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Judgment
Dr Inder Jit Singh, Presiding Member`
The present Consumer Complaints (CCs) have been filed by the Complainants against the opposite party (OP) as detailed above, inter aila praying for directing the OP to :-
i. refund the entire amount collected from the complainant towards the consideration of the Flat along with interest @18% p.a. on the amount paid by them from the date of each deposit of the amount till it is actually returned to the complaints;
ii. pay compensation towards mental agony and harassment and towards cost of litigation to the complainant.
Since the facts and question of law involved and the reliefs prayed for in these complaints are similar/identical and against the same Opposite Party except for minor variations in the dates, events and flat numbers etc., which are summarized in the Table at Annexure-A, these complaints are being disposed off by this common order. However, for the sake of convenience, Consumer Complaint (CC) No. 349 of 2018 is treated as the lead case and facts enumerated herein under are taken from CC/349/2018.
Notice was issued to the OP. Parties filed Written Statement/Reply, Rejoinder, Evidence by way of an Affidavit and Written Arguments/Synopsis etc. 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.
Brief facts of the case, as emerged from the pleadings of the parties and other case records are that:-
i) On 20.06.2012, the complainant booked an apartment in the project of the OP known as “The Leaf” in Sector 84-85, Gurgaon, Haryana. The complainant is the original allottee. An Agreement was entered into between the parties on 08.08.2013. The complainant was allotted Apartment No. 11-C at 11th floor in Tower-3, admeasuring 1575 sq.ft.
ii) As per clause 8.1 of the Flat Buyer’s Agreement, the OP was to give possession of the apartment to the complainant within 36 months from the date of execution of the Agreement with a grace period of 6 months. The OP failed to give possession to the complainant till date.
It is stated/contended by the Complainants that:-
i) The complainant has now lost all faith in the project of the OP. The semi constructed building of the project in which the house of the complainant is being constructed has been lying in abandoned shell form since last many years. It has deteriorated in value and there are chances that it will collapse soon as the structure which is not complete and exposed to vagaries of nature like rain, wind etc. is prone to defects. The complainant does not wish to reside in such a building even if the OP delivers the possession of the same to him in near future. Hence, the complainant wises for return of his money with interest @ 18% p.a. in the form of compensation.
ii) As the OP failed to deliver the possession and as per clause 8.3 of the Buyer’s Agreement, it was agreed by the OP that in case the OP fails to hand over the possession within the grace period of six months, the OP shall pay to the complainant a compensation at the rate of Rs.5/- per sq.ft. per month of the Super area for the period of the delay. The clause of compensation at such a nominal rate of Rs.5/- per sq.ft. per month for the period of the delay is unjust and one sided.
iii) OP has collected a substantial amount from the complainant, which is not even due yet. The OP has been keeping and using money of the complainant and saving huge finance costs as borrowing the same from the outside market financers would have costed the OP interest @ 15 to 16%. The OP has moved smartly and fraudulently started taking money from the residential complex buyers by stating to use the same for their house but seems to have diverted the same towards some other purposes.
iv) The conduct, acts and omission of the OP, falls within the ambit of deficiency of services, unfair trade practices and restrictive trade practices as defined under the Act.
OP in their reply while raising certain preliminary objections, like complainant is not a consumer within the meaning of Section 2(d) of the Consumer Protection Act, 1986, pecuniary jurisdiction, the motive of the complainant was to re-sell the flat at a much higher price, the complainant failed to honour her part of the contract in paying timely instalments as per the agreed payment plan and suppression of material facts from the Commission and also submission of false, incorrect and misleading statements etc., denied most of the allegations in the complaint. It is also contended that clause 8 of the Agreement provides for handing over of possession of the units to the complainant subject to condition of complainant fulfilling their part of obligation under the contract. However, payments have been either delayed or not made by the complainant. Under clause 8.3, the complainant can claim for refund of their payment after expiry of 51 months and after the allotted unit has been sold out.
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.
