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Judgment
Dr. Inder Jit Singh, Member
The present Consumer Complaint(CC) has been filed under Section 21, 22 read with Section 12 of the Consumer Protection Act,1986 (in short “the Act”) by Association of Flat Buyers in SRS Royal Hills Project, Rewari (Complainant) on behalf of 51 Complainants who have been allotted flats in the project of Opposite Parties M/s SRS Real Infrastructure Limited & Anr. (hereinafter referred to as Opposite Parties), having proposed Towers namely A, B & C, of 1200 sq.ft. having basic sale price (BSP) of Rs.26,99,000/-, 1400 sq.ft. having (BSP) of Rs.36,99,000/- and 1665 sq.ft. having BSP of Rs.32,99,000/- plus development charges (DC) of Rs.324 per sq.ft. in each case. The present complaint is for delay in offer of legal possession of the flats, inter alia praying for:-
i. Permission Under Section 12(1)(c) of the Act to jointly present the instant Complaint
ii. To direct OPs to refund the total amount paid by the buyers to OPs along with 24% p.a. interest.
iii. Rs. 5,00,000/- as compensation towards harassment and mental agony to the buyers.
iv. Refund on account of loss of rent paid by each buyer, from committed date of possession to actual realization @ Rs.8,000/-, Rs.10,000/-, Rs.12,000/- per month to the buyers, who booked flats in Tower-A, B & C respectively.
v. Rs. 5,00,000/- towards cost of litigation.
Notice was issued to the OPs on 22.01.2018 giving them 30 days’ time to file written statement. On 07.05.2018, when the case was listed, no one appeared on behalf of OPs despite service of notice on 22.03.2018. Even the written statement was not filed within the stipulated period of limitation, including the extendable period. Both the OPs were therefore, proceeded ex-parte and their right to file written statement was closed. The present complaint has been admitted under Section 12(1)(b) of the Act. On 24.08.2018 and on subsequent hearings also when case was listed, no one appeared on behalf of OPs.
It is averred/stated in the Complaint that: -
i. The Complainant is a registered Association of aggrieved flat buyers of SRS Royal Hills Project, Rewari and the present complaint has been filed for and on behalf of its members (hereinafter referred to as ‘Buyers’) as class action. The Buyers, though unrelated, are jointly filing the complaint as they fall within the ambit of Section 2(b) r/w Section 2(d) and 2(m) of the Act. The Buyers have booked their flats in the same project and therefore have the same grievance against the wrongful acts and omissions on the part of OPs, including deceptive and unfair trade practices and deficiency in services, hence they are entitled to file the present complaint jointly through the Complainant Association for the common benefit of all the buyers all of whom are having similar cause of action, interest and grievance. The terms and conditions of allotment are same and Buyers rely on identical evidence. Along with the complaint, list of 51 Buyers has been filed. Subsequently, Buyer at serial No. 45 named Mr. Vinod Kumar was deleted and 6 more Buyers were impleaded.
ii. OP gave several advertisements about the project in 2011-12. Buyers, allured by such advertisements and various promises made therein, booked flats in the said project of the OPs and deposited the booking amount. The Buyers Agreements were signed after much delay, and most of the Buyers paid more than 90% of the total cost.
iii. The buyers had to sign already prepared documents and some of the clauses contained therein were totally unreasonable and were in favour of OPs only (Complete copies of three separate Agreements pertaining to bookings made in Tower A, B and C were filed, table showing the total amount paid by each buyer against the total cost of the flat was also filed).
iv. The Flat Buyers Agreement was a fixed set of papers, which was asked to be signed by the allottees, and no modification was entertained by the OPs. On request to change the one-sided clauses, it was told that FBA has to be signed as it is and in case it is not acceptable, then the allotment will stand cancelled and earnest money will be forfeited. Seeing no option, the buyers had to sign the Flat Buyers Agreement containing one sided clauses favouring the OPs only.
v. It is further averred that the OPs abandoned the construction mid-way and there is significant delay in granting possession of the flat. As per Flat Buyers Agreement, OPs were bound to give possession of the apartment to Buyers by January 2017, till date the construction is not completed and possession has not been handed over. Hence OPs are deficient in rendering services. OPs have played a mischief with buyers by giving a different date of completion of tower to each buyer, the same tower cannot have different dates of completion for different buyers.
