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Judgment
Complainants are husband and wife. The Opposite Parties are Builders and Promoters of the Residential Project in the name and style "Townsville" at Newtown, Bangalore South. Opposite Part is subsidiary of Opposite Party No.1. Opposite Party No.2 was later merged with Opposite Party No. Opposite Party No.3 entered into Joint Development agreement with the Opposite Party No.1 for the completion of the aforesaid project.
The case of Complainants is that they booked a residential unit in the "Townsville" project, Ne Bangalore South by depositing a sum of Rs.5,00,000/-. The Complainants were allotted unit No.8A, BHK-Garden, vide allotment letter dated 22.06.2011. The project was to be constructed on the land i Hulimangala Village, Jigani Hobli, with a saleable area of 3424 sq. feet, inclusive of proportionate sh common areas with two closed car parks. Opposite Party No.2 issued demand note dated 29.09.2011 sum of Rs.14,76,680/- towards payment of instalment. On 10.01.2012, builder-buyer agreement was executed between the Complainants and Opposite Party No.2. According to the agreement, the paym schedule was as follows: -
Due on or before
Amount
Booking and Sale Agreement
19,76,680.00
On Completion of Foundation Work
15,61,344.00
On Completion of Podium Slab
19,51,680.00
On Completion of Slab 1 Work
7,80,672.00
On Completion of Slab 2 Work
7,80,672.00
On Completion of Slab 3 Work
7,80,672.00
On Completion of Slab 4 Work
7,80,672.00
Commencement of Internal Block Work
7,80,672.00
Commencement of Internal Plastering
7,80,672.00
Commencement of External Finishes/ Plastering
7,80,672.00
Commencement of Flooring
7,80,672.00
On Possession 1
5,20,448.00
On Possession 2
8,25,000.00
Total
1,38,61,200.00
The demands raised by Opposite Party No.2 were fulfilled by the Complainants by paying upt instalment. The details of payment made by the Complainants are given below:-
Mode of payment
Instrument Ref. no
Date
Bank
Amount Rs.
Local cheque
969958
20/06/11
HDFC
5,00,000
Local cheque
969965
21/01/12
HDFC
14,76,680
NEFT
0004F1217000059
18/06/12
HDFC
75,000
NEFT
RBIPTRN253976935
05/06/12
HDFC
75,535
Local cheque
969984
09/04/13
HDFC
15,61,343
Outstattion cheque
751823
09/04/13
HDFC
1,27,875
Local cheque
969987
07/05/13
HDFC
19,51,680
NEFT
RBIPTRN294171306
09/05/13
HDFC
1,59,843
Outstation Cheque
751826
21/06/13
HDFC
7,80,672
Outstation cheque
751827
21/06/13
HDFC
63,937
Outstation Cheque
371885
07/08/13
HDFC
7,80,672
Outstation Cheque
371886
07/08/13
HDFC
63,937
Outstation Cheque
371887
03/09/13
HDFC
7,80,672
Outstation cheque
371888
03/09/13
HDFC
63,937
Outstation Cheque
798024
20/10/13
Indian Bank
6,00,000
Outstation Cheque
371898
20/10/13
HDFC
63,937
Outstation cheque
371899
20/10/13
HDFC
1,80,672
Bankers cheque
713961
11/12/13
SBI
8,16,735
TOTAL
1,01,23,127
The possession of the unit was to be handed over by June, 2014. Opposite Party No.2 never in the Complainant about the construction status. The Complainants were denied access to the construc They were always given the assurance that the construction was in full swing and would be complete time. Since the construction stage was not known to the Complainants, they stopped making further payments to the Opposite Party. On 09.02.2017, the Complainants sent an email with reasons for non-payment to Opposite party No.2. On 06.06.2017 the Complainants made a request to Opposite P No.2 to allot a larger unit 20A in place of 8A and settle the issue of delayed possession, but Opposite No.2 failed to accede to the request of the Complainants. On 21.07.2017, Opposite Parties Nos.1 & 2 into a Joint Development Agreement with Opposite Party No.3 M/s GM Infinite Dwelling Private Li after seven years of the start of the project without intimation to the Complainants and other buyers. Complainants sent a legal notice dated 21.04.2018 to the Opposite Party No.1. In their reply dated 30.05.2018, Opposite Party No.1 took the ground of Force Majeure conditions and sent a penalty sta Opposite Parties Nos.1 & 2 sent a tripartite agreement to be executed between M/S Patel Engineerin Limited (Erstwhile M/s Patel Realty (India) Limited and GM Infinite Dwelling (India) Private Limit the Purchasers in August, 2018. As per this agreement, Opposite Party No.3 was to complete the con of the Project within 18 months with an extension of 6 months from the effective date of the Joint Development Agreement. Alleging deficiency in service and unfair trade practice on the part of the O Parties, Complainants filed the instant Consumer Complaint with the following prayer: -
" a. Grant refund of the entire amount along with compounded penal interest @ 24% a ,from their respective dates of deposit till the date of deposit till the date of refund amou Rs.3,40,72,747/- assuming the date of this complaint as the date of refund for the purpo calculation .
