AI Structured Summary
Not yet generated for this judgment
Judgment
Dr. Inder Jit Singh, Member
The present Consumer Complaints (CC) have been filed by the Complainants against Opposite Parties as detailed above, inter alia praying for: -
i. to direct the Opposite Parties to pay the Complainants the principal amount deposited by them along with interest @ 18% per annum, till the date of actual realization thereof;
ii. to pay the interest amount w.e.f. the respective dates of various payments made by the Complainants to the OPs, calculated till 30-09-2018 and thereafter further future interest amount at the rate of 18% per annum till the date of actual realization of the principal amount with total interest amount;
iii. to pay the amount paid by the complainants to the Bank as interest amount for the housing loan taken by them along with interest thereupon from the respective dates of payment of each EMI, which also included the interest component, as the rate of 18% p.a. till the actual realization thereof;
iv. to direct the opposite parties a sum of Rs.5.00 lakh as compensation for the harassment and hardship caused to Complainants;
v. to pay litigation expenses to the complainants and any other directions the Commission deems fit and proper in the facts and circumstances of the case in favour of the complainants.
Since the facts and question of law involved and the reliefs prayed for in these complaints are similar/identical and against the same Opposite Parties except for minor variations in the dates, events and flat numbers etc., which are summarized in the Table in para 7 below, these complaints are being disposed off by this common order. However, for the sake of convenience, Consumer Complaint (CC) No. 2247 of 2018 is treated as the lead case and facts enumerated herein under are taken from CC/2247/2018.
Notice was issued to OPs on 11.10.2018 with directions to file their Written Statement within a period of 30 days.
It is averred/stated in the Complaint that: -
i. The Complainants booked a residential Apartment in the city of Bangalore in the Project of OPs ‘Nitesh Cape Cod’flat No. C-1102, 11th Floor, Block-C, Tower-1.
ii. Construction Agreement and Agreement to Sell dated 22.03.2012 was executed between the Complainant and OPs for a total consideration of Rs.92,46,570/-.
iii. The proposed date of possession was within a period of 30 months plus grace period of 6 months from the date of receiving the Commencement Certificate, i.e., 26.06.2013.
iv. In consonance with the understanding that the OP-1 undertook under the Construction Agreement to pay applicable interest on the loan taken by the Complainants from the HDFC for a period upto 24.03.2012. Later OP-1 stopped paying interest on the loan amount from April 2014.
v. The period of 36 months stood expired on 25.06.2016. But the possession was not given. The Complainants sent a Legal Notice dated 01.08.2018 to the OPs for refund of the entire amount with interest @18% from the respective dates of deposit till date of realization, but the OPs failed to do so, hence , this Complaint has been filed.
The OPs in their written statement/reply stated that: -
i. That the complaint u/s 21 (a) (i) is not maintainable and ought to be rejected at the very threshold and this Commission has no pecuniary jurisdiction to entertain this case.
ii. The OPs also submit that the OPs-2 to 6 are not necessary parties in the present Complaint and therefore the Complainants be directed to delete them from the array of parties.
iii. The OPs submit that they are developing the project by virtue of entering into a Joint Development Agreement (JDA) with the land owners of the project land.
iv. The OPs pleaded that the construction contractor, i.e., M/s Simplex Infrastructure Ltd., appointed by OP-1 to complete the construction work on the Nitesh Cape Cod Project violated the terms of its contract with the OP-1 and refused to complete the construction. OP-1 contended that vide letter dated 12.07.2018 and 06.09.2018 informed the apartment buyers of this delay. Due to delay from the construction contractor and despite the extensions in time given by OP-1, time and again the construction contractor failed to abide by the terms of the contract and failed to complete the construction work and thereby delayed the work at the project site. Hence, the OP-1 terminated the contract with the construction contractor and OP-1 was compelled to look for a new contractor which took considerable time.
v. The delay caused by these factors which were akin to force majure was totally out of control of OP-1.
vi. The OPs further contended that as per Clause 5.8 of the Construction Agreement dated 22.03.2012, in case the flat buyer cancels the agreement, the Builder is entitled to forfeit 18% of the amount collected and refund of the balance amount if any will be made within 180 days from the date of termination or resale of the flat whichever is later.
vii. It is also contended by the OPs that OPs have not misrepresented the Complainants and in fact the Complainants being impressed by the project and its location have voluntarily booked the apartment by signing the agreements. OPs also denied any unfair trade practice alleged by the Complainants.
