AI Structured Summary
Not yet generated for this judgment
Judgment
Dr Inder Jit Singh, Member
The present Consumer Complaint (CC) has been filed by the Complainants against Opposite Party (OP) as detailed above, inter alia praying for directions to the OP to:-
(i) Refund the entire amount paid by the complainants towards consideration of unit along with interest @18% p.a. from date of payment made by complainants till its realisation;
(ii) Pay a sum of Rs. 5,00,000/- on account of mental agony and harassment to complainant caused due to failure to handover the possession of apartment to the complainant;
(iii) Pay a sum of Rs. 50,000 towards cost of litigation to the complainants.
Notice was issued to the OP on 04.12.2017. 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.
It is averred/stated in the Complaint that: -.
i. The complainants booked a flat in the OP’s Project “Ansal Crown Heights” from the original purchasers on 12.07.2012 vide agreement to sell of the same date. The transfer was confirmed by the OP vide letter dated 04.08.2012. The flat was to be delivered within 36 months of the entering into ABA dated 17.12.2011. OP had failed to deliver the possession of the flat along with promised amenities till date. As per letter dated 04.08.2012 the amount paid by the original purchasers to the tune of Rs.48,55,240/- stood credited in the name of complainants. The total consideration of the unit was Rs.57,16,411/- from which complainants have already paid Rs.55,98,957/-.
ii. OP is guilty of issuing indiscriminate demand letters to the complainants in spite of no real progress on the site. Intention of OP was malafide since beginning as they have collected almost the entire consideration amount even though there is a huge delay of more than 3 years. OP is guilty of charging illegal service tax and illegally charged Enhanced External Development charges upon complainant. That the terms of the ABA are totally one sided. OP has failed to fulfil its obligations and there is a deficiency of service on the part of OP.
The OP in their written statement/reply stated that: -
(i) The ABA are binding on both the complainants and OP, and hence does not give rise to any cause of action. Clause 4 clearly stipulates OP would endeavour to hand over possession of flat within 36 months from date of execution of ABA subject to force majeure circumstances and further clarifies that no claim by way of damage or compensation shall lie against OP in case of delay in handing over possession of the unit on account of any reason beyond control of OP. That 2007 to 2016, construction work got delayed by 1109 days due to delay on part of DTCP, Haryana in the renewal of license of OP. That OP applied for its revalidation on 26.06.2015 leading to a further delay in construction work of 177 days.
(ii) Construction work got affected due to delays caused by contractor or appointed by OP for present project. M/s CRS Infra Projects got the contract but was lagging behind the schedule, so on 05.11.2012 OP retendered the construction work to M/s Pyare Lal Harisingh Builders Pvt. Ltd. However the first contractor created regular hindrances for newly appointed contractor in form of lockouts, labour problems and in procurement material. At last, OP granted the contract for construction to M/s Radha Laxaman Contracts. That the project was funded by internal sources of builder mainly and balance was to be sourced by flat buyers. That the construction work of 4 of the 8 towers is completed to the extent of 95% and remaining to the extent of 70%. During intervening period majority of buyers defaulted in complying with payment plan of ABA and neglected in paying instalments due to OP. An amount of Approx. Rs. 50 crores is outstanding to be paid by flat buyers.
(iii) It is denied that complainants are consumers within the meaning of section 2 of Consumer Protection Act, 1986. No question of assurances can arise in the present case as the complainants admittedly purchased the flat from open market and not OP. That the details of payment enumerated by complainants does not match with the records. Even though as per BBA the buyers were liable to pay 24% interest p.a., OP keeping in mind delay and for sole benefit of buyers , had reduce the interest that is payable by the buyers on delayed payments to 9% p.a., since 01.01.2017. That complainants are making highly inflated claims to invoke pecuniary jurisdiction of this Commission.
Heard learned counsel for the Complainants. 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 complainants argued that their case is covered under the judgment passed by this Commission in Suresh Chand Aggarwal and Anr. Vs. Ansal Crown Infrabuild Pvt. Ltd., CC/2170/2017, decided on 11.11.2021, wherein this Commission has dealt similar dispute related to same project taking into consideration same objections raised by the OP and granted refund to the complainant. The complainants argued that the agreement executed by OP was an unfair and one-sided contract, till date, the project is not complete, no offer of possession has been made yet, the possession was due on 17.12.2014 but OP has failed to deliver the possession till date, delivery of possession was the essence of the Agreement.
