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Judgment
Subhash Chandra, Member
This complaint is filed u/s 21 (a) (i) of the Consumer Protection Act, 1986 in respect of the flat booked by the complainants in a project promoted and developed by the opposite parties alleging deficiency in service and unfair trade practice resulting in delay in handing over possession of the flat and seeking refund of the amount deposited along with penal interest and other compensation.
The brief facts of the case are that the complainant had booked a flat in the project ‘The Corridors’ promoted and developed by the Opposite party viz. Ireo Grace Realtech Pvt. Ltd. located on Golf Course Extension Road, Sector 67 A, Gurgaon, Haryana on 21.02.2013 for her residential purpose for a total sale consideration of Rs. 2,15,24,609.98 and paid Rs 15,00,000/- as earnest money to the opposite party. This was followed by another deposit of Rs 23,11,474/- on 18.05.2013 and further instalments subsequently. An allotment letter was issued by the opposite party to the complainants on 07.08.2013 allotting flat no. CD-A5-07-702, i.e. flat number 702 on the 7th Floor of Tower A5 in Cluster A ad-measuring 1966.61 sq ft. The complainants deposited Rs. 1,35,43,150.89 towards this flat by way of several instalments between February2013 and to December 2016. An Apartment Buyer’s Agreement (in short ‘the ABA’) was entered into between the complainants and the opposite party on 18.12.2013. As per clause 13.3 of the ABA, the opposite party committed to offer possession of the flat within 42 months i.e. by 22.08.2016 with an additional grace period of six months failing which compensation at the rate of Rs.7.50 per sq foot was promised by the opposite party to the complainant. This ABA was subsequently unilaterally revised by the opposite party on 14.03.2014 (executed on 03.06.2014) by which time the complainants had cumulatively paid Rs 66,05,148/- towards the said flat. As per this revised ABA the rate per square foot of the flat was revised from Rs 8750/- per sq ft to Rs 9400 per sq ft. However, possession of the said flat was not offered by the opposite party till the date of filing of the complaint. On 03.09.2016 the complainants received a letter dated 04.08.2016 from the opposite party intimating revision of plans in the project. Hence, the complainants decided to opt out of the project. They have approached this Commission alleging deficiency in service and unfair trade practice by the opposite party in not adhering to the committed date of handing over possession and imposing entirely one sided conditions in the ABA that are in favour of the opposite party which the complainants as a consumer were unable to contest and were compelled to accept as considerable amounts had been deposited with the opposite party by then. A legal notice was served to him on 01.11.2016. It is alleged that the opposite parties failed to meet the planned milestones, changed the plans and pace of work and unilaterally altered the basic rate at which the flat was promised to be sold. The complainants are now before us with the following prayer:
(i) Direct the opposite parties to immediately provide to the complainant (s) a 100% refund of the entire amount paid by the complainant (s) till date, along with a penal interest of 18% per annum from the date of receipt of each payment made to the opposite parties;
(ii) Direct the opposite parties to immediately withdraw all outstanding demands raised to the complainant (s) as well as delayed payment interest @ 20% per annum plus GST that the opposite parties are demanding;
(iii) Direct the opposite parties to pay compensation and exemplary damages of Rs.15,00,000/- to the complainant (s) for excessive mental agony, physical and mental harassment, discomfort and undue hardships caused to the complainant (s) as a result of the above acts and omissions on the part of the opposite parties;
(iv) Direct the opposite parties to pay a sum of Rs.2,00,000/- to the complainant (s) towards cost of litigation;
(v) Direct the opposite parties to pay a sum of Rs.1,00,000/- per month to the complainant (s) towards rental charges for each month of delay in possession by the opposite parties;
(vi) Direct the opposite parties to immediately stop, withdraw and refrain from their regular coercive actions, techniques and practices threatening the complainant (s) of dire consequences of forfeiture of total amount paid till date, cancellation of allotment of unit and charge of penal interest of 20% per annum plus GST; and
(vii) That any other and further relief in favour of the complainant, Hon’ble Commission may deem fit and proper in the facts and circumstances of the case.
