Kant Kukreti vs M/S. SS Group Pvt. LTD & Anr

IA 17167 of 2019 (condonation of delay in filing evidence)

Not opposed. Allowed.

Complaint

Final arguments are heard.

The present complaint has been filed by the complainant against the opposite parties alleging that they have failed to fulfill the terms and conditions of the agreement. It is submitted that complainant had booked a unit in the project of the opposite party known as 'The Leaf' Residential Complex, SS City, Sector-85, Gurgaon. An allotment letter dated 10.09.2012 was issued to the complainant and apartment no.21 A, Tower 3 in the said project which is 2 BHK + PR having super area of 1620 sq. ft. (approx.) in Tower-3 was allotted to him. The first payment towards the said apartment was made in as early as February 2012. However, the flat buyer's agreement was executed on 27.03.2014 and as per the said agreement, the payments towards the consideration were construction linked. It is submitted that a sum of Rs.57,15,614/- had been paid by the complainant through cheques and demand drafts on various dates. The construction was to be completed within 36 months with grace period of 90 days, yet till date construction is not completed. On these contentions, it is submitted that opposite party be directed to refund his deposited amount with interest on it @ 18% per annum, till its realization. A sum of 10 Lakhs towards escalation cost and 2 Lakhs be awarded towards undue hardship and injury both physical and mental alongwith litigation expenses of 1,00,000/- It is submitted that this Commission has the jurisdiction since value of the flat was more than rupees one crore.

The claim is contested by the opposite party. Besides other contentions, a preliminary issue was raised that this Commission has no jurisdiction since the complainant has sought the refund of its amount which is less than rupees one crore. On merits, it is submitted that there was no deficiency in service on their part since it is the complainant who had failed to pay the instalments in accordance with the payment plan, which has resulted delay in construction of the unit.

Parties have led their evidences by way of affidavit and filed their documents. Counsel for the respective parties have argued the matter. It is submitted on behalf of the complainant that opposite party has failed to fulfill its obligation under the agreement and failed to raise the construction as per promise despite the fact that substantial amount of 57,15,614/- has been paid by the complainant. The completion of the project was nowhere in sight when the site was visited.

On behalf of the opposite party, it is argued that the complainant had defaulted in signing the Buyer Agreement and the period of 36 months was only to commence from the date of execution of agreement. It is further argued that the complainant has miserably failed to honour his part of the contract in paying timely instalments as per the agreed payment plan. It is submitted that on 14.04.2018, an amount of 4,74,558/- was due and payable by the complainant to the Opposite Party. It is further submitted that an e-mail dated 26.03.2014 was sent informing the complainant that the Flat Buyer Agreement was still not signed and submitted with the Opposite Party No.1 and request was made to the Complainant to sign and submit Flat Buyers Agreement along with other documents as mentioned in the e-mail. It is argued that the complainant himself being a habitual defaulter and having miserably failed to honour his commitment under the Agreement cannot therefore invoke the jurisdiction of this Commission and the complaint is liable to be dismissed on this ground alone. It is further argued that as per clause 8.3 (b), complainants had a right to terminate the contract after expiry of 51 months from the date of signing of the agreement by giving prior notice of 90 days. It is argued that this Commission has no pecuniary jurisdiction to entertain this complaint. It is argued that Section 21 of the Consumer Protection Act, 1986 (in short, the Act) which determines the jurisdiction of this Commission, the expression used is 'claimed'. It is submitted that this Commission has jurisdiction if the value of goods claimed exceeds rupees one crore. It is submitted that since claim of the complainants is only 57,15,614/-, this Commission has no pecuniary jurisdiction.

We have heard the arguments and perused the relevant record.

As regards the question of jurisdiction is concerned, Section 21 of the Act determines the jurisdiction of this Commission. Section 21 of the Act has been elaborately discussed by larger Bench of this Commission in the matter of " Ambrish Kumar Shukla & Ors. Vs. Ferrous Infrastructure Private Limited, I (2017) CPJ 1 NC, where it has been held as under:

"In view of the answer to the issues No. (ii) and (iii) of the reference order dated 24.5.2016, it is the aggregate value of the goods purchased or the services hired or availed of by all the consumers on whose behalf or for whose benefit the complaint is filed which, added to the total amount of compensation, if any, claimed for all such consumers determines the pecuniary jurisdiction of the Consumer Forum. The value of the goods purchased or the services hired or availed of by an individual consumer and the compensation claimed in respect of an individual consumer would have no bearing on such determination."

