Nanita Chopra & Anr vs Athena Infrastructure Ltd. & Anr

Subhash Chandra,  Member

This complaint has been filed under section 21 (a) of the Consumer Protection Act, 1986 (in short, the ‘Act’) alleging deficiency in services and unfair trade practice in respect of the residential apartment booked by the complainants with the opposite party.

In brief, the facts of the case are that the complainant had booked a residential flat in the project ‘Indiabulls Enigma’, Sector 110, Gurgaon, Haryana being developed and executed by the opposite party on 02.12.2011 by paying a booking amount of Rs 5,00,000/-. On 15.02.2012 he was provisionally allotted a 4 BHK plus servant quarter unit, number 112, 11th floor in Block B by the opposite party for a sale consideration of Rs 1,89,40,251/- inclusive of all charges. A Flat Buyer’s Agreement (in short, ‘Agreement’) was signed between the complainant and the opposite party on 16.02.2012 and as per the Agreement possession was promised after 3 years with a grace period of 6 months i.e. by 16.08.2015 which the opposite party has failed to do despite payment of Rs 1,79,60,139/- or nearly 95% as on 16.02.2012 by the complainant. The complainant had opted for the construction linked plan which included a loan @11.5% rate of interest from Indiabulls. As on 01.05.2017, the date of filing of this complaint, there is no occupancy certificate or offer of possession in respect of the said apartment. It is averred by the complainant that at the time when the Agreement was executed after booking of the apartment, the complainant had already paid Rs.1,79,60,139/- and he was therefore not in a position to contest the one sided agreement loaded in favour of the opposite party since it included a clause that 15% of the amount would be forfeited in case of cancellation as Earnest Money. Such a one-sided Agreement which was executed under compulsion is an example of unfair trade practice. It is also averred that though clause 21 of the Agreement promised construction in 42 months, the opposite party did not have a licence as on the date of accepting the booking which was not disclosed and was therefore constitutes an unfair trade practice. Despite the promised handover of the apartment in August 2015, there was no progress and several efforts were made by the complainants between September 2015 and December 2016 with the opposite party to expedite possession which were of no avail. He is therefore before us with the following prayer:

(a) Direct the opposite parties to hand over possession of apartment to the complainants, complete in all respects and in conformity with the flat buyers agreement, with all additional facilities and as per quality standards promised and execute all necessary and required documents in respect of the said apartment in favour of the complainants within 8 months of this petition being filed before this Hon’ble Commission or as directed by this Commission;

(b) Direct the opposite parties for an immediate 100% refund of the total principal amount paid by the complainants, along with a penal interest of 18% per annum from the date of the receipt of the payments made to the opposite parties, in case the opposite parties cannot deliver or fails to deliver the absolute, complete and final possession of the flat within a period of 8 months of this petition being filed before this Hon’ble Commission or as directed by this Hon’ble Commission;

(c )   Direct the opposite parties to pay interest @ 12% per annum on the amount deposited by the complainants with the opposite parties, with effect from August 2015, i.e., date when possession was promised, till the date of actual possession as per clause (i) above is handed over by the opposite parties along with all necessary documents and common area and facilities as promised during the initial booking made by the complainants;

(d) Direct the opposite parties to refund wrongfully charged taxes, which includes but not limited to service tax, and other charges along with the interest on that amount at that rate of 18% from the date of receipt of such wrongfully levied charges and taxes;

( e)   Direct the opposite parties to pay Rs.9000/- per day to the complainants, in case of failure to provide the possession by the stipulated date as directed by this Hon’ble Commission;

(f)  Direct the opposite parties to pay compensation of Rs.30,00,000/- to the complainants for mental agony, harassment, discomfort and undue hardships caused to the complainants as a result of the above acts and omissions on the part of the opposite parties;

(g) Direct the opposite parties to pay a sum of Rs.2,00,000/- to the complainants towards litigation costs; and

(h) Pass any other and/ or further relief in favour of the complainant (s) as the Hon’ble Commission may deem fit and proper in the facts and circumstances of the case.

The opposite party has resisted the complaint by way of reply and written statement. The opposite party has taken preliminary objections to the complaint on the grounds that complainant is not a ‘consumer’ within the definition of section 2(1)(d)(ii) of the Act as they are residents of Pune and has invested in the subject flat for speculative purposes; that this Commission lacks jurisdiction in view of the Agreement providing for arbitration and that there has been no deficiency in service as the project. Unfair trade practice is also denied. The averments of the complainant have been denied and it has been contended that the complainant is not entitled to claim refund of her deposit with compensation as per clause 19 of the agreement. It is submitted that the complainant opted for the ADF scheme which required deposit of 95% of the sale consideration within 90 days of booking. Reliance has been placed on Jagmittar Sain Bhagat Vs. Director, Health Services, Haryana & Ors in (2013) SC 0703 dated 11.07.2013, Madan Kumar Singh (D) thr LR Vs. District Magistrate, Sultanpur & Ors. (2009) SC 1407 dated 07.08.2009 and Morgan Stanley Mutual Fund Vs. Kartick Das (1994) 4 SCC 225. It is contended that the complainants are not entitled to compensation or relief since they are defaulters in terms of Bangalore Development Authority Vs. Syndicate Bank (2007) 6 SCC 711 and that the parties are bound by the terms of the contract as per Bharathi Knitting Company Vs. DHL Worldwide Express Courier in (1996) 4 SCC  704 dated 09.05.1996 wherein it was held that an agreement between parties was binding and could not be described as being one-sided. It has been submitted that the work on the project is in full swing and some delay has occurred due to construction of additional floors.

Parties led their evidences by way of affidavit and filed their written statements. The opposite party remained unrepresented despite last opportunity on 03.12.2021 and another opportunity on 14.06.2022. He was therefore placed ex-parte. We have heard the learned counsel for the complainant who has also file his short synopsis and perused the records carefully. Admittedly, there has been a delay in the handing over the subject flat by the opposite party who has not denied the receipt of Rs.1,79,60,139/- towards the sale consideration. Opposite party has not denied that the complainant made all payments as per plan in a timely manner. Opposite party has denied making false or misleading promises and stated that the reasons for the delay in completing the project and obtaining an occupation certificate is the change in building plan involving increase in floors which is in accordance of the law and terms and conditions of the agreement, Accordingly, the date of handing over of possession has delayed. Learned counsel for the complainant has relied upon several case laws, including primarily on Satish Kumar Pandey Vs. Unitech Ltd in CC 427 of 2014 dated 08.06.2014 wherein no merit was found in the arguments of force majeure urged relating to recession and slowdown in the economy including the real estate sector, shortage of labour and building materials. It was also held that a contract if signed under compulsion could not be taken to be binding on the party so compelled to accept one-sided and unequal terms such as compensation for delay @2-3% or Rs 5/- per sq ft when delay on part of consumer for delay was interest @ 18%; Satish Kumar Malhotra & Anr. Vs. DLF Ltd & Anr. in CC 1374 dated 07.06.2016 wherein it was held that a Flat Buyer’s Agreement signed after 2 years of provisional allotment promising possession after 2 years was an unfair trade practice and on the recent order of this Commission in Raju Chowdhary & Anr. Vs. Athena Infrastructure Ltd. & Anr. in CC No. 3333 of 2017 where refund of the principal deposited with interest @ 9% from dates of respective deposits was ordered.

We have considered the arguments of both parties in the light of the arguments urged, the documents on record and the various judgements of the Hon’ble Supreme Court and this Commission.

The opposite party has denied the averments of the complainant while admitting the delay in completion of the project. The complainant has sought refund with compensation in the form of interest on the amount deposited by him. The delay of over 6 years by the opposite party in handing over of the subject flat is certainly inordinate and needs to be viewed as such. The Hon’ble Supreme Court in Civil Appeal No 12238 of 2018 Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan & Connected Matter on 02.04.2019 and in Civil Appeal No. 3182 of 2019 Kolkata West International City Pvt., Ltd., Vs. Devasis Rudra decided on 25.03.2019 and in Fortune Infrastructure Vs Trevor D’Lima (2018) 5 SCC 442 has held that a buyer cannot be expected to wait indefinitely for possession and in a case of an unreasonable delay in offering possession, the consumer cannot be compelled to accept possession at a belated stage and is entitled to seek refund of the amount paid with compensation. It has also been held in Pioneer Urban Land & Infrastructure Ltd., (supra) that in case a builder offers possession after the due date of promised possession, it is the discretion of the allottee to either accept the possession or to seek a full refund of his money with compensation. Accordingly, the prayer of the complainant is liable to succeed.

As regards the opposite party’s preliminary objection that this Commission lacks jurisdiction in view of the provision for arbitration in the Agreement, it is relevant to note that this issue has been settled by the Hon’ble Supreme Court in M/s Emaar MGF Land Limited Vs. Aftab Singh I (2019) CPJ 5 (SC) wherein it was held that an arbitration clause in the Agreement does not bar the jurisdiction of the consumer fora to entertain the complaint. Hence, the objection of the opposite party that the clause of arbitration bars this Commission from entertaining the complaint is unsustainable.

The opposite party’s contention that the complainant is not a consumer within the definition of section 2 (i) (d) of the Act needs to be considered in the light of the documentary evidence submitted. It is seen that the opposite party has not submitted any evidence in support of this assertion. In Kavita Ahuja Vs. Shipra Estates I (2016) CPJ 31 it has been categorically laid down by this Commission that the onus of proving that complainants are not consumers lies upon the opposite party which in the instant case it has failed to prove by way of any documentary evidence. This contention is therefore not valid.

In view of the foregoing, we are of the considered view that the opposite party has been deficient in not making an offer of possession of the subject flat to the complainants within the stipulated period of 16.08.2015 which had been promised while signing the Agreement on 16.02.2012 despite having accepted deposit of Rs. 1,79,60,139/- from the complainants which amounts to approximately 95% of the total sale consideration. There is also unfair trade practice on part of the opposite party in that

I, therefore, find merit in the complaint and allow the same with the following directions:

(i)  Opposite party is directed to refund the entire amount of Rs.1,79.60,139/- deposited by the complainants along with 9% simple interest on it from the dates of respective deposits;

(ii) Opposite party is also directed to pay litigation cost of Rs 50,000/- to the complainant;

(iii) Order be complied within 12 weeks failing which penal interest of 12% shall be paid to the complainant.

The complaint is accordingly disposed of with these directions.