vi. The Buyers does not now wish to reside in the apartment even if the OPs deliver the possession of the same to them in the near future. Hence the complainant wishes for the return of the money along with interest so that Buyers can purchase another house. The buyers are suffering from the tremendous financial losses as they are forced to live in rented accommodation/pay EMIs without getting the benefit of the flats.
vii. It is alleged in the complaint that the act and omission of the OPs falls under the definition of unfair trade practices and restrictive trade practices within the ambit of Consumer Protection Act, 1986 for which buyers should be adequately compensated. There are malpractices on the part of OPs to take money/s from the buyers and use it elsewhere and delay the project unreasonably for their wrongful gains causing wrongful losses and injuries to buyers including the complainant.
viii. Buyers were requested to choose one of the two payment options viz ‘Down payment plan’ or ‘Construction linked installment plan’ and both the plans were so devised that substantial part of that payment was taken within 45 days of booking/ allotment in case of former plan and 120 days in case of latter plan.
ix. It is also alleged that the OPs have used sub-standard and low quality construction material and have failed to provide facilities and amenities promised in their advertisement brochures.
In the following table, facts of three cases, one from each of the Towers A, B,&C, complete agreement copies of which were filed with the complaint are listed.
Sr No
Particulars Mr.Ajit Singh& Anr.
Daya Gupta & Anr.
Mrs Nirmala Aggarwal & Anr.
1
Project Name/Location etc
SRS Royal Hills, Sector 26,Rewari Haryana
SRS Royal Hills, Sector 26,Rewari
Haryana
SRS Royal Hills, Sector 26,Rewari Haryana
2
Apartment no
Flat no.1005, Floor 10th , Tower-A
Flat
No.P01,Podium floor Tower-B
Flat
No.PO1,Podium floor,Tower-C
3
Super built up area
1200 sq.ft.
1400 sq.ft.
1665 sq.ft.
4
Date of allotment
08.08.2012
05.09.2012
07.03.2014
5
Date of signing FBA
08.08.2012
05.09.2012
07.03.2014
6
Committed date of possession as per FBA (with Grace period, if any)
08.02.2017
05.03.2017
07.09.2018
7
Total Consideration
BSP Rs.26,99,000/-
plus DC @ Rs.324 per sq.ft.
BSP Rs.36,99,000/-
plus DC @ Rs.324 per sq.ft.
BSP Rs.32,99,000/-
plus DC @ Rs.324 per sq.ft.
Evidence by way of an Affidavit was filed by the complainant broadly on the lines of averments made in their respective complaint. Written Synopsis was also filed by the Complainant in which it relied upon various judgements of this commission and Hon’ble Supreme court in support of their case.
Heard counsels for Complainant.
In the instant case, there is an inordinate delay in handing over the possession of flat by the OPs. OPs have failed to fulfil their contractual obligations of completing the construction and delivering the possession of flats to the Buyers as per provisions of the FBA(s) signed with them. OPs have not even bothered to enter appearance, file written statement/evidence etc. to contest the case, counter the facts as pleas taken by the Complainant, or appraise this Commission about the status of the said project/ it’s likely completion date etc. The Buyers cannot be made to wait for an indefinite time and suffer financially. Hence, the Buyers 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 Complainant, various judgements of this commission and Hon’ble Supreme court covering issues, pertaining to inordinate delay in delivery of possession, deficiency of service and unfair trade practices on the part of developers, right of allottees to seek refund in case of delay in possession and delayed compensation in terms of interest on the amount paid etc., the Consumer Complaint is allowed/disposed off with the following directions/reliefs: -
i. The OPs shall refund the entire principal amount paid by each of the Buyer in the said project who are covered in the present complaint, 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 each of the buyer based on receipts etc.
ii. The OPs shall pay a sum of Rs.50,000/- as cost of litigation to the complainant (viz Association who filed the case on behalf of its members and not to each of the Buyers).
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 Buyers 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 Buyers. The Buyers would submit the requisite documents from the concerned bank(s)/financial institution(s) to the OP(s) four weeks from receipt of this order to enable them to issue refund cheques/drafts accordingly.
The pending IAs, if any, also stand disposed off.