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Judgment
Subhash Chandra, Presiding Member
This is a Complaint filed under Section 21 of the Consumer Protection Act, 1986 (in short, ‘the Act’) seeking physical and legal possession of the Apartment booked with the Opposite Parties in its Group Housing Residential Scheme under the name and style of “Suncity Parikrama Panchkula”, Sector-20, Panchkula, Haryana 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 “Suncity Parikrama Panchkula”, Haryana. Vide Apartment Buyers Agreement (in short, the ‘Agreement’) dated 22.11.2010 with Opposite Party, the Complainant was allotted Apartment No. 1001 with total area of 2150 sq.ft. at the rate of 2700/- sq.ft. on 10th Floor, Tower No.2A, Sector-20, Panchkula, Haryana on 06.09.2010 at Rs.63,84,592/- (including car parking of Rs.3,00,000/- and EDC/IDC of Rs.2,79,592/-) and paid an amount of Rs.14,51,250/- vide Receipt No.1100001409.
Clause 25 of the Agreement dated 22.11.2010, provides three years period from the date of agreement or approval of all services plans, whichever is later, and subject to timely payment by the allottee, for delivery of possession. Further, in case of delay in completion of the construction of the said apartment beyond three years, the Opposite Party shall pay compensation @ Rs.10/- per sq.ft. per month of the saleable area for such delay. The Complainant has paid an amount of Rs.56,68,359/- to the Opposite Party till date. However, it is averred by the Complainant that no substantive work was visible at the project site and the Opposite Party, which was expected to hand over the possession within three years i.e. on or before 22.11.2013 reckoned from the date of allotment on 22.11.2010, has been deficient in service. Alleging deficiency in service in handing over possession despite the lapse of more than three years and as no compensation as per Agreement has been paid, the Complainant is before us with the following prayers:
(a) Direct Opposite Parties to hand over the physical and legal possession of the Apartment No.1001, Tower No.2A with complete in all respects in accordance with the allotment letter and independent buyers agreement as soon as possible;
(b) Opposite Parties may be directed to pay interest calculated @ 15 p.a. on the amount deposited i.e. from the date of delay in handing of the possession to the complainant till the date the possession is handed over to the complainant.
(c) Opposite Parties may be directed to pay the compensation @ Rs.10/- per square feet per month of the saleable area as per the clause 25 at page No.7 of the independent buyers agreement dated 22.11.2010 for the delaying the possession, along with interest @ 24% p.a. from 22.11.2010 on such amount;
(d) direct the Opposite Parties to provide all basic and promised facilities/communities to the complainant within specified time, otherwise to compensate the complainant after that specified time if the such basic and promised facilities are not provided on a proportionate basis;
(e) Direct Opposite Parties to give the proper and legal possession of Apartment in question, after obtaining all due permissions and certificates including the Completion Certificate interalia from the concerned authorities;
(f) Award compensation of Rs.5,00,000/- on account of causing financial risk, hardship, mental agony, harassment, emotional disturbance caused to the Complainant due to the actions/omissions;
(g) Opposite Parties may be directed to pay Rs.70,000/- as litigation expenses;
(h) Award compensation under section 14 (hb) of Consumer Protection Act on account of following Unfair Trade Practice with large number of persons;
(i) Orders to dispense with the filing of the certified copies/true typed/fair copies of Annexures;
(j) Grant any other relief which this Hon’ble National Commission may deem fit and proper under the facts and circumstances of the present case.
The complaint was contested by the Opposite Party by filing reply in which allotment of the flat and execution of Apartment Buyer Agreement on 22.11.2010 in favour of the Complainant has not been disputed. It is contended that there has been no deficiency in service as alleged. The Opposite Party took the preliminary objection that the complaint is not filed within the limitation period and the Complainant is not a ‘consumer’ within the meaning of Section 2(1)(d) of the Act. He had invested in the apartment to earn money by way of rent and/or re-sell the property at an appreciated value. Exorbitant claims are made to achieve pecuniary jurisdiction of this Commission. The Opposite Party had already obtained the Occupancy Certificate on 16.02.2017 and offered offer of possession to the Complainant vide letter dated 16.02.2017. Subsequently, the Complainant paid the entire balance sale consideration and took legal possession of the apartment vide Sale Deed executed on 24.07.2017 in his favour. Clause 27 of the Agreement envisages delay on account of ‘force majeure’ conditions, would not be considered as delay. It is submitted that M/s Odeon Builders Pvt. Ltd. was the technical partner and associate company of the Opposite Party who was given liability for completing the construction of this project. Due to certain issues with regard to assurances of quality, timelines and cost, the technical partnership with M/s Odeon Builders Pvt. Ltd. broke down. Measurement of the work, demobilization of equipment, plant and machinery and other fittings & fixtures, etc. were done due to which construction work was hampered during 2013-2014. The Opposite Party then engaged a new contractor, viz., Fastech Project Pvt. Ltd. to complete the project. In terms of provisions of the Agreement, relief of refund and compensation claimed by the Complainant is stated to be beyond and contrary to the terms of the Agreement and cannot be sustained. It is denied that the Opposite Party was bound to deliver possession to the Complainant within three years from the date of execution of the Agreement. The time mentioned in the Agreement was only a “contemplated” period and as such the Opposite Party was not liable to pay compensation to the Complainant of Rs.10/- per sq.ft. per month. In the offer of possession and final demand letter dated 16.02.2017, delayed compensation of Rs.8,36,350/- has been adjusted. The Agreement was executed on 22.11.2010 and the Complainant cannot be permitted to challenge various terms and conditions of the Agreement after expiry of more than seven years and after taking possession of the unit. The issues raised are of contractual nature, which can be agitated before a Civil Court and are beyond the scope and jurisdiction of this Commission. There is no negligence on the part of the Opposite Party. As such, the Complainant is not entitled for any relief as prayed for or otherwise. Therefore, the present complaint deserves to be dismissed.