Grant the interest ofRs.4,21,779/ paid by the complainants for the housing loan availed by the purpose.
Grant the rent paid by the complainantsfor their rented accommodation along with interest fro 2014, the date on which the unit was agreed to be delivered and handed over, amounting to Rs.17,79,673/- with interest.
Grant compensation of Rs.20,00,000/- for the mental agony, inconvenience, mental harassmen damage suffered by the complaints due to deficiency of services on part of the opposite parties consequential delivery.
Grant compensation of Rs.5,00,000/- toward the costs of litigation lawyer'sfee, documentation charges, representation(s) and numerous visits.
Grant any other relief to which the complaints may be entitled to under the facts and circumst the case and pass such further order and orders as this Hon'ble commission may deem fit prop the facts in facts and circumstances of the present case."
The Complaint was contested by Opposite Parties 1 & 2 by filing reply. Opposite Party No.3 f file the written statement, despite service of notice. Opposite Party No.1 stated that the Opposite Part was not a legal entity having merged with Opposite Party No.1 and the Complaint against Opposite P No.2 was not maintainable. The Complaint was filed with ulterior motive as the demand of the Com to swap the unit with a larger unit was not accepted by the Opposite Parties. The Complaint was noth an attempt to avoid payment of balance installments. The delay was due to reasons beyond control o Opposite Parties such as heavy rains, strike of labour, disruption of supply of cement, transporters str Bangalore and/or Karnataka Bundh etc. According to clause 6 of the Agreement Opposite Parties are to sell/transfer the development rights to any other person without the consent of the Purchaser. The Development Agreement entered with Opposite Party No.3 had only been executed for balance land available in Newtown. The Tripartite Agreement entered with Opposite Party No. 3 was an honest en in the interest of the Project and Purchasers, including the Complainant.
Heard the Learned Counsels for the Parties and carefully perused the record. Learned Counsel Complainants submitted that the Complainants have made payments in a time bound manner and a t amount of Rs.1,01,23,127/- has been paid by them. Possession of the unit was to be handed over by J 2014 but the Opposite Parties did not adhere to the agreement and failed to give possession to the Complainants. It was further submitted that the Complainants have taken a loan of Rs.4,21,779/- and been paying regular EMIs to the Bank. The Opposite Parties charged 24% interest from the buyers fo in making the payment. Learned Counsel for the Complainants relied on the judgment of Hon'ble Su Court in Fortune Infrastructure vs. Trevor D'lima & Ors. Civil Appeal No.3533-3534 of 2017 a submitted that the Complainants cannot be made to wait indefinitely for possession of the unit. He al on the judgment of Hon'ble Supreme Court in Pioneer Urban Land & Infrastructure Ltd. vs. Gov Raghavan, Civil Appeal No.12238 of 2018 and submitted that the terms of the contract being one s not binding on the Complainants. It was further submitted that the Opposite Parties have not filed an evidence to establish that the possession could not be delivered in time due to force majeure conditio
Learned Counsel for Opposite Party No.1 submitted that the Complaint is not maintainable in clause 2 of the agreement and has been filed with ulterior motive to gain undue advantage. The Com have failed to make the payment in time and the instant Complaint is nothing but an attempt to avoid balance payment of instalments to Opposite Party No.1. It was also submitted that Opposite Party No completed approximately 560 apartments and handed over possession to the buyers. The delay had b caused due to the reasons beyond their control.
