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Judgment
Subhash Chandra, Member
This is a complaint u/s 21 of the Consumer Protection Act, 1986 filed by the complainants on 05.04.2019 in respect of the flat booked by them with the opposite parties alleging deficiency in service and unfair trade practice on account of the delay in handing over possession of the flat in a project promoted and developed by the opposite parties seeking refund of the amount deposited along with penal interest and other compensation.
Briefly, the facts of the case are that the complainant had booked a flat in the project “The Corridors” promoted and developed by M/s Ireo Grace Realtech Pvt. Ltd., the Opposite party (OP in short), in village Dhumaspur, Maidwas, Tehsil, District Gurugram, Haryana on 22.03.2013 for their residential purpose. An offer of allotment letter was issued by the opposite party to the complainant on 07.08.2013 allotting flat no. 504, 5th Floor, C 6 Tower in the said project, admeasuring 1483.28 sq ft together with car parking for a total sale consideration of Rs.1,46,05,050.34/-. The complainants deposited Rs.1,42,19,747.23 towards this flat by way of instalments between 2013 to2016. As per clause 13.3 of the Apartment Buyers Agreement (in short ‘ABA’) signed between the parties the OP committed to offer possession of the flat within 42 months with an additional grace period of 180 days from the date of building plan approval, with a further extended delay period of 12 months from the expiry of grace period. Building plan approval was obtained on 23.07.2013. Possession was thus promised under clause 13.4 of ABA, failing which compensation at the rate of Rs.7.50 per sq foot of the super area was promised by the opposite party to the complainant. Complainant made repeated requests to the opposite party to hand over the possession. However, the opposite party has failed to offer possession of the flat booked by the complainant.
Hence, the complainant has sought full refund of the deposited amount and other reliefs from the opposite party as per the following prayer:
(i) Direct the opposite party to pay a sum of Rs.1,65,64,122/- including the deposited amount of Rs.1,43,19,747.23 and Rs.22,44,375/- towards interest paid by the complainant to bank till date;
(ii) To pay future interest and pendent lite interest @ 20% per annum on the aforesaid amount from the date of filing of present complaint till its realisation; and
(iii) To pay a sum of Rs.25,44,375/- as compensation as per the clause 13.5 of the agreement between the parties.
The opposite party has contested the complaint by way of reply and affidavit in evidence. It is contended by him that the complaint was premature as the period of 48 months needs to be calculated with effect from 27.11.2014, the date on which the fire safety scheme was approved as per clause 13.3 of the ABA. It is also averred that the complainant is not a “consumer” since he had booked the flat for speculative gains. OP further stated that construction has been completed and Occupancy Certificate (OC) has been obtained and notice of possession issued to the complainant therefore, there was no deficiency in service involved. It is contended that the complaint was motivated as complainant was finding it difficult to pay instalments to the OP and despite changing the payment plan at his request the complainant was unable to pay instalments.
It is contended by the opposite party that there is no cause of action to file a complaint in the year 2019, for the refund of money which was alleged to be paid in the year 2016. The complaint being without any just, tenable or substantial cause of action is liable to be dismissed on this ground alone. It is also submitted by the opposite party that construction of the apartment is complete, occupation certificate has been granted and the notice of possession has been offered on 17.06.2019.
We have heard the learned counsel for the complainant and perused the records carefully. The learned counsel for the opposite party after seeking adjournments on several occasions, again prayed for time on the grounds of non-availability of the senior counsel, even though the party was represented by a law firm with other advocate on record. None appeared even after a short adjournment to argue the case. Arguments were therefore, heard on behalf of the complainant who submitted that the complaint was squarely covered by a judgment of the Hon’ble Apex Court. The reply and affidavit in evidence filed by the opposite party was therefore, considered as the final arguments.
Learned Counsel for the complainant 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 when 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 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 and also that in view of an absence of an OC or offer of possession, the right of the complainant to refund with compensation cannot be denied.
The facts of the case are that the opposite party had through clause 13.3 of the ABA committed to handing over possession after 42 months with further period of 6 months as the ‘Grace Period’. It is an admitted fact that the complainant had continued to make deposits of various instalments with the opposite party between 2013-16. Offer of possession is however offered on 17.06.2019 which is after the date for this offer as claimed by the complainant October 2017 and that averred by the opposite party 27.11.2018.
The opposite party has not been able to substantiate its averment that the complainant is 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). As regards the issue whether the complainants are engaged in booking of this flat for a “commercial purpose”, it has been settled by the Hon’ble Supreme Court in Laxmi Engineering Works vs P S G Industrial Institute (1995) 3 SCC 583 that commercial purpose has to be defined from case to case which has not been done in the instant case. Mere booking of multiple units of flats in itself does not constitute commercial purpose. 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).
In the instant case, the occupation certificate dated 31.05.2019 has been obtained by the opposite party in respect of Tower C 6 in which the subject flat is located. Vide IA No. 1797 of 2022 the complainant has prayed for handing over the possession of the same in terms of the order in the case of Abhishek Khanna (supra). As per this case, the Hon’ble Apex Court has stipulated that the allottee-complainant is obligated to take possession, in case the opposite party has obtained occupation certificate and made an offer of possession.
As per Abhishek Khanna (supra), in cases where possession has been offered in the same project, the complainant is obliged to accept possession with compensation of simple interest @ 9% for the period of delay in offer of possession from the stipulated date of possession as per the ABA, i.e. 27.11.2018, till the date of offer of such possession i.e., 13.06.2019. As the complainant has also relied upon this judgement and sought relief on the ground that the present matter is a ‘covered’ matter, we, find no reason to consider the matter otherwise. It is accordingly ordered that:
i. The opposite party shall hand over the possession to the complainant within three months from the date of receipt of this order subject to payment of the necessary statutory dues including stamp duty;
ii. The opposite party shall pay compensation for the delay from 27.11.2018 till the date of offer of possession, i.e., 17.06.2019 @ 9% simple interest on the total amount deposited to the complainant.
With these directions, the consumer complaint stands disposed of.