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Judgment
Dr. Inder Jit Singh, Member
The present Consumer Complaint (CC) has been filed under Section 21 of the Consumer Protection Act,1986( for short ‘the Act’) by the Complainant against Opposite party (OP) as detailed above, inter alia praying for:-
i. To direct OP to pay a sum of Rs.30,74,813/- along with interest @ 24% from date of refund of the monies paid by the Complainant for flat.
ii. To direct OP to pay Rs.5 lakhs towards compensation for mental agony and harassment.
iii. To direct OP to pay Rs. 1 lakh towards litigation cost.
Notice was issued to OP, giving them 45 days’ time to file written statement. Written statement was filed by OP.
It is averred in the Complaint that: -
i. The complainant booked a residential apartment with the OP in a project namely ‘Rise’ which the OP was to develop in Sector 37-D of Gurgaon. The booking was made on 02/02/2013. After allotment of a residential apartment bearing No. B-1101 having super area of 1825 sq.ft. to the Complainant the parties executed an Apartment Buyers agreement (ABA) on 06/03/2013, incorporating their respective obligations in respect of the said transaction. As per ABA, the possession was proposed to be handed over to the complainant by September 2015. The grievance of the complainant is that the possession has not been offered to him by the OP constituting deficiency of service, unfair trade practices, restrictive trade practices etc. on their part despite she having paid Rs.30,74,813/- out of the agreed sale consideration of Rs.89,00,920/-
ii. The initial agreed sale consideration of the flat was Rs.86,67,625/- which was further raised to Rs 89,00,920/-
iii. The construction of the project was much slower and the timely delivery of possession was not possible, on raising concern with officials of OP, about the slow construction, they stated that the construction is getting delayed due to reasons beyond the control of OP, further they stated that they will be delivering the possession by August.
iv. On 14/03/2017, OP asked the Complainant to pay a sum of Rs.65,61,084/- which included a sum of Rs.19,09,831/- by way of penal interest charges which is highly arbitrary and amounts to unfair trade practices, however the Complainant was not inclined to pay the amount subject to slow construction by OP and conveyed the same to OP.
v. The Complainants have now lost all fate in the project of the OP. Hence the complainant wishes for the return of the money along with interest @ 24%. The Complainant is suffering from the tremendous financial losses as she is forced to live in rented accommodation and pay Rs. 24,500/- as rent of the flat
vi. The Complainant issued legal notice dated 09/10/2017 to OP to refund the amount along with interest to which OP did not respond, thus Complainant approached State Consumer Disputes Redressal Commission, bearing case No.C-244 of 2018, but the same was dismissed as withdrawn on 04/05/2018 on account of being beyond the pecuniary jurisdiction of the said State Commission.
vii. That the omissions and neglect on part of OP only shows that the OP is guilty of making false promises and cheating its customers to make illegal, unjustified and wrongful gains.
The OP in their written statement/reply stated that:-
i. OP has denied the fact of deficiency in providing its services and being involved in unfair trade practices and restrictive trade practices as alleged in the complaint.
ii. The delay in handing over the possession of the Apartment was on account of force majure and unforeseeable circumstances beyond the control of OP, including a ban on use of ground water by Hon’ble High Court of Punjab & Haryana vide its order dated 16.07.2012 directing to use only treated water from available Sewerage Treatment Plants followed by a letter dated 1.9.2012 from Dy. Commissioner, Gurgaon in this regard, heavy shortage of supply of construction material pursuant to orders of Hon’ble Supreme Court in the Case Deepak Kumar etc. Vs. State of Haryana, Demonization announced by Government of India on 08.11.2016, shortage of labour/workforce in the real estate market due to implementation of Government Programmes like NREGA, JNNURM, etc.
iii. The complainant has filed the present complaint with malafide intention to extract huge sums of money from the OP. It is also averred that clause 15(a) of the ABA is subject to Clause 31-Force Majeure, and in certain circumstances the date of possession gets extended automatically. Moreover, as per Clause 17(a) of ABA, in the eventuality of delay in handing over possession beyond the period stipulated in Clause 15(a), the allottee will be compensated with Rs.5/- per sq. ft. per month of super area.
iv. Time is not the essence in respect of delivering the possession of the apartment, and the stipulated date of delivery was only tentative and was not a firm date. Hon’ble Supreme Court in para 18 of its judgement in Bangalore Development Authority Vs Syndicate Bank (2007) 6 SCC 711 has held that in a contract involving construction, time is not the essence of the contract unless specified. The complainant herein is bound by the terms of the ABA.
v. Complainant is not a consumer, this commission lacks pecuniary jurisdiction. Clause 37 of ABA states that the matter be first dealt under arbitration, thus the complaint is not maintainable as it should be referred to arbitration first. Further clause 38 of ABA states that only the courts in Gurgaon, Haryana have the jurisdiction to deal with dispute arising out of the ABA, thus this commission does not have jurisdiction in the present matter.