The complainants also argued that force majeure does not include non-payment of instalment by other buyers as ground for extension of time for OP. Relying upon various judgments of the Hon’ble Supreme Court they argued that the allottees cannot be made to wait indefinitely for the possession of the flats. They further argued that OP’s contentions for delay on account of renewal of license by DTCP are not valid as OP failed to inform that when the license was renewed and failed to give reasons to show whether the delay was on the part of DTCP. The complainants cannot be held liable for delay on account of issues between the OP and his contractors. With respect to the complainants being subsequent allottees, the complainants relied upon the judgement of Hon’ble Supreme Court in M/s Laureate Buildwell Pvt Ltd vs Charanjeet Singh in which it was held that per se bar to the relief of interest enunciated by the decision in Raje Ram which was applied in Wg. Commander Arifur Rehman cannot be considered a good law and subsequent allottees are also entitled to refund.
The committed date of possession as per Agreement is 17.12.2014. Admittedly the project is not complete even now. OP in their written submissions dated 16.08.2022 has stated that OP is keen to complete the project, the work at site is at full swing, project has not been abandoned and OP endeavours to complete the same at the earliest under regular circumstances leaving the force majeure conditions etc. Even after a lapse of more than 8 years from the committed date of possession, the OP is not in a position to deliver the possession of the flat and give any firm date of completion of the project/hand over of the flat to the complainants. It was held by 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, “failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within the contractually stipulated period, amount to deficiency”. In Banglore Development authority Vs Syndicate Bank (2007) 6 SCC 442 and Fortune Infrastructure Vs Trevor D' Lima (2018) 5 SCC 422 Hon’ble Supreme Court held that "Home buyers cannot be made to wait for position of the flat for indefinite 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 Rs. one crore. The contention that complainants are not the consumers is also rejected as no such evidence has been adduced by the OP in this regard. It has been observed by this Commission in various cases (Kavita Ahuja Vs Shipra Estates Ltd, CC 137 of 2010, decided on 12.02.2015, Santosh Johri Vs M/s Unitech Ltd, CC 429 of 2014 and connected Cases, decided on 08.06.2015, Aloke Anand Vs M/s Ireo Grace Pvt Ltd & Others, CC no 1277 of 2017 decided on 01.11.2021) that purchase of a house can only be for a commercial purpose if the purchaser is engaged in the business of purchasing and selling houses or plots on a regular basis, solely with a view to make profit by way of sale of such houses, if the house is purchased purely as an investment and the purchaser is not undertaking the trading of houses on regular basis, then it would be difficult to say that he had purchased it for commercial purpose. The plea of OP that delay was due to force majeure circumstances is not valid as even after a gap of more than 8 years from the committed date given in the agreement, 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. In Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghvan (2019) 5 SCC 725, Hon’ble Supreme Court observed that “a term of a contract will not be final and binding if it is shown that the flat purchasers had no option but 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.”
In the instant case, 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 complainants 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: -
(i) The OP shall refund the entire principal amount of Rs.55,98,957/- (Rupees fifty five lakhs ninety eight thousand nine hundred and fifty seven 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(s) 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 the Consumer Complaint, if any, also stand disposed off.
Annexure-A
Details of the Unit and other related details
Sr No
Particulars
1
Project Name/Location etc
Ansal Crown Heights, Sector 80, Faridabad
2
Apartment no
T-7/203
3
Size (Built up/Covered/Super Area)
1803 sq. ft.
4
Date of signing Agreement (ABA)
17.12.2011
5
Committed date of possession as per Agreement
17.12.2014
6
In case the Complainant(s) are not the original allottees, D/o Transfer by the OP(s) in the name of Complainant(s)
04.08.2012
7
Total Consideration as per agreement
Rs. 57,16,411/-
8
Amount Paid
Rs. 55,98,957/-
9
D/o Filing CC in NCDRC
02.11.2017
10
D/o Issue of Notice to OP
04.12.2017
11
D/o Filing Reply/Written Statement by OP
05.02.2018
12
D/o filing Rejoinder by the Complainant(s)
09.08.2019
13
D/o Filing Evidence by way of Affidavit by the Complainant(s)
09.08.2019
14
D/o filing Affidavit of admission/denial of documents filed by Complainant(s)
09.08.2019
15
D/o Filing Evidence by way of Affidavit by the OP
02.09.2019
16
D/o filing Affidavit of admission/denial of documents filed by OP
02.09.2019
17
D/o filing Written Synopsis by the Complainant(s)
10.08.2022
18
D/o filing Written Synopsis by the OP
16.08.2022