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Judgment
Dr. Inder Jit Singh, Presiding Member
The present Consumer Complaint (CC) has been filed by the Complainant(s) against Opposite Party (OP) as detailed above, inter alia praying for directions to the OP to:-
i. Refund amount of Rs. 90,42,000/- as principal amount received by OP
ii. To pay a sum in form of interest @ 18 % p.a. at minimum rate of interest on the entire amount deposited towards compensation for delay, till the refund of entire amount
iii. Not to deduct any TDS on Interest/ compensation
iv. Pay Rs. 5,00,000/- for mental harassment and agony caused due to acts/ omissions of OP
v. Pay a sum of Rs. 1,25,000/- towards cost of litigation
Notice was issued to the OP on 17.09.2018. Parties filed Written Statement/Reply and Evidence by way of an Affidavit and Written Arguments/Synopsis was not filed by OP as per details given in the Table at Annexure-A. The details of the flats allotted to the Complainant (s)/other relevant details, based on pleadings of the parties and other records of the case are also given in the Table at Annexure-A.
It is averred/stated in the Complaint that:
i. That the complainants on or about January 2013 vide an application form, applied for an allotment of residential plot and received an allotment letter of plot bearing no. D-161 of 200 sq. yd. in the said colony and paid the booking amount. That some of the clauses in the ABA are/were one sided, the allottees had to sign already prepared documents and some of the clauses contained therein were totally unreasonable and were in favour of OP only. The ABA was a fixed set of papers, which was asked to be signed by the allottees, including the complainants, and no modification was entertained by the OPs. On request to change the one-sided clauses, it was told that ABA 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 Complainants had to sign the agreement containing one sided clauses favouring the OP.
ii. That the OP issued allotment letter on 13.03.2013 for D-161, and later provided with another allotment letter for new plot bearing no D-156 dated 14.12.2013. The consideration amount of the said plot was fixed that is, Rs. 94,30,000/- and promised possession of the plot within 30 months (with grace period of 6 months) from the date of signing the Buyer’s agreement which is 21.12.2013.
iii. That the complainants have made a payment of Rs. 90,42,000/- but the possession has not been offered despite the lapse of more than 7 years. That the project is near no completion and this conduct of OP amounts to unfair trade practices, restrictive trade practices and also to gross deficiency in services. There are malpractices on part of OP to take money from buyers of plots to use it elsewhere and delay the project unreasonably for their wrongful gains, causing wrongful losses and injuries to complainants.
The OP in their written statement/reply stated that:
i. The OP is engaged in business of real estate development and township development and has been developing a plotted residential colony (hereinafter referred to as the “COLONY”) in the sector 92, 93, and 95, Gurgaon, Haryana. That the OP has made considerable progress in construction of said project and delay in handing over the possession of apartment was only on account of circumstances beyond the control of OP.
ii. That due to the change in zoning plan, the plot allotted to the complainants was changed to D-156 admeasuring 167.22 sq. mts. There was no change in dimensions but only the plot number. OP has not misappropriated any amount of money for its own benefit and have utilized the sum towards development and construction of project. That the complainants have filed the complaint with malafide intention and the intention behind purchase of the flat was merely an investment, for commercial gains. Therefore, complainants are not covered under definition of ‘consumer’.
iii. That the complainants were aware of the terms and conditions of the agreement and since OP has been prevented from various Force Majeure circumstances which were beyond the control of OP, OP is entitled to an extension of time for delivery of possession. That the timeline or any date mentioned in application is a tentative timeline and OP cannot be bound to the said timeline/ date. That time was never the essence as far as the delivery of flat is concerned.
iv. That there was delay in approval of revised demarcation of plot which was finally approved on 19.12.2014. That the delay was unforeseeable for reasons such as shortage of labour/workforce in the real estate market due to implementation of Government Programmes like NREGA, JNNURM, etc, acute shortage of water in NCR region, heavy shortage of supply of construction which caused considerable increase in cost of materials. That the complainants failed to adhere to the terms and conditions of application.
v. That as per clause 37, the dispute between the complainants and OP is bound to be settled by arbitration. The present compliant is liable to be dismissed on the ground of lack of pecuniary jurisdiction.
Heard counsels of both sides. Contentions/pleas of the parties, on various issues raised in the Complaint, based on their Complaint/Reply, Rejoinder, Evidence, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.
The committed date of possession as per agreement is within 30 months (with grace period of 6 months). OP has admitted the fact of delay and has stated that it is due to reasons beyond the control of OP and OP was prevented by various force majeure circumstances, hence OP is entitled to extension of time for delivery of possession. It has been further argued that time was not the essence as far as delivery of flat is concerned.
The contention of OP 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 Rs. one crore. The contention that complainant(s) are not a consumer as they have purchased the unit for commercial purpose is also rejected as no such evidence has been adduced by the OP in this regard. The plea of OP that delay was due to force majeure circumstances is not valid as even after a gap of more than 06 years from the committed date given in the ABA, 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 contention of the OP that the parties are bound by the agreement is also not acceptable. Hon’ble Supreme Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghvan (2019) 5 SCC 725 held that “a term of a contract will not be final and binding if it is shown that the flat purchasers had no option to sign on the dotted line, on a contract framed by the builder ......... the incorporation of one sided clause in an agreement constitute an unfair trade practice as per Section 2 (r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling flats by the builder ........., the appellant-builder cannot seek to bind the respondent with such one sided contractual terms.” Plea of the OP(s) for Arbitration as per conditions in the Agreement is also not accepted as the remedies under the Consumer Protection Act were in addition to the remedies available under special statue.
In the instant case, there is an inordinate delay in handing over the possession of flat by the OP. Even now OP is not in a position to give any firm timeline for delivering possession with OC. The complainant(s) cannot be made to wait for an indefinite time and suffer financially. Hon’ble Supreme Court in Wg. Cdr. Arifur Rahman Khan And Aleya Sultana and Ors. vs DLF Southern Homes Pvt. Ltd. & Ors. (2020) 16 SCC 512 and in Ireo Grace Realtech Pvt.Ltd. Vs. Abhishek Khanna & Anr. (2021) 3 SCC 241, held that failure of the developer to comply with contractual obligations to provide flats within contractually stipulated period would amount to deficiency in service. Hence, the complainant(s) in the present circumstances have a legitimate right to claim refund alongwith fair delay compensation/interest from the OP.
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 of with the following directions/reliefs: -
(i) The OP shall refund the entire principal amount of Rs. 90,42,000/- (Rupees Ninety lakhs forty two thousand only) to the complainant, along with 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 OP shall pay a sum of Rs.25,000/- as cost of litigation to the complainants.
(iii) The payment in terms of this order shall be paid within three months from today.
(iv) In case the complainant(s) 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 complainant would submit the requisite documents from the concerned bank(s)/financial institution(s) to the OP 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.