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Judgment
R.K. Agrawal, J., President
The present Consumer Complaint has been filed under Section 21(a)(i) of the Consumer Protection Act, 1986 (for short "the Act") by the Complainants, against the Opposite Party No.1 M/s. Ireo Grace Realtech Private Ltd. (hereinafter referred to as the 'Developer'), Opposite Party No. 2 Precision Realtors Private Limited, Opposite Party No.3 Blueplanet Infradevelopers Pvt. Ltd., Opposite Party No. 4 Madeira Conbuild Private Limited and Opposite Party No. 5 M/s. Global Estate, for refunding of money as the Opposite Party Developer failed to hand-over the possession of the Flat booked by them in the Project launched by the Developer in the name and style of "The Corridor ", within stipulated period.
According to the Complainants, the facts of the case are that in response to the Applications invited by the Opposite Party No. 1 Developer for allotment of flats in their upcoming Project, "The Corridors" (hereinafter referred to as the 'Project') located at Golf Course Extension Road, Sector-67-A, Tehsil & District Gurgaon, Haryana, the Complainants booked a residential flat in the Project by paying earnest money of 15,57,738/- vide receipt No. 13210781 dated 14.03.2013.The Complainants were allotted Unit No. CD-A4-08-803 having super area of 1726.91 sq. ft. on 07.08.2013.Apartment Buyer's Agreement (hereinafter referred as the Agreement) was sent by the Opposite Party Developer for getting the signatures of the Complainant.It is the say of the Complainants that the Apartment was originally booked @ 8750/- per sq. ft. but in the Agreement, the rate of booking was mentioned as 9200/- per sq. ft.The Agreement was one-sided and upon resistance, the Complainants were threatened by the Developer that the Unit shall be cancelled and whole money paid shall also be forfeited and the Complainants were forced to sign upon the dotted lines on the Agreement.Agreement was executed between the Parties on 01.04.2014.As per Clause 13.3. of the Agreement, the possession of the Unit was to be handed over within a period of 42 months from the date of approval of the building plans.Clause 13.3 of the Agreement reads as under:
" Subject to Force Majeure, as defined herein and further subject to the allottee having complied with all its obligations under the terms and conditions of this Agreement and not having defaulted under any provision(s) of this Agreement including but not limited to the timely payment of all dues and charges including the total Sale Consideration, registration charges, stamp duty and other charges and also subject to the Allottee having complied with all formalities or documentation as prescribed by the Company, the Company proposes to offer the possession of the said Apartment to the Allottee within a period of 42 (Forty Two) months from the date of approval of the Building Plans and/or fulfillment of the preconditions imposed thereunder ("Commitment period"). The Allottee further agrees and understands that the Company shall additionally be entitled to a period of 180 days ("Grace period"), after the expiry of the said Commitment Period to allow for unforeseen delays beyond the reasonable control of the Company. "
The Complainants made payment of 1,70,62,024.52/- (Rupees One Crore Seventy Lacs Sixty Two Thousand Twenty Four & Paisa Fifty Two only) on different dates upto 21.07.2018 against a total sale consideration of 1,73,08,261.56 (Rupees One Crore Seventy Three Lacs Eight Thousand Two Hundred Sixty One and Paisa Fifty Six only) as per demand of the Opposite Party Developer, despite that the Opposite Party No. 1 Developer could not complete the construction work at the Project within stipulated period and failed to deliver the possession of the Unit.The Complainants had lost trust in the Opposite Party Developer.Alleging deficiency in service and Unfair Trade Practice on the part of the Opposite Party Developer, the Complainants have filed the present Complaint with following prayer:-
"a. Directing the Opposite Parties to pay/refund a sum of 1,70,62,024.52/- (Rupees One Crore Seventy Lacs Sixty Two Thousand Twenty Four & Paisa Fifty Two only ), paid by the Complainant towards the Unit No. CD-A4-08-803 (8 th Floor) Tower A-4 in Group Housing Colony situated at Sector-67A, in the revenue Estate of Village Dhumsapur and Maidwas, Tehsil & District Gurgaon, Haryana known by the Project Name as "THE CORRIDORS';
b. Direct the Opposite Parties to pay interest @ 20% per annum on the total amount paid by the complainants from its respective date/s till realisation;
c. Further to Award the cost and litigation expenses & Compensation for harassment & mental agony to the tune of 5,00,000/- ( Five lacs only) to the Complainants ;
d. Pass such other or further order as this Hon'ble Commission may deem fit and proper in the interest of justice and in favour of complainants."
Upon notice, the Complaint was resisted by the Opposite Parties by filing Written Statement. The Opposite Parties took the similar defence as were taken by them in several other Consumer Complaints, i.e., CC No.3873 / 2017 entitled "Abhishek Khanna & Ors. Vs. Ireo Grace Realtech Pvt. Ltd.", CC No.1382 / 2018 entitled "Promila Kashyap vs. Ireo Grace Realtech Pvt. Ltd.", CC No. 525 / 2017 entitled "Ritu Hasija & Anr. Vs. Ireo Grace Realtech Pvt. Ltd." and CC No.696 / 2017 entitled "Amit Arora vs. Ireo Grace Realtech Pvt. Ltd." which were filed by several other Allottees of the same project 'The Corridor'.
I have heard Mr. Deepak Kumar Khushalani, learned Counsel appearing on behalf of the Complainants, Mr. Sameer Chaudhary, learned Counsel appearing on behalf of the Opposite Party Nos. 1 to 4 and have given a thoughtful consideration to the arguments advanced by them.
All the contentions raised by the Opposite Party Developer in respect of the Project 'The Corridor' have been dealt with in detail by this Commission in the cases, i.e., CC No.3873 / 2017 entitled "Abhishek Khanna & Ors. Vs. Ireo Grace Realtech Pvt. Ltd." CC No.1382 / 2018 entitled "Promila Kashyap vs. Ireo Grace Realtech Pvt. Ltd.", CC No. 525 / 2017 entitled "Ritu Hasija & Anr. Vs. Ireo Grace Realtech Pvt. Ltd." and CC No.696 / 2017 entitled "Amit Arora vs. Ireo Grace Realtech Pvt. Ltd."
The Opposite Party Developer challenged the Orders passed by this Commission in these cases by way of filing Civil Appeals before the Hon'ble Supreme Court.
The Hon'ble Supreme Court dealt with all the contentions raised by the Opposite Party Developer and disposed off these Civil Appeals vide their Judgment dated 11.01.2021 in the case " Ireo Grace Realtech Pvt. Ltd. vs. Abhishek Khanna & Ors. " [Civil Appeal No. 5785 / 2019 & other connected Appeals] .The Hon'ble Supreme Court had held that 27.11.2018 would be the relevant date for offer of possession by observing as under:-
"On 27.11.2014, the Director, Haryana Fire Service granted approval to the Fire Fighting Scheme subject to the conditions mentioned therein. The computation of the period for handing over possession would be computed from this date. The Commitment Period of 42 months plus the Grace Period of 6 months from 27.11.2014, would be 27.11.2018, as being the relevant date for offer of possession. "
Hon'ble Supreme Court also held that the Agreement is one-sided and the Opposite Party Developer cannot compel the Apartment Buyer to be bound by the one-sided contractual terms contained in the Apartment Buyer's Agreement by observing as under :-
" We are of the view that the incorporation of such one-sided and unreasonable clauses in the Apartment Buyer's Agreement constitutes an unfair trade practice under Section 2(1)(r) of the Consumer Protection Act. Even under the 1986 Act, the powers of the consumer fora were in no manner constrained to declare a contractual term as unfair or one-sided as an incident of the power to discontinue unfair or restrictive trade practices. An unfair contract has been defined under the 2019 Act, and powers have been conferred on the State Consumer Fora and the National Commission to declare contractual terms which are unfair, as null and void. This is a statutory recognition of a power which was implicit under the 1986 Act.
In view of the above, we hold that the Developer cannot compel the apartment buyers to be bound by the one-sided contractual terms contained in the Apartment Buyer's Agreement "
Hon'ble Supreme Court on the issue "Whether the Apartment Buyers are entitled to terminate the Agreement, or refund of the amount deposited with Delay Compensation" held as under:-
" In the present case, the allottees before this Court in the present batch of appeals, can be categorised into two categories:-
i) Apartment Buyers whose allotments fall in Phase 1 of the project comprised in Towers A6 to A10, B1 to B4, and C3 to C7, where the Developer has been granted occupation certificate, and offer of possession has been made, are enlisted in Chart A;
ii) Apartment Buyers whose allotments fall in Phase 2 of the project, where the allotments are in Towers A1 to A5, B5 to B8, C8 to C11, where the Occupation Certificate has not been granted so far, are set out in Chart B below.
... ... ... . .
Chart A allottees (i) We are of the view that allottees at Serial Nos. 1 and 2 in Chart A are obligated to take possession of the apartments, since the construction was completed, and possession offered on 28.06.2019, after the issuance of Occupation Certificate on 31.05.2019. The Developer is however obligated to pay Delay Compensation for the period of delay which has occurred from 27.11.2018 till the date of offer of possession was made to the allottees.
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Chart B allottees
(i) Insofar as the allottees in Chart B are concerned, they have paid part consideration, in most cases up to the 4th instalment till 2017, when they found that there was no progress being made in respect of the Towers in which the apartments had been allotted to them. It is an admitted position that Occupation Certificate for Towers A1, A2, A3, B7, C9 and C11, in which the allotments have been made for this category has not been issued by the Municipal Corporation The apartments have not been ready for allotment even as on 30.06.2020, as per the date fixed before the RERA Authority.
(ii) The allottees submitted that they were facing great hardship since they had obtained loans from Banks for purchasing these apartments, and were paying high rates of interest. In 2017, when they realised that there was no construction activity in progress, they were constrained to file consumer complaints before the National Commission, and then discontinued payment of further instalments.
(iii) The Developer made an alternate offer of allotment of apartments in Phase 1 of the project. The allottees are however not bound to accept the same 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.
(iv) In so far as award of compensation by payment of Interest is concerned, clause 13.4 of the Apartment Buyer's Agreement provides that the Developer shall be liable to pay the allottee compensation calculated @ 7.5 per sq. ft. of the Super Area for every month of delay, after the end of the Grace Period. The compensation will be payable only for a period of 12 months.
The Apartment Buyers in their Complaint filed before the National Commission made a prayer for refund of the amount deposited alongwith Interest @ 20% p.a. compounding quarterly till its realisation. The Apartment Buyers, in their submissions have stated that they have obtained home loans on which Interest @ 7.90% p.a. is being paid, even as on date. We have considered the rival submissions made by both the parties. The Delay Compensation specified in the Apartment Buyer's Agreement of 7.5 per sq. ft. which translates to 0.9% to 1% p.a. on the amount deposited by the Apartment Buyer cannot be accepted as being adequate compensation for the delay in the construction of the project. At the same time, we cannot accept the claim of the Apartment Buyers for payment of compound interest @ 20% p.a., which has no nexus with the commercial realities of the prevailing market.
We have also taken into consideration that in Subodh Pawar v. IREO Grace, this Court recorded the statement of the Counsel for the Developer that the amount would be refunded with Interest @ 10% p.a. A similar order was passed in the case of IREO v. Surendra Arora. However, the Order in these cases were passed prior to the out-break of the pandemic.
We are cognizant of the prevailing market conditions as a result of Covid-19 Pandemic, which have greatly impacted the construction industry.
In these circumstances, it is necessary to balance the competing interest of both parties. We think it would be in the interests of justice and fairplay that the amounts deposited by the Apartment Buyers is refunded with Interest @ 9% S.I. per annum from 27.11.2018 till the date of payment of the entire amount.
The refund will be paid within a period of three months from the date of this judgment. If there is any further delay, the Developer will be liable to pay default interest @ 12% S.I. p.a. (v) The Developer shall not deduct the Earnest Money of 20% from the principal amount, or any other amount as mentioned in Clause 21.3 of the Agreement, on account of the various defaults committed by the Developer, including the delay of over 7 months in obtaining the Fire NOC. "
In the present Complaint Case, the Complainants were allotted Unit No. A-4 -08-803, which falls in Phase 2 of the Project, where the Occupation Certificate (O.C.) has not been granted so far.Therefore, the Complainants are entitled to refund of the deposited amount alongwith interest @9% p.a.
Respectfully following the ratio of the Judgment of the Hon'ble Supreme Court in the case of "IREO Grace Realtech Pvt. Ltd. (supra)", the Opposite Party Developer is directed to refund 1,70,62,024.52/- (Rupees One Crore Seventy Lacs Sixty Two Thousand Twenty Four & Paisa Fifty Two only), alongwith interest @9% S.I. p.a. within 3 months from the date of this Order failing which the Developer shall be liable for payment of default interest @12% S.I. p.a. till the payment is made. The Opposite Party Developer shall not deduct the Earnest Money of 20% from the principal amount, or any other amount as mentioned in Clause 21.3 of the Agreement, on account of the various defaults committed by the Developer, including the delay of over 7 months in obtaining the Fire NOC.
The Consumer Complaint is allowed in above terms, with no order as to Costs.