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Judgment
Heard Dr. Surat Singh, Advocate, for the complainants and Mr. Gaurav Sharma, Advocate, for the opposite party.
Lokhnath Mohapatra and Arati Mohapatra have filed above complaint for directing the opposite party to (1) refund an amount of Rs.11616164/-; (2) pay interest @ 18% p.a. on the payment made by the complainants; (3) any other order reliefs which this Commission deems fit in the facts and circumstances of the case.
The complainants stated that the opposite party is a company incorporated under the provisions of Companies Act, 1956. On 24.05.2012, the complainants were allotted residential apartment No.C1010, 10th Floor, Tower-C in the group housing project, namely, SKYON Sector-60, Gurgaon. The apartment was having super area of 2083 sq. ft. Builder buyer agreement was executed on 05.10.2012 and the possession of the apartment was to be delivered in the end of 2014. The complainants made timely payment till 2013, as per construction linked plan given in the agreement. When the complainants came to know that the opposite party is not constructing the project as per agreement, they stopped making the payment after January, 2014. The opposite party failed to handover the possession within the stipulated period. However, on 06.09.2016, the opposite party sent letter intimating the complainants to take possession. On 03.11.2016, the opposite party sent a notice of termination of the allotment stating that the earnest money, brokerage, delayed interest and service tax etc. shall be forfeited in accordance with clause 21.3 of the agreement. Then the complainant filed the present consumer complaint on 22.12.2016.
The complaint was contested by the opposite party by filing the written version on 28.02.2017 stating that the project has been completed and the opposite party has also obtained occupancy certificate. Even possession has been offered to almost 256 allottees and 62 conveyance deeds have been executed. The complainants were also offered possession but they did not come forward to take over the possession nor made payment of outstanding amount of Rs.18932642/-. As the complainants failed to make the payment of the outstanding amount, their allotment was cancelled, vide termination notice dated 03.11.2016. The offer of possession was sent to the complainants one year before the due date of possession. The allegation of the complainants that possession was to be delivered by the end of 2014 is not correct. Possession was to be delivered within 42 months from the date of approval of building plan/fulfilment of the pre-conditions imposed thereunder, with a grace period of six months, subject to force majeure. Pre-condition for approval of building plan i.e. fire NOC was obtained on 25.09.2013. Therefore, 48 months period would be counted from 25.09.2013 and the due date of possession would be 24.09.2017. There was no delay in the offer of possession. As the complainants failed to make payment of the instalments after January, 2014, the opposite party terminated the allotment.
The opposite party also raised the preliminary objection stating that the complainants have filed two authority letters of the complainants authorising Mr. Raj Kumar to file the present complaint. The authority letters cannot be treated to be power of attorney. In absence of power of attorney, this Commission should not entertain the complaint. The opposite party relied on the judgments of Supreme Court in Saurabh Prakash vs. DLF Universal Ltd. (2007) 1 SCC 228; and Pawan Hans Ltd. vs. Union of India & Anr. (2003) 5 SCC 71 and stated that the Consumer Court has no jurisdiction to modify or re-write the terms of the agreement and the present dispute can be decided only by a Civil Court. As per clause 35 of the agreement, any dispute between the parties can be resolved through arbitration. The complainants have booked the apartment for commercial purpose as they are settled in U.S.A. and they are not consumers under Section 2 (1) (d) of the Consumer Protection Act, 1986. An agreement for sale of apartment cannot be treated as service under Consumer Protection Act, 1986 in terms of judgment of Supreme Court in Bangalore Development Authority vs. Syndicate Bank (2007) 6 SCC 711. There is no deficiency in service on the part of the opposite party and the complaint is liable to be dismissed.
The complainants filed Rejoinder Reply, Affidavit of Evidence of Lokanath Mohapatra and documentary evidence. The Opposite party filed Affidavit of Evidence of Ashok Kumar. Both parties have filed their written arguments.
We have considered the arguments of the counsel for the parties and examined the record. The facts relating to booking of the apartment, execution of builder buyer agreement and the payments made by the complainants are admitted by the parties. The dispute relates to the delay in delivery of possession. According to the complainants, possession was to be delivered in the end of 2014. On the other hand, the opposite party stated that the possession was to be delivered by 24.09.2017. In this regard, clause 13.3 of the agreement is relevant, which reads as under:-
13.3 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 the agreement and not being in default of 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 building plans and/or fulfilment 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 fur unforeseen delays beyond the reasonable control of the company.