The Complainant filed his rejoinder. Parties led their evidence and filed written submissions. I have heard the Learned Counsel for both the Parties and perused the records carefully.
The Opposite Parties’ preliminary objections pertaining to (i) applicability of limitation under section 24A of the Act in filing this complaint as the Agreement is being challenged after 7 years, (ii) the Complainant not being a ‘consumer’ under section 24A since she invested in the flat for selling it at an appreciated valued; (iii) lack of pecuniary jurisdiction of this Commission as the claim is inflated (iv) issues raised are contractual and therefore need to be decided by arbitration and not by this Commission, have been considered.
Firstly, the Complainant booked the unit with the Opposite Party on 06.09.2010. The Opposite Party asked for the demand on 06.09.2010 and further on 22.11.2010. The Opposite Party failed to deliver possession on 22.11.2013 till the actual possession was offered. It was a continuous cause of action against the Opposite Party. The Complaint was filed on 29.03.2017 which was well within the time.
Secondly, the Complainant paid the entire balance sale consideration and took legal possession of the apartment vide Sale Deed executed on 24.07.2017 in her favour. Letting out the property for renting purposes is not a commercial purpose. Hence, the argument advanced by the Learned Counsel for the Opposite Party is not accepted.
The settled law on pecuniary jurisdiction as held by this Commission in Ambrish Kumar Shukla and 21 Ors vs Ferrous Infrastructure Pvt. Ltd., I 2017 CPJ 1 (NC) and Renu Singh vs Experion Developers Pvt. Ltd., CC no.1703 of 2018 is that the principle for determining the pecuniary jurisdiction is the total consideration paid by the complainant or persons who have joined the complaint in a joint complaint and other damages claimed to determine such jurisdiction. In view of this position of law the contention of the opposite party regarding pecuniary jurisdiction does not sustain. The opposite party‘s contention that in view of the provision of a clause for arbitration in the Agreement, this complaint does not lie before this Commission has been considered. The Hon’ble Supreme Court has held in its judgment in Emaar MGF Land Ltd. Vs. Aftab Singh, (2019) 12 SCC 751 that the remedy under the Consumer Protection Act, 1986 is not restrained by the existence of an arbitration clause and that the remedy under the Act is in addition to other provisions under the law. It has also reiterated this view in M/s Imperia Structures Ltd. Vs. Anil Patni & Anr., (2020) 10 SCC 783 decided on 02.11.2010 that “remedies under the Consumer Protection Act were in addition to the remedies available under special statutes (and) the provisions of this Act shall be in addition to and not in derogation of any other law for the time being in force”. Hence, this argument cannot be sustained.
On merits it is argued that the delay was attributable to ‘force majeure’ events since the original contractor executing the project left the project during 2013-14. It is also argued that there was no commitment to hand over the project in 36 months and that it was only contemplated to do so. The offer of possession dated 16.02.2017 is therefore justified by the Opposite Parties and it is stated that there has been no deficiency in service as there was no delay in handing over of possession.
From the foregoing, it is apparent that the Opposite Parties had undertaken to complete the project in 36 months. Its contention that it was only contemplated is incorrect as the Agreement is clear. Delay in handing over possession is admitted as the final demand letter and offer one dated 16.02.2017 whereas the offer should have been made i.e. by 22.11.2013 if 36 months are reckoned from 22.11.2010, the date of allotment. There is a continuing cause of action for the Complainant to seek redress. In Pioneer Urban Land and Infrastructure Ltd. Vs. Govindan Raghavan and Connected matter II (2019) CPJ 34 SCC decided on 02.04.2019 and Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra – II (2019) CPJ 29 SC, decided on 25.03.2019, the Hon’ble Supreme Court has upheld the right of the allottee to seek the relief of refund in case the builder fails to fulfil his contractual obligation to obtain the Occupancy Certificate and offer possession within the time stipulated in the Agreement or a reasonable time thereafter.
In view of the discussion above, it is evident that the Opposite Party failed to hand over possession of the apartment booked by the Complainant as per the date committed by it which amounts to deficiency in service. Since during pendency of the Complaint, the Complainant paid the entire balance sale consideration and had taken legal possession of the apartment vide Sale Deed executed on 24.07.2017 in her favour, the prayer (a) of the Complaint stands infructuous. The Hon’ble Supreme Court in Wg. Comdr. Arifur Rahman Khan Vs. DLF Southern Themes Pvt. Ltd. (2020) 16 SCC 512 and DLF Home Buyers Ltd. Vs. Capital Green Flat Buyers Association (2021) 5 SCC 537 has held that 6% interest per annum from the date of promised possession till the date of offer of possession would be appropriate compensation for delayed possession. The Complainant is, therefore, entitled for the delayed compensation.
For the reasons stated above, the complaint is liable to succeed. Accordingly it is allowed and the complaint is disposed of with the following directions:
(i) The Opposite Party is directed to pay 6% p.a. interest on the amount deposited by the Complainant from the due date of possession till the date of offer of possession;
(ii) Opposite Party shall pay Rs.50,000/- as cost of litigation to the Complainant.
All pending IAs, if any, stand disposed of along with this order.