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Judgment
Dr. Inder Jit Singh, Member
The present Consumer Complaint (CC) has been filed by the Complainant against Opposite Party (OP) as detailed above, inter alia praying for directions to the OP to:-
(i) Refund the amount of Rs.27,07,640/- along with interest @18% p.a. from the date of deposit till its actual realization; and
(ii) Pay Rs.5,00,000/- as compensation for mental and financial hardships.
(iii) Pay litigation expenses to the tune of Rs.1.00 lakh.
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/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) In the year 2013, the complainant booked a residential apartment by payment of the booking amount of Rs.6,00,000/- in the project of OP namely, “Vatika Seven Elements”, situated at Sector 89A, Vatika India Next 2, Gurgaon for a total consideration of Rs.1,30,94,670/-, out of which the Complainant paid a sum of Rs.27,07,640/-. The Complainant was allotted Unit No. HSG-023/302/Tower A-4, admeasuring 1620 sq.ft.
(ii) Builder Buyer Agreement was executed between the parties on 14.01.2015. As per Agreement, the possession was to be given by the OP within 48 months from the date of execution of Agreement with a grace period of 60 days. The Agreement was executed after two years of booking of the apartment. The OP got executed a one sided unilateral agreement. While in case of complainant making the delay in the payment of instalment he was liable to make payment of 18% delay penalty as penal interest, he was only entitled to the meagre amount of Rs.7.50/- per sq.ft. of the super area per month as delay penalty, in case of the OP failing to complete construction within time. Apart from that in case the developer abandoned the project, the OP was only liable to refund the paid amount with 12% simple interest p.a.
(iii) The OP failed to deliver the possession of the apartment within time. Hence, the Complainant is before this Commission.
The OP in their written statement/reply stated that: -
i.The complaint ought to be dismissed as the same is non-joinder and mis-joinder of parties. The OP vide Addendum dated 05.03.2015 to the BBA, had transferred all its development rights and other rights under the BBA to the Company named “Vatika Seven Elements Pvt. Ltd.” Therefore, the OP herein has been made a party to this Complaint without any basis whatsoever.
ii. This Commission lacks its pecuniary jurisdiction under the Consumer Protection Act, 1986 as the amount sought by the Complainant Rs.27,07,640/- excluding interest @18% per annum is below the pecuniary jurisdiction of this Commission as the Consumer Protection Act, 1986.
iii. The present complaint do not constitute ‘consumer dispute’ as defined in Section 2 (e) of the Consumer Protection Act, 1986 and Section 2 (7) of the Consumer Protection Act, 2019. By virtue of this complaint, the complainant is seeking a relief, which is not covered under the definition of consumer dispute as defined in the Act. The issues raised, relate to the contractual matter arising out of the terms and conditions of the Agreement and interpretation thereof, which can only be adjudicated in civil proceedings. Further, the issues raised in Complaint require elaborate evidence to be led by the parties and cannot be decided in summary proceedings. Hence, the complaint deserves to be dismissed being not maintainable.
iv. The complaint is liable to be dismissed on the ground that the complainant is not a ‘consumer’ within the purview of Section 2(1) (d) of the Act as the complainant had booked the unit with the sole motive of earning speculative gain. The complainant is a dabbler in real estate who had made multiple bookings with a view to sell the unit at a profit.
v. The complainant has been fully aware that as per the Clause 13 of the BBA dated 14.01.2015, the construction of project was contemplated to be completed in 48 months from the date of BBA subject to force majeure circumstances mentioned in clauses 14 to 17 & 37 which provided for extension of time. Despite being aware of general lock down in the Country since March, 2020 due to Covid Pandemic and force majeure circumstances, the complainant has rushed into filing the complaint in a premature fashion. The complaint is thus premature and not maintainable and liable to be dismissed.
vi. An Addendum was executed by and between the parties, whereby the OP transferred all its rights pursuant to the present transaction in the name of the company, Vatika Seven Elements Private Limited. The construction of the alleged Unit/Tower is almost complete and only the final finishing work is pending to be completed, which will be commenced upon offering of its possession.
vii. The complainant is a constant defaulter and the last payment by the complainant towards his dues was made on 03.07.2014 after OP sent multiple reminders for payment and notices of termination. The non-payment of sale consideration by the allottees not only result in slowdown in the construction work but may also attract penal liabilities towards the developer and other allottees irrespective of their status of payment. Due to non-payment of instalments within their due dates, the OP was constrained to issue Notice of Termination dated 04.12.2019 and 03.09.2020.
viii. The OP made its best possible endeavour to complete the construction at the earliest but the same got hampered due to various force-majeure circumstances like issues relating to laying of gas pipe line by GAIL within the project area, delay by HUDA in developing infrastructure, issues relating to high tension lines re-routing, NGT orders, shortage of labour, heavy rains etc. which were beyond the control of the OP.
ix There is no deficiency on the part of the OP as the relationship between the Complainant and OP is that of a seller and buyer, wherein no services were promised to be provided to the Complainant. It is also contended that the case of refund of the amounts paid by the complainant, deduction of the earnest money alongwith other non-refundable should be made as per the terms and conditions of the BBA.
Complainant, in the rejoinder, denied the allegations of OP, with regard to the defaults in payments stating that the complainant opted for a construction payment plan for payment of the total consideration for the apartment under which the OP was supposed to demand instalments upon achieving a certain construction milestone at the project site. Even though the booking form or allotment letter, did not specify the date on which the instalments were supposed to be demanded/paid, it is obvious that the OP was under