The opposite party has contested the complaint by way of Reply. It has opposed the complaint stating that this Commission lacks jurisdiction in the matter in view of fact that the complaint seeks to amend/modify the terms of the contract between the parties as it cannot modify the agreement between the parties and relief has to be provided only within the purview of Section 14 of the Consumer Protection Act, 1986; the complainants are not a ‘consumer’ within the meaning of Section 2 (1) (d) of the Act as they reside in Jaipur and have booked the flat only to speculate in real estate; the issues are contractual in nature and can be tried only in an appropriate civil court and not in this Commission. It is contended that the complainants defaulted on payments and had to be reminded for making payments. The revised rate of the flat was agreed to by the complainants after understanding the terms and conditions and hence they could not contest the same. In view of the revised ABA the period of 42 months and 6 months of grace would expire only on 27.11.2018.
On merits, the complainant denies the averments of the complainants as being misleading and untrue. The allegation of unfair trade practice is countered as not being one-sided or coercive but rather one that was with the full knowledge and consent of the complainant. Deficiency in service is also denied as the revised date of making an offer of possession is 27.11.2018. The complaint itself, according to the opposite party, is premature. It is also contested that there had been no construction activity for a year and half from January, 2015 to June 2016 or that it would take another couple of years for the project to be handed over in a liveable condition. It is stated that the decisions of this Commission cited are wrongly relied upon by the complainants as they do not apply.
Parties filed written synopsis of arguments. We have heard the learned counsel for the complainants and perused the records. The learned counsel for the opposite party after seeking adjournments on several occasions, again prayed for time on ground of non-availability of the senior counsel, even though the party is represented by a law firm with other advocates on record. None appeared even after a short adjournment on behalf of the complainant to argue the case. Learned counsel for the complainant submitted that the complaint was squarely covered by a judgement of the Hon’ble Apex Court. Arguments were therefore heard on behalf of the complainants. The reply filed by the opposite parties was considered as its final arguments.
The admitted facts of the case are that the complainants had booked the flat in question with the opposite parties on 21.02.2013 for a sale consideration of Rs 2,15,24,609.98/-. Flat no CD-A5-07-702 was allotted to the complainants vide allotment letter dated 07.08.2013 issued by the opposite party. A total amount of Rs 1,35,43,151/- had been paid as per instalments based upon the Instalment Payment Plan by the complainants to the opposite party as on the date of the complaint. The ABA entered into between the parties on 18.12.2013 wherein through clause 13.3 the opposite party had committed to 48 months as the date of handing over of the possession of the flat including a period of 6 months as the ‘Grace Period’ was revised on 14.03.2014 with the same stipulations. It is also an admitted fact that the complainants had continued to make deposits of various instalments with the opposite party between the date of booking and filing of the complaint. No notice for cancellation of booking on this ground was issued by the opposite party. The opposite party also admits that the construction of flat no. 702 in Tower A5 has not been completed as on the date of filing of complaint. Accordingly, neither an occupancy certificate is available nor a letter of offer of possession has been issued by the opposite party to the complainant.
Learned Counsel for the complainants has relied mainly on the judgement of the Hon’ble Supreme Court in Ireo Grace Realtech Pvt. Ltd., Vs Abhishek Khanna (2021) 3 SCC 241 dated 11.01.2021 which relates to the same project of the opposite party, i.e., ‘The Corridors’, Sector 67 – A Gurgaon, Haryana. It is his averment that as per this judgement, the Hon’ble Apex Court has taken cognizance of the fact that the project had both completed and incomplete/un-commenced towers in Phases I and II of the project. Based on the fact that the occupancy certificate from the statutory authority was available only in respect of certain towers on the date the case was filed and noting the fact that the builder-opposite party had not commenced/completed other towers in Phase II, the Apex Court had balanced the interests of both the consumer complainants and the builder-opposite parties by (a) equitably allocating the obligations for a full refund of payment to be made with penal interest to the allottees in the case of incomplete/un-commenced flats for the interregnum between the committed date and the date of making of the offer of possession by the opposite party and (b) the obligation to accept possession where the complainants had prayed for possession to be made with compensation for the delay in the case of flats/towers where construction was completed and occupancy certificate was available. In doing so the Hon’ble Apex Court reiterated the law with regard to the right of the consumer to seek refund in view of the inordinate delay on the part of the opposite party as laid down in Pioneer Urban land and Infrastructure Ltd., vs Govindan Raghavan in Civil Appeal no. 12238 of 2018 decided on 02.04.2019 (2019) 5 SCC 725. It has also reaffirmed that “It would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession” as laid down in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, Civil Appeal No. 3182 of 2019 decided on 25.03.2019.