The larger Bench of this Commission has held that it is the aggregate value of goods purchased or the services hired which determines the jurisdiction of consumer Fora. Undisputedly, in this case, value of the goods i.e. value of the flat was more than rupees one crore. Hence, this Commission has pecuniary jurisdiction.

Learned counsel for the Opposite Party has submitted that there is a default on the part of the Complainant in making the payment. This contention is denied by the Complainant. Learned Counsel has failed to point out the default, if any, on the part of the Complainant which resulted or contributed in the delay of completion of the project. This argument has no merit. It is already on record and admitted that there was a delay on the part of the Complainant to make the payment of the instalments for which the Opposite Party had charged the interest, however on representation of the Complainant, they waived off the delayed charges and accepted the payment without any delay charges, thereby they have condoned the delay.

Learned Counsel for the Opposite Party has further relied on "Prashant Kumar Shahi vs. Ghaziabad Development Authority (2000) 4 SCC 120". In this case, there is only one incident of default in payment which was subsequently paid and for which the delay interest was waived off by the Opposite Party.

Learned counsel for the Opposite Party has argued that since there was a delay in payment of the money by the Complainant, they should be entitled to forfeit the earnest money. This argument has no merit in view of the fact that as stated above, Opposite Party has themselves condoned the delay in making the payment of the instalments by waiving off the late payment interest and even otherwise, the present Complaint has been filed for refund of money on the ground of delay in handing over the possession of the flat and that the completion of the flat is nowhere in sight. Admittedly, till now the construction of the subject flat has not been completed and no OC has been obtained by the Opposite Party so far. In view of this, findings of Hon'ble Supreme Court in "HUDA And Anr. Vs. Kewal Krishan Goel And Others, (1996) 4 SCC 249" relied upon by the Opposite Party has no reliance to the facts of this case.

Learned Counsel for the Opposite Party has also argued that rate of interest should not exceed 9%. Learned Counsel for the Complainant has drawn our attention to the decision of this Commission in " Consumer Case No.706 of 2015 Vijay Kumar & Anr. Vs. M/s SS Group Pvt. Ltd. & Ors." r elating to same project wherein this Commission while ordering the refund of money has granted simple interest @ 12% from the date of deposit of the instalments and till the amount is realised to the Complainant and this order has not been challenged by the Opposite Party No.1 and has been accepted. This Commission cannot differentiate between two consumers of the same project.

Accordingly, the argument of learned counsel for the Opposite Party is hereby rejected.

The facts that emerges from the complaint are that complainant booked unit no.21-A Tower 3 which is 2 BHK + PR having super area of 1620 sq. ft. ( approx.) for a sum of 88,57,800/- and a builder buyer agreement was entered into. As per clause 8.1 (a), the possession of the unit was to be given within 36 months with a grace period of 90 days. It is also an admitted fact that payment was construction linked and the complainant had been making the payment without even any demand from the opposite party to show the status of the construction and the amount payable. This only shows the eagerness and bonafide of the complainant to make the payment so that he can get the flat at the earliest. Although opposite party had promised to hand over possession of the flat within 36 months with grace period of 90 days, the fact remains that till today, the opposite party has not offered the possession of the flat to the complainant. Now, more than five years have elapsed since the builder buyer agreement. It is also not the case of the opposite party that construction is complete. Neither occupancy certificate or completion certificate has been placed or filed nor it is contended that it has been applied with the competent Authority. There is certainly deficiency in service on the part of the opposite party as they have failed to offer the possession of the flat to the complainant within the stipulated period and have not yet completed the project.

In view of the above discussion, we allow the present consumer complaint with following directions:

a. Opposite party no.1 is directed to refund the deposited amount of Rs.57,15,614/-received from the complainant alongwith compensation in the form of simple interest @ 12% per annum per annum with effect from the date of respective payments till the date on which the entire principal amount alongwith interest is actually paid.

b. A sum of 5 lakhs is awarded towards mental agony and harassment as compensation.

c. The opposite party no.1 shall also pay a sum of 10,000/- as the cost of litigation to the complainant.

d. The payment in terms of this order shall be paid within six months from today. With these directions, the complaint stands disposed off.