Complainants in their rejoinder dated 18.11.2019 to the reply filed by OPs, have denied various averments of the OPs and reiterated most of the pleas/contentions as stated in the Complaint.
Evidence by way of an Affidavit was filed by the complainant and OPs broadly on the lines of averments made in their respective complaint/reply. Written Synopsis was also filed by the Complainants. The details of the flats allotted to the Complainant/other relevant details of the case are given in the Table below:-
Sr No
Particulars
Case No/ Complainant
Case No/ Complainant
CC/2247/2018
Lt.Col.(Retd.)Sujeet Kumar Sinha & Anr.
CC/91/2019
Shilpa Bhandari Pinto
1
Project Name/Location etc
‘Nitesh Cape Cod’
Bangalore
‘Nitesh Cape Cod’
Bangalore
2
Apartment no
C-1102, 11th Floor, Block-C, Tower I
B-0903, 9th Floor, Block-B, Tower-I
3
Size (Built up/Covered/Super Area)
1664.807 sq.ft.
1684.66 sq.ft.
4
Date of application
12.01.2012
04.12.2011
5
Date of signing Agreement to Sell
22.03.2012
06.06.2013
6
Committed date of possession as per ABA/BBA (with Grace period, if any)
25.06.2016
28.02.2016
7
Total Consideration
Rs.92,46,570/-
Rs.86,13,849/-
8
Amount Paid
Rs.83,23,133/-
Rs.81,62,979/-
9
D/o Filing CC in NCDRC
05.10.2018
15.01.2019
10
D/o Issue of Notice to OP(s)
11.10.2018
09.04.2019 to (OP-1 &
2)
11
D/o Filing Reply/Written Statement by OPs
22.05.2019 (OP-1-6)
18.12.2019
(OP-1)
12
D/o filing Rejoinder by the
Complainant
18.11.2019
21.01.2020
13
D/o Filing Evidence by way of
Affidavit by the Complainant
18.11.2019
10.01.2020
14
D/o Filing Evidence by way of
Affidavit by the OPs
09.02.2021(OP-1,3 & 6)
09.02.2021 (OP-1,3 &6)
15
D/o filing Written Synopsis by the
Complainant
15.01.2021
15.01.2021
Heard counsels of both sides.
The contention of OPs 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 Rupees one crore. The OPs have failed to deliver the possession of the unit to the complainant till date and therefore, the cause of action is continuing. The plea of OPs that delay was due to force majeure circumstances is not valid as even after a gap of more than six years from the committed date given in the Agreement, 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 complainants cannot be made to suffer for faults of the contractor engaged by the OPs.
In the instant case, there is an inordinate delay in handing over the possession of flat by the OPs. 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 OPs.
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: -
CONSUMER COMPLAINT NO. 2247 OF 2018
(i) The OPs shall refund the entire principal amount of Rs.83,23,133/- (Rupees eighty three lakh twenty three thousand one hundred thirty three only) to the complainants, 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 OPs shall pay a sum of Rs.25,000/- as cost of litigation to the complainants.
(iii) The liability of the OPs shall be joint as well as several.
(iv) The payment in terms of this order shall be paid within three months from today.
(v) In case the complainants 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 complainants would submit the requisite documents from the concerned bank(s)/financial institution(s) to the OPs within four weeks from receipt of this order to enable them to issue refund cheques/drafts accordingly.
CONSUMER COMPLAINT NO. 91 OF 2019
(i) The OPs shall refund the entire principal amount of Rs.81,62,979/- (Rupees eighty one lakh sixty two thousand nine hundred seventy nine only) to the complainants, 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 OPs shall pay a sum of Rs.25,000/- as cost of litigation to the complainants.
(iii) The liability of the OPs shall be joint as well as several.
(iv) The payment in terms of this order shall be paid within three months from today.
(v) In case the complainants have taken loan from Bank(s)/other financial institution(s) and the same/any portion of the same isstill 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 complainants would submit the requisite documents from the concerned bank(s)/financial institution(s) to the OPs within 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.