The opposite party has contested the averments of the complainants on the grounds that the complainants are not a ‘consumers’ as per section 2 (1) (d) of the CP Act, 1986 since they are a residents of Jaipur and had only invested in the flat in order to speculate in real estate. It is also argued that this Commission lacks jurisdiction to amend/ modify/ re-write the terms of the agreement and that it lacks jurisdiction to hear the matter or to grant any relief beyond the scope of Section 14 of the CP Act, 1986. With regard to the argument that the case was covered by the judgement of the Hon’ble Supreme Court in Ireo Grace Realtech Pvt. Ltd., Vs Abhishek Khanna (supra), it is submitted by the opposite party that in view of an occupancy certificate dated 27.01.2022 being available for Tower A5 and an offer of possession dated 16.02.2022 the complainant is obligated to take possession of the flat.
An occupancy certificate dated 27.01.2022 has indeed been filed by the opposite party which includes Tower A 5 of the project. However, there is no offer of possession filed which is stated to have been made to the complainant. The document dated 16.02.2022 filed relates to another allottee in another tower (flat 404 in Tower C 9). The submission that an offer of possession has been made is, therefore, not acceptable. It is contended by the complainants that a period of 48 months from 27.11.2014 including the grace period of 6 months expired on 27.11.2018. The opposite party, however, contends that the period of 48 months needs to be calculated as per the revised ABA from 27.11.2014, which according to the opposite party would be 27.11.2018.
The opposite party has not been able to substantiate its averment that the complainants are not a ‘consumer’, the onus of which is squarely upon him in terms of Kavita Ahuja Vs. Shipra Estate Ltd. & Jai Krishna Estate developers Pvt. Ltd. & Ors. I (2016) CPJ 31 (NC). The arguments that there was no promise of a service amounting to deficiency in service and misrepresentation constituting an unfair trade practice do not hold water as these issues stand settled in Ireo Grace Realtech Pvt. Ltd., Vs Abhishek Khanna (supra) as well as in Pioneer Urban Land Infrastructure Ltd., vs Govindan Raghavan (supra). The principle of equity of obligations has been laid down by the Hon’ble Supreme Court in Abhishek Khanna (supra) in the very same project of the opposite party. In view of the settled position, the opposite party cannot deny the complainants their right to a full refund or to be kept waiting indefinitely.
We have gone through the order of the Hon’ble Supreme Court in Ireo Grace Realtech Pvt. Ltd., (Supra) and we are satisfied that the current appeal/ complaint is covered by this judgment as it relates to the same project in which the complainant had booked its flat and the Hon’ble Supreme Court has ordered full refund with interest from the date of the promise of offer of possession till repayment. As this is a covered case, we consider it appropriate to allow the complaint with the following directions:
(a) Opposite Party shall repay the full amount (Rs.1,35,43,151/-) deposited by the complainant as on 27.11.2018, the date of committed possession, along with simple interest @ 9% p.a. thereon till the date of payment;
(b) Opposite party shall pay litigation costs of Rs.50,000/- to the complainant;
(c) Order to be complied within 3 months of the receipt of the certified copy of the order;
(d) Opposite party shall be liable to pay a penal interest of 12% simple interest p.a. in case of default.
With these directions, the consumer complaint stands disposed of.