Complainant in his rejoinder while reiterating the facts of the complaint and denying the allegations of OP, citing judgement of this Commission in support of her contention.
Evidence by way of an Affidavit was filed by the Complainant and OP broadly on the lines of averments made in the complaint/Written statement.
The details of the flats allotted to the Complainant:-
Sr No
Particulars
1
Apartment no
Unit No. B-1101, Floor 11th , Block-B
2
Super Area
1825 sq.ft.
3
Date of booking
02/02/2013
4
Date of signing ABA
06/03/2013
5
Committed date of possession as per ABA
01/09/2015
6
Grace period for possession as per ABA
120 days
7
Total Consideration
Rs. 89,00,920/-
8
Amount paid
Rs. 30,74,813/-
9
D/o Filing CC in NCDRC
02/06/2018
10
D/o issuing notice to OP
10/07/2018
11
D/o Filing Reply/Written Statement by OP
29/11/2018
12
D/o Filing rejoinder by the Complainant
28/02/2019
13
D/o Filing Evidence by way of Affidavit by the Complainant
15/01/2020
14
D/o Filing denial by way of Affidavit
by the Complainant
12/04/2019
15
D/o Filing Evidence by way of Affidavit by the OP
30/01/2020
16
D/o Filing denial by way of Affidavit by the OP
30/10/2019
Heard counsels of both sides.
The contention of OP that this Commission lacks pecuniary jurisdiction is not valid. Under Section 21 of the Act, Commission has the jurisdiction where value of goods and services and compensation, if any, claimed exceeds Rs. one crore. The OP have failed to deliver the possession of the unit to the complainant till date and therefore, the cause of action is continuing. The contention that complainant is not a consumer as he has purchased the unit for commercial purpose is also rejected as no such evidence has been adduced by the OPs in this regard. The plea of OP that delay was due to force majeure circumstances is not valid as even after a gap of more than 6 years from the committed date given in the ABA, possession of flat has not been given. There is no documentary evidence to support the contention of the Opposite Parties that the reasons pleaded by them, can be construed as ‘Force Majeure. The contention of the OP that the parties are bound by the agreement is also not acceptable. Hon’ble Supreme Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raglivan II (2019) CPJ 34 (SC) decided on 02.04.2019 held that “a term of a contract will not be final and binding if it is shown that the flat purchasers had no option to sign on the dotted line, on a contract framed by the builder ......... the incorporation of one sided clause in an agreement constitute an unfair trade practice as per Section 2 (r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling flats by the builder ........., the appellant-builder cannot seek to bind the respondent with such one sided contractual terms.”
In the instant case, there is an inordinate delay in handing over the possession of flat by the OP. The Complainant 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. The plea of OP for entitlement of compensation to the Complainant in accordance with provisions of the ABA is not valid.
This Commission in various CCs, some of which are listed below, against the same OP, involving similar/identical facts, keeping in view the submissions of counsel of the parties regarding rate of interest, have allowed refund to the concerned complainants along with interest @ 8%. During the argument, the counsel for Complainant in the present cases also relied upon the earlier judgements of this commission. Hence in the present cases also the interest is restricted @ 8%.
i. CC No.1258 of 2019, Manpreet Singh Deol V/s Ramprastha Promoters and Developers Pvt.Ltd. & Anr.
ii. CC No.1298 of 2019, Shri Ritesh Kumar Jalan V/s Ramprastha Promoters and Developers Pvt.Ltd. & Anr.
iii. CC No. 1328 of 2019, Himanshu Vijyavargiya & Anr. V/s Ramprastha Promoters and Developers Pvt.Ltd. & Anr.
iv. CC No. 2328 of 2019 Karun Jain & Anr. V/s Ramprastha Promoters and Developers Pvt.Ltd. & Anr.
v. CC No. 2324 of 2017 Mohit Sharma & Anr. V/s Ramprastha Promoters and Developers Pvt.Ltd. & Anr.
vi. CC No. 310 of 2019 Madan Jeet Singh & Anr. V/s Ramprastha Promoters and Developers Pvt.Ltd. & Anr.
vii. CC No.602 of 2018 Yogesh Kumar Gupta & Anr. V/s Ramprastha Promoters and Developers Pvt.Ltd. & Anr. and connected cases.
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 off with the following directions/reliefs: -
i. The OP shall refund the entire principal amount of Rs. 30,74,813/- (Rupees thirty lakhs seventy four thousand eight hundred thirteen only) to the complainant, alongwith compensation in the form of simple interest @ 8% 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 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 within four weeks from receipt of this order to enable them to issue refund cheques/drafts accordingly.
The pending IA’s, if any, also stand disposed off.