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Judgment
Dr. Inder Jit Singh, Member
The present Consumer Complaint has been filed by the Complainants against Opposite Parties as detailed above, inter alia praying for: -
i. Declare that Clauses 3.2, 3.3, 5.2, 6.1 and 6.3 of the Construction Agreement are unfair, unreasonable and unconscionable and imposition of such terms constitutes unfair trade practice by the Opposite Parties, and the same are unenforceable against the Complainants by the Opposite Parties; and
ii. direct the Opposite Parties to jointly and severally refund the amount paid by the Complainants under the Agreements to the Opposite Parties and towards pre-EMIs to HDFC towards sale consideration for the Apartment agreed to be purchased under the Agreements and interest from the dates of payments up to the date of filing of the present Complaint @ 18% per annum, and future interest @ 18% per annum from the date of filing of the present Complaint up to the date of payment ; and
iii. direct the Opposite Parties to jointly and severally pay the entire outstanding loan to the HDFC, pursuant to the Tripartite Agreement on behalf of the Complainants, and obtain and provide a no dues certificate from HDFC to the Complainants; and
iv. direct the Opposite Parties to jointly and severally pay Rs.20,00,000/- (Rupees twenty lakhs only) to the Complainants for the harassment caused to it by their illegal acts;
v. declare that the Opposite Parties have indulged in unfair trade practice;
vi. direct the Opposite Parties to jointly and severally pay the cost of the present complaint to the Complainants;
vii. pass such further order or orders as this Hon’ble Commission may deem fit in the facts and circumstances of the case.
Notice was issued to OPs on 18.12.2018 with directions to file their Written Statement within a period of 30 days.
It is averred/stated in the Complaint that: -
i. The Complainants booked a residential Apartment in the city of Bangalore in the Project of OP ‘Nitesh Cape Cod’ by payment of booking amount in the sum of Rs.3,00,000/- alongwith application form on 09.05.2012.
ii. Vide letter dated 15.05.2012 OP allotted to the Complainants Apartment No. C-1103, admeasuring 1684.66 sq.ft. for a total consideration of Rs.97,38,738/-.
iii Agreement to Sell dated 25.05.2012 between the Complainant and OPs-1 to 5 and Construction Agreement dated 25.05.2012 between the Complainant and OP-1 and Tripartite Agreement dated 14.06.2012 between the Complainants, OP-1 and OP-6 (HDFC) was signed.
iv.The proposed date of possession was within a period of 30 months from the date of receiving the Commencement Certificate with six months’ grace period additionally.
v. The OP failed to get the Commencement Certificate from the authorities until 26.06.2013.
vi. The period of 30 months from the date of sanction of building plan by BBMP, i.e., 19.09.2012, was to expire on 19.03.2015.
vii. In consonance with the understanding that the OP-1 undertook under the Construction Agreement to pay applicable interest on the loan taken by the Complainants from the HDFC for a period upto 30.04.2014. Later OP-1 stopped paying interest on the loan amount from April 2014.
viii. The period of 36 months stood expired on 26.06.2016. But the possession was not given, hence , this Complaint has been filed.
The OP-1 in their written statement/reply stated that: -
i. That the complaint u/s 21 (a) (i) is not maintainable and ought to be rejected at the very threshold. The OP submits that they are developing the project by virtue of entering into a Joint Development Agreement (JDA) with the OPs-2 to 5 who are the land owners of the project land.
ii. The OP-1 pleaded that the construction contractor, i.e., M/s Simplex Infrastructure Ltd., appointed by OP-1 to complete the construction work on the Nitesh Cape Cod Project violated the terms of its contract with the OP-1 and refused to complete the construction. OP-1 contended that vide letter dated 12.07.2018 and 06.09.2018 informed the apartment buyers of this delay. Due to delay from the construction contractor and despite the extensions in time given by OP-1, time and again the construction contractor failed to abide by the terms of the contract and failed to complete the construction work and thereby delayed the work at the project site. Hence, the OP-1 terminated the contract with the construction contractor and OP-1 was compelled to look for a new contractor which took considerable time.
iii. The delay caused by these factors which were akin to force majure was totally out of control of OP-1.
iv. The OP-1 further contended that as per Clause 5.3 of the Construction Agreement dated 25.05.2012, Complainants are entitled to payment, in this case, after the OP-1 has resold the flat in question, i.e., C-1103, to third party. Since the same has not been done, the Complainant is not entitled to refund. Further, the OP-1 is entitled to forfeit 18% of the total amount paid by the complainants till the date of termination.
v. It is also contended by the OP-1 that OP-1 has not misrepresented the Complainants and in fact the Complainants being impressed by the project and its location have voluntarily booked the apartment by signing the agreements. OP-1 also denied any unfair trade practice alleged by the Complainants.
