rupees and Forty Two Paisa’s only) in total out of which Rs.1,37,26,146 (One Crore Thirty Seven Lakhs, Twenty Six Thousand and One Hundred Forty Six only) admittedly duly received by the opposite party from the complainant and the interest @ 24% per annum w.e.f. the date of making of the payments upto the filing of this complaint which comes to Rs.1,21,79,716.42 (One Crore, Twenty One Lakhs, Seventy Nine Thousand and Seven Hundred Sixteen Rupees and Forty Two Paisa’s only). Further all the future and pedentilite interest until the payment is finally made to the complainant shall be calculated @ 24% per annum.
(2) Compensation in the sum of Rs.50,000/- as punitive damages on account of deficiency in service, causing immense loss, mental agony, harassment, tension, torture and inconvenience caused to the complainant and causing complete dislocation and disruption of the plans of the complainant by the opposite party (s).
(3) Cost of the proceedings; and
(4) Any other and/or further relief (s) may also be granted in favour of the complainant and against the opposite party.
The complaint has been contested by the opposite party by way of a reply wherein it has been contended that the complaint is devoid of merits as there is no deficiency or unfair trade practices by it. It is contended that the complainant has no locus to complain as she is presently residing in Noida and it is not contended that this is a rented house. It is also contended that the complainant has defaulted in making payments and that she is not a “consumer” under the Act having invested in this apartment for speculative purposes. It is further contended that the complainant had booked the apartment in January, 2013 after approximately one year from its launch and was therefore aware of the slow construction of the project. In view of the Arbitration Clause in the application form signed by the complainant, it is contended that the complainant needs to agitate the matter in the appropriate Civil Court and not before this Commission. It is also contended that there was no commitment of completing the project by January, 2017 since Clause 7.1 and 7.2 of the terms and conditions only provide that the company shall make its “best efforts”. Lastly, it is contended that the project was delayed on account of force majeure reasons which were beyond the control of the opposite party as there were serious law and order problems in various land parcels due to agitation by farmers, orders of the National Greens Tribunal (NGT) dated 11.01.2013 prohibiting utilisation of underground water for construction activities and order of the NGT in application No. 158 of 2013 dated 14.08.2013 in Amit Kumar Vs. Union of India & Ors., which imposed a ban on construction within the radius of 10 kms. from the Okhla Bird Sanctuary. Accordingly it is contended that there has been no negligence on the part of the opposite party and delay is attributable to the orders of the NGT which has placed impediments in progress of the construction.
Parties led their evidence and filed their written submissions. We have heard learned counsels for both the sides and considered the records carefully.
Complainant avers that the project is not yet complete and no Occupancy Certificate / Completion Certificate has been obtained for the project. No offer of possession has also been made. It is further averred that while payments are being demanded, no commensurate progress in construction is visible.
Learned counsel for the opposite party on the other hand states that complaint is devoid of merits and as per standard terms and conditions, the opposite party is entitled to extension of time for construction of the project in the event of force majeure events and the opposite party would not be held liable for any cost accruing due to such extension of time.
The preliminary contention of the opposite party is that this Commission lacks jurisdiction since there is an Arbitration Clause no. 10.9 in the agreed Standard Terms & Conditions. However this argument cannot be considered in view of judgment of the Hon’ble Supreme Court in the case of M/s Emaar MGF Land Limited Vs. Aftab Singh - I (2019) CPJ 5 (SC) wherein it held that an arbitration clause in the Agreement does not bar the jurisdiction of the consumer fora to entertain the complaint. Hence, the objection of the opposite party that the clause of arbitration bars this Commission from entertaining the complaint, is unsustainable.
Another preliminary objection taken by the opposite party is that the complainant is not a “consumer” as per Section 2 (1) (d) of the Act and that the apartment in question has been booked for speculative purposes. The onus of proving that the complainant is not a consumer lies upon the opposite party as held by this Commission in the case of Kavita Ahuja Vs. Shipra Estates I (2016) CPJ 31, which the opposite party has failed to do by way of any documentary evidence. Hence this contention cannot be accepted.