It was argued by the complainant that the default of home buyers, if any, cannot be a valid ground for delay of years in completion of units. There can be a small delay of default owing to arrangements of funds. OP has the option of raising funds from the open market. Delaying projects worth crores for small defaults of lakhs does not make sense. OP have the right to charge exorbitant interest in case of delays and they can even cancel the units, which they have not done. Reliance was placed on the judgment of this Commission in CC/3699/2017 in Nitin Pandey & Anr. Vs. Emaar MGF Land Ltd. decided on 24.12.2021 and Ramesh Thangarajan & Anr. Versus Sylvanus Builders & Developers Ltd. & Ors. decided on 14.03.2022. Reliance was also placed on the observations of Hon’ble Supreme Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan (2019) 5 SCC 725 and Experion Developers (P) Ltd. Vs. Sushma Ashok Shiroor (2022) SCC online 416 to seek refund in the facts and circumstances of the case.
OP on the other hand argued that complainant had opted for construction linked payment plan, and had defaulted in making payments against many demands. Since 25.11.2017 no further payment was made. The cost incurred on the project is more than 178 crore as on 02.11.2018. All payments received by the OP from the allottees have been invested in the project. However, the deficit payments by the allottees has freezed the hands of the OP in timely completion of the project.
OP further contended that complainant invested money in the project for commercial gains. As per Clause 8 of the agreement, the period of granting possession was subject to complainant complying with all the terms and conditions of the agreement. It was argued that OP is within its right to forfeit the earnest money in case refund is sought by the complainant. Reliance was made by OP on the observations of Hon’ble Supreme Court in Sahara India Commercial Corporation Ltd. Vs. P. Gajendra Chary –III (2010) CPJ 190 (NC) and DLF Southern Towns Pvt. Ltd. Vs. Dipu C Seminlal - 2015 SCC OnLine NCDRC 1, in this regard. OP stated that it has applied for the Occupation Certificate (OC) vide application dated 18.06.2021.
Committed date of possession as per agreement, with a grace period of three months is 08.11.2016. Till date OC has not been obtained by the OP. There is an inordinate delay in delivery of possession to the complainant. 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 and thus amenable to the jurisdiction of consumer fora. Further the Hon’ble Supreme Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan (2019) 5 SCC 728 held that “The Respondent – Flat Purchaser could not be compelled to take possession of the flat, even though it was offered almost 2 years after the grace period under the Agreement expired.” “Allottees who have not been given possession cannot be made to wait indefinitely for possession …….. such allottees are entitled to refund of entire amount by them.” In Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra- 2019(6) Scale 462, Hon’ble Supreme Court observed that “A buyer can be expected to wait for possession for a reasonable period.”
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 Rupees one crore. The contention that complainant is not a consumer as the sole motive of complainant was to re-sell the said flat at a much higher place, is also rejected as no such evidence has been adduced by the OP in this regard.
In the instant cases, there is an inordinate delay in handing over the possession of flat by the OP. 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 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 off with the following directions/reliefs:-
CONSUMER COMPLAINT NO. 349 OF 2018
(i) The OP shall refund the entire principal amount of Rs.62,55,038/- (Rupees sixty two thousand fifty five thousand thirty eight only) to the complainant, 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 OP shall pay a sum of Rs.25,000/- as cost of litigation to the complainant.
(iii) The payment in terms of this order shall be paid within three months from today.
(iv) In case the complainant has 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.
CONSUMER COMPLAINT NO. 351 OF 2018
(i) The OP shall refund the entire principal amount of Rs.46,32,144/- (Rupees Forty six lakh thirty two thousand one hundred forty four only) to the complainant, 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 OP shall pay a sum of Rs.25,000/-as cost of litigation to the complainant.
(iii) The payment in terms of this order shall be paid within three months from today.
(iv) In case the complainant has 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.
CONSUMER COMPLAINT NO. 1222 OF 2018
(i) The OP shall refund the entire principal amount of Rs.37,19,966/- (Rupees thirty seven lakh nineteen thousand nine hundred sixty six only) to the complainant, 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 complainants 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 complainants 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 complainants 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.
CONSUMER COMPLAINT NO. 1982 OF 2018
(i) The OP shall refund the entire principal amount of Rs.81,59,179/- (Rupees eighty one lakh fifty nine thousand one hundred seventy nine 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 complainants 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 from today.
(iv) In case the complainants 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 complainants 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.
CONSUMER COMPLAINT NO. 166 OF 2019
(i) The OP shall refund the entire principal amount of Rs.29,36,519/- (Rupees twenty nine lakh thirty six thousand five hundred nineteen 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 complainants 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 complainants 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(s) 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.