The OP-6 in their written statement/reply stated that: -
i. The Opposite Party Nos. 1 to 5 did not honor their part of the promises and did not deliver the constructed property as promised resulting into financial and material loss to the Complainant and the OPs-1 to 5 made additional payment demand from the Complainants. However, it is not clear from such case where is the deficiency in service or unfair trade practice resulting from the disbursement of loan by the opposite party No. 6. OP-6 has merely extended a financial aid for housing endeavors of the complainant as requested by him after pursing all his financial details adequately.
ii. It is further contended that the complainant has admitted that he has been repaying the loan as per agreed schedule and as per the liability that has arisen by virtue of availing the loan and executing loan agreement with HDFC and as a matter of record it is submitted that the Complainant has executed the loan agreement with OP-6 and are liable to repay back the loan as per relevant clauses of the loan agreement and the tripartite agreement.
iii. OP-6 contended that there is no material allegation or material on record which even remotely indicate any foul play by OP-6 who has unnecessarily been dragged in the present proceeding by the Complainant. Therefore, the present complaint is also not maintainable against OP-6 in view of the admitted limited role of sanctioning loan and disbursing the same in accordance with law.
Complainants in their rejoinder dated 25.02.2020 to the reply filed by OP-1, have denied various averments of the OP-1 and reiterated most of the pleas/contentions as stated in the Complaint.
Evidence by way of an Affidavit was filed by the complainant and OP-6 broadly on the lines of averments made in their respective complaint/reply. Written Synopsis was also filed by the Complainants. The details of the flats allotted to the Complainant/other relevant details of the case are given in the Table below:-
Sr. No.
Particulars
1
Project Name/Location etc
‘Nitesh Cape Cod’
Bangalore
2
Apartment no
C-1103, 11th Floor, Block C, Tower-1
3
Size (Built up/Covered/Super Area)
1684.66 sq.ft.
4
Date of application
08.05.2012
5
Date of signing Agreement to Sell
25.05.2012
6
Date of Construction Agreement
25.05.2012
7
Date of Tripartite Agreement
14.06.2012
8
Date of issue of Commencement Certificate
26.06.2013
9
Committed date of possession as per Agreement to Sell with Grace period of 6 months
26.06.2016
(30 months + 6 months from the date of receiving Commencement Certificate)
10
Amount Paid
Rs.97,38,738/-
11
D/o Filing CC in NCDRC
13.12.2018
12
D/o Issue of Notice to OP(s)
18.12.2018
13
D/o Filing Reply/Written
Statement by OP-1
20.05.2019
14
D/o Filing Reply/Written
Statement by OP-6
14.03.2019
15
D/o filing Rejoinder by the Complainant
25.02.2020
16
D/o Filing Evidence by way of
Affidavit by the Complainant
25.02.2020
17
D/o filing Written Synopsis by the Complainant
21.12.2020
Heard counsels of both sides.
The plea of OPs that delay was due to force majeure circumstances is not valid as even after a gap of more than six years from the committed date given in the Agreement to Sell, 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. Complainants cannot be made to suffer on account of default by the contractor engaged by OP-1.
In the instant case, there is an inordinate delay in handing over the possession of flat by the OPs. The complainants cannot be made to wait for an indefinite time and suffer financially. Hence, the complainant in the present circumstances have a legitimate right to claim refund alongwith fair delay compensation/interest from the OPs The plea of OPs for entitlement of compensation to the complainant in accordance with provisions of the Agreement to Sell is not valid.
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 off with the following directions/reliefs: -
i. The OP-1 to OP-5 shall refund the entire principal amount of Rs.97,38,738/- (Rupees ninety seven lakh thirty eight thousand seven hundred thirty eight only) to the complainants, 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 the complainant based on receipts etc.
ii. The OPs shall pay a sum of Rs.25,000/- as cost of litigation to the complainants.
iii. The liability of the OPs-1 to 5 shall be joint as well as several.
iv. The payment in terms of this order shall be paid within three months from today.
v. As the complainants have taken loan from OP-6, if 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 complainants would submit the requisite documents from the concerned bank(s)/financial institution(s) to the OPs within 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.