Learned Counsel for Opposite Party No.3/M/s GM Infinite Dwelling Private Limited submitte the time for completion of project as per the Tripartite Agreement dated 21.11.2017 expired on 21.11 and the Complaint was filed on 01.11.2018. The Complaint qua Opposite Party No.3 is pre mature a maintainable. The project could not be completed in time due to force majeure conditions, which we beyond the control of Opposite Party No.3. It was also submitted that as per clause 7 (f) of the Agree Opposite Party No.1 shall be solely responsible for all liabilities arising out of the project.
Brief facts of the case are that the Complainants were allotted a residential unit with 2 closed in the Project "Townsville" by Opposite Party No.2, for a consideration of Rs.1,38,61,200/-. Possess the unit was to be handed over on or before June, 2014. Construction of the project was not accordin agreement. On 03.02.2017, Opposite Party No.2 informed the Complainant that "structure is nearin completion and soon you would have homes ready to take interiors" , and a sum of Rs.8,72,483/- wa informed to be overdue from 12.11.2013 on which an interest of Rs.6,22,656/- had accumulated. The Complainant tried to settle the matter of delayed possession by asking the Opposite Party No. 2 to al bigger unit 20A in place of 8A. In July 2017, Opposite Party No.2 amalgamated with Opposite Party and Opposite Party No.1 entered into a Joint Development Agreement with Opposite Party No.3 for construction of the project, according to which the construction was to be completed upto 21.11.2019
The main issue between the Parties relates to delay in delivery of possession. Clause 18 of the Agreement deals with the construction and possession of the unit, which reads as follows: -
"....subject to non-existence of any force majeure conditions and as more particularly de in Schedule 'G' hereto, and subject to fulfilment of all objections by the Purchaser as als the Unit owner, the Vendor shall call upon the Purchaser to take possession of the Unit o before December 2013 with a further grace period of 6 months i.e. on or before June 201 event the Vendor is not able to handover the possession of the unit by such later date, the shall pay interest at the rate of 10% (ten percent) per annum on the amounts paid by the Purchaser till that date to the Vendor towards penalty to the Purchaser which shall be in of any/all damages, claims and compensation and the same shall be paid at the time of h over of possession of the Unit....."
From the above, it is clear that the possession was to be delivered on or before June, 2014. In Bangalore Development Authority v. Syndicate Bank [2007 (6) SCC 711], Hon'ble Supreme Court that when possession of the allotted plot/flat/house is not delivered within the specified time, the allo entitled to a refund of the amount paid, with reasonable Interest thereon from the date of payment till of refund. The Complainants are entitled for refund of all the payments with interest if the Builder is to give possession of the Building within the stipulated time. Opposite Party No.1 has not provided evidence to substantiate the plea that the delay was caused due to unforeseen and unexpected events. Opposite Party No.1 cannot take shelter of the "Force Majeure" Clause. The reasons cited by the Op Parties for the delay of the project, appear to be delaying tactics veiled as "Force Majeure" condition seem to be an attempt to wriggle out of its contractual obligations. In Fortune Infrastructure & Anr Trevor D 'Lima & Ors., Civil Appeal No. 3533-3534 of 2017, decided on 12.3.2018, Hon'ble Supre Court held that a person cannot be made to wait indefinitely for possession of the flat allotted to him is entitled to seek refund of the amount paid by him, along with compensation. The reasons stated fo majeure conditions are only delay tactics to handover possession of the Apartment. The Complainan therefore, entitled for refund of the amount paid by them. According to Clause 18 of the agreement, Party No.1 has agreed to pay compensation for delay in handing over possession @ 10% p.a.
In view of the above, Complaint is partly allowed and Opposite Party No.1 is directed to refun entire amount deposited by the Complainants alongwith simple interest rate of 10% per annum with from the respective date of each payment till the date of refund. Payments in terms of this order shall made within two month from today, failing which Opposite Party No.1 shall be liable to pay interest per annum after expiry of two months.