On merits it has been argued that the opposite party is not responsible for any deficiency in service since the delay is entirely attributable to the reasons beyond his control. It has sought shelter under the force majeure clause citing the delay on account of agitations by farmers and delays on account of orders of the NGT. It is urged that in view of the serious law and order problems due to the agitation by farmers, overall economic slow-down, orders of the National Green Tribunal (NGT) dated 11.01.2013, restraining all builders from utilising ground waters for construction activities and orders of the NGT dated 14.08.2013 in MA no.970 of 2013 Amit Kumar vs Union of India and Ors., restraining construction within 10 kms of the Okhla Bird Sanctuary, the project was delayed due to reasons not attributable to the opposite party. These issues have been extensively 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 of demonetisation and NGT adversely causing delay in completion of the project and impacting the date of handing over of flats, such reliance on force majeure conditions was not justifiable. The opposite party has not brought on record any evidence how these events impacted the project specifically. Therefore, these grounds are not sustainable.
Admittedly there has been a delay of more than 45 months as on the date of filing of the complaint. In Pioneer Urban Land and Infrastructure Ltd., vs Govindan Raghavan and Connected matter in Civil Appeal no. 12238 of 2018 decided on 02.04.2019 and in Civil Appeal no. 3182 of 2019 - Kolkata West International City Pvt., Ltd. Vs. Devasis Rudra – II (2019) CPJ 29 SC, decided on 25.03.2019 it was held by the Hon’ble Supreme 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”. This was also reiterated in Fortune Infrastructure & Anr. Vs. Trevor D’Lima & Ors. - 2018 (5) SCC 442 where the Hon’ble Apex Court held that “a person cannot be made to wait indefinitely for possession of the flat allotted and is entitled to refund along with compensation”.
The Hon’ble Supreme Court in the case of Wg Cdr Arifur Rahman Khan & Ors. Vs. DLF Southern Homes Pvt. Ltd. (2020) 16 SCC 512 has held that that one sided agreements amount to unfair trade practice under section 2(i) (r) of the Act and the developer cannot compel apartment buyers to be bound by one sided contractual terms and further stated that refund with compensation in the form of interest is justified.
As regards the issue of default in payments by the complainant as alleged by the opposite party it is seen that no action to cancel the allotment was done. In the case of Ankur Goswami vs Supertech Ltd., and Ors., (2017), Online NCDC 1240 (CC no.930 of 2016 decided on 13.07.2017) this Commission has held that not having taken action to cancel the allotment of the complainant on grounds of default on payments, it is now not open to the opposite party to contend thus. This argument can therefore not be accepted.
In view of the fact that even as on date the opposite party does not have either a completion certificate or an occupation certificate on the basis of which an offer of possession has been made to the complainant, it is evident that there is deficiency in service. As held in Pioneer Urban Land and Infrastructure Ltd. (supra) once there is delay beyond the committed date for handing over possession of the apartment, it is the discretion of the allottee to either accept possession or to seek refund.
In view of the catena of judgments of Hon’ble Supreme Court and this Commission where it has been held that when the developer / builder commits to a specific date by which possession is assured, the resiling from this commitment due to delay which is inordinate, is an unfair trade practice and amounts to deficiency in service. In the instant case the delay in possession of the apartment is not minor but is inordinate and is still uncertain since neither a completion certificate nor an offer of possession is on the horizon. In light of this, the averment of the complainant regarding delay and deficiency in service is liable to be accepted.
We therefore find merit in the complaint. Accordingly, the complaint is allowed and disposed off with the following directions:
The opposite party shall refund the entire amount deposited by the complainant along with interest @ 6% from the respective date of receipt till the date of payment along with litigation cost of Rs.50,000/-;
This order shall be complied within eight weeks failing which penal interest @ 9% simple interest shall be paid till the date of payment.