From the above it is clear that possession was to be delivered within 42 months from the date of approval of building plan or fulfilment of the pre-conditions imposed thereunder, with a grace period of six months, subject to force majeure. Supreme Court in Ireo Grace Realtech Pvt. Ltd. vs. Abhishek Khanna (2021) 3 SCC 241, while considering similar terms and conditions of the agreement, held that 42 months period has to be counted from the date of issuance of Fire NOC. As such due date of possession, including grace period would be 24.09.2017.
The complainants have admitted that they stopped making payment after January, 2014 and thereafter they did not make any payment. Learned counsel for the complainants relied on the judgment of Supreme Court in Pioneer Urban Land & Infrastructure Ltd. vs. Govindan Raghavan (2019) 5 SCC 725. As the complainants themselves violated the terms of the agreement by not making payment after January, 2014, they are not entitled for any compensation due to cancellation of allotment and the opposite party was justified in cancelling their allotment. After cancelling the allotment, the opposite party has not refunded the amount to the complainants, which is deficiency in service on its part. The opposite party is liable to refund the amount deposited by the complainants after forfeiting the earnest money. This Commission in CC/438/2019 Ramesh Malhotra Vs. EMAAR MGF Land Ltd. (decided on 29.06.2020), CC/3328/2017 Mrs. Prerana Banerjee Vs. Puri Construction Ltd. (decided on 07.02.2022 and Mr. Saurav Sanyal Vs. M/s. Ireao Grace Pvt. Ltd. (decided on 13.04.2022) held that 10% of basic sale price is reasonable amount to be forfeited as earnest money.
Supreme Court in M/s Emaar MGF Land Limited vs. Aftab Singh I (2019) CPJ 5 (SC), laid down that Arbitration clause in the Agreement does not bar the jurisdiction of the Consumer Fora to entertain the Complaint. To substantiate the allegation that the complainants have booked the apartment for commercial purpose, the opposite party has not adduced any evidence. The opposite party also raised the objection that Mr. Raj Kumar who has filed the complaint on behalf of the complainants was not authorised to file the complaint as there is no power of attorney issued by the complainants in his favour. In this regard, regulation 3 of Consumer Protection (Procedure for Regulation of Allowing Appearance of Agents or Representatives or Non-Advocates or Voluntary Organisations Before the Consumer Forum), Regulations, 2014 is relevant which reads as under: -
Appearance by agent, non-advocate, representative or social organisations.-(l) A party may authorise an Agent or non-advocate or representative or social organisations to represent him before the Consumer Forum in an individual complaint case/appeal or revision, subject to production of duly authenticated authorisation made by the party in favour of such Agent or non-advocate or representative or social organisation, subject to the conditions that he,- (a) is appearing on an individual case basis; (b) has a pre-existing relationship with the complainant (such as: a relative, neighbour, business associate or personal friend); (c) is not receiving any form of, direct or indirect, remuneration for appearing before the Consumer Forum and files a written declaration to that effect; (d) demonstrates to the presiding officer of the Consumer Forum that he is competent to represent the party. (2) Every Agent or non-advocate or representative or social organisation shall adhere to the Code of Conduct specified in schedule I to these regulations.
In para 1.2 of the rejoinder affidavit it is stated by the complainants that initially the authorised representative (Mr. Raj Kumar) has filed his affidavit in support of the complaint which was sworn before the Oath Commissioner on 09.12.2016 but later on the complainants have filed their individual affidavits in support of the complaint which were sworn before the Oath Commissioner on 22.12.2016, which are on record at pages 13-C to 13-F. Since the complainants have filed their affidavits in support of the complaint, the complaint is deemed to have been filed by the complainants themselves. Therefore, the objection of the opposite party to that effect is rejected.
ORDER
In view of the aforesaid discussion, the complaint is partly allowed. The opposite party is directed to refund the entire amount deposited by the complainants with interest @ 9% per annum from the date of respective deposit till the date of realization after forfeiting 10% of the basic sale price within a period of 2 months from this order.