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Judgment
The present Consumer Complaint (CC) has been filed by the Complainant against Opposite Party (OP) as detailed above, inter alia praying for directions to the OP to:-
i. Refund the entire amount of Rs. 26,03,765/- collected from complainant towards consideration of flat, along with interest @18% p.a.
ii. Pay the amount of Rs. 5,00,000/- towards mental agony and harassment and towards cost of litigation to the complainant.
Notice was issued to the OP on 22.08.2019. Parties filed Written Statement/Reply and Evidence by way of an Affidavit as per details given in the Table at Annexure-A. The details of the flats allotted to the Complainant (s)/other relevant details, based on pleadings of the parties and other records of the case are also given in the Table at Annexure-A.
It is averred/stated in the Complaint that:
i. On 11.07.2012, the complainant booked an apartment in the project of the OP known as “The Leaf” in Sector 84-85, Gurgaon, Haryana. The complainant is the original allottee. An Agreement was entered into between the parties on 17.10.2013. The complainant was allotted Apartment No. 19-A at 19th floor in Tower-3, admeasuring 1620 sq. ft.
ii. As per clause 8.1 of the Flat Buyer’s Agreement, the OP was to give possession of the apartment to the complainant within 36 months from the date of execution of the Agreement with a grace period of 6 months. The OP failed to give possession to the complainant till date.
iii. The complainant has now lost all faith in the project of the OP. The semi constructed building of the project in which the house of the complainant is being constructed has been lying in abandoned shell form since last many years. It has deteriorated in value and there are chances that it will collapse soon as the structure which is not complete and exposed to vagaries of nature like rain, wind etc. is prone to defects. The complainant does not wish to reside in such a building even if the OP delivers the possession of the same to him in near future.
iv. OP has collected a substantial amount from the complainant, which is not even due yet. The OP has been keeping and using money of the complainant elsewhere. The conduct, acts and omission of the OP, falls within the ambit of deficiency of services, unfair trade practices and restrictive trade practices as defined under the Act.
v. As the OP failed to deliver the possession and as per clause 8.3 of the Buyer’s Agreement, it was agreed by the OP that in case the OP fails to hand over the possession within the grace period of six months, the OP shall pay to the complainant a compensation at the rate of Rs.5/- per sq.ft. per month of the Super area for the period of the delay. The clause of compensation at such a nominal rate of Rs.5/- per sq.ft. per month for the period of the delay is unjust and one sided.
The OP in their written statement/reply stated that:
i. The complainant is not a consumer within the meaning of Section 2(d) of the Consumer Protection Act, 1986, the motive of the complainant was commercial/ investment purpose. The contents of complaint are false, incorrect and misleading.
ii. The complainant failed to honour her part of the contract in paying timely instalments as per the agreed payment plan and stopped making payments in 2013. It is also contended that clause 8 of the Agreement provides for handing over of possession of the units to the complainant subject to condition of complainant fulfilling their part of obligation under the contract. However, payments have been either delayed or not made by the complainant.
Heard counsels of both sides. Contentions/pleas of the parties, on various issues raised in the Complaint, based on their Complaint/Reply, Evidence, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.
It was argued by the complainant that the default of home buyers, if any, cannot be a valid ground for delay of years in completion of units. There can be a small delay of default owing to arrangements of funds. OP has the option of raising funds from the open market. Delaying projects worth crores for small defaults of lakhs does not make sense. OP have the right to charge exorbitant interest in case of delays and they can even cancel the units, which they have not done. Reliance was placed on the judgment of this Commission in CC/3699/2017 in Nitin Pandey & Anr. Vs. Emaar MGF Land Ltd. decided on 24.12.2021 and Ramesh Thangarajan & Anr. Versus Sylvanus Builders & Developers Ltd. & Ors. decided on 14.03.2022. Reliance was also placed on the observations of Hon’ble Supreme Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan (2019) 5 SCC 725 and Experion Developers (P) Ltd. Vs. Sushma Ashok Shiroor (2022) SCC online 416 to seek refund in the facts and circumstances of the case.
OP on the other hand argued that complainant had opted for construction linked payment plan, and had defaulted in making payments against many demands. Since 19.11.2013 no further payment was made. All payments received by the OP from the allottees have been invested in the project. However, the deficit payments by the allottees has freezed the hands of the OP in timely completion of the project.
OP further contended that complainant invested money in the project for commercial gains. As per Clause 8 of the agreement, the period of granting possession was subject to complainant complying with all the terms and conditions of the agreement. Reliance was made by OP on the observations of Hon’ble Supreme Court in Sahara India Commercial Corporation Ltd. Vs. P. Gajendra Chary –III (2010) CPJ 190 (NC) and DLF Southern Towns Pvt. Ltd. Vs. Dipu C Seminlal - 2015 SCC Online NCDRC 1, in this regard.
Committed date of possession as per agreement, with a grace period of three months was 17.01.2017. OP has not stated throughout whether they have obtained OC or not and are still not in a position to give any firm commitment for delivering possession to the complainant. There is an inordinate delay in delivery of possession to the complainant. Hon’ble Supreme Court in Wg. Cdr. Arifur Rahman Khan And Aleya Sultana and Ors. vs DLF Southern Homes Pvt. Ltd. & Ors. (2020) 16 SCC 512 and in Ireo Grace Realtech Pvt.Ltd. Vs. Abhishek Khanna & Anr. (2021) 3 SCC 241, held that failure of the developer to comply with contractual obligations to provide flats within contractually stipulated period would amount to deficiency in service and thus amenable to the jurisdiction of consumer fora. Further the Hon’ble Supreme Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan (2019) 5 SCC 728 held that “The Respondent – Flat Purchaser could not be compelled to take possession of the flat, even though it was offered almost 2 years after the grace period under the Agreement expired .” “Allottees who have not been given possession cannot be made to wait indefinitely for possession …….. such allottees are entitled to refund of entire amount by them.” In Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra- 2019(6) Scale 462, Hon’ble Supreme Court observed that “A buyer can be expected to wait for possession for a reasonable period.”
The contention that complainant is not a consumer as the sole motive of complainant was to re-sell the said flat at a much higher place, is rejected as no such evidence has been adduced by the OP in this regard. The contention of the OP(s) that the parties are bound by the agreement is also not acceptable.
In the instant cases, there is an inordinate delay in handing over the possession of flat by the OP. The complainants cannot be made to wait for an indefinite time and suffer financially. Hence, the complainant in the present circumstances have a legitimate right to claim refund alongwith fair delay compensation/interest from the OP.
For the reasons stated hereinabove, and after giving a thoughtful consideration to the entire facts and circumstances of the case, various pleas raised by the learned Counsel for the Parties, the Consumer Complaint is allowed/disposed of with the following directions/reliefs: -
(i) The OP shall refund the entire principal amount of Rs. 26,03,765/- (Rupees twenty six lacs three thousand seven hundred and sixty five only) to the complainant, alongwith compensation in the form of simple interest @ 9% per annum from the date of each payment till the date of refund. The principal amount refundable mentioned in this para is subject to verification of actual amount paid by the complainant based on receipts etc.
(ii) The OP shall pay a sum of Rs.25,000/- as cost of litigation to the complainants.
(iii) The payment in terms of this order shall be paid within three months from today.
(iv) In case the complainant has/have taken loan from Bank(s)/other financial institution(s) and the same/any portion of the same is still outstanding, the refund amount will be first utilized for repaying the outstanding amount of such loans and balance will be retained by the complainant. The complainant would submit the requisite documents from the concerned bank(s)/financial institution(s) to the OP four weeks from receipt of this order to enable them to issue refund cheques/drafts accordingly.
The pending IAs, in any of the Consumer Complaints, if any, also stand disposed off.
Annexure-A
Details of the Unit and other related details
Sr No
Particulars
1
Project Name/Location etc
“The Leaf” in Sector 84-85, Gurgaon, Haryana
2
Apartment no
19-A
3
Size (Built up/Covered/Super Area)
1620 sq. ft.
4
Date of application
11.07.2012
5
Date of signing Agreement (ABA)
17.10.2013
6
Committed date of possession as per Agreement (with Grace period, 90 days)
17.01.2017
7
Total Consideration as per agreement
Rs. 88,67,520/-
8
Amount Paid
Rs. 26,03,765/-
9
D/o Filing CC in NCDRC
19.08.2019
10
D/o Issue of Notice to OP
22.08.2019
11
D/o Filing Reply/Written Statement by OP
10.12.2019
12
D/o filing Rejoinder by the Complainant(s)
28.10.2020
13
D/o Filing Evidence by way of Affidavit by the Complainant(s)
28.10.2020
14
D/o filing Affidavit of admission/denial of documents filed by Complainant(s)
28.10.2020
15
D/o Filing Evidence by way of Affidavit by the OP
19.08.2021
16
D/o filing Written Synopsis by the Complainant(s)
16.12.2022
17
D/o filing Written Synopsis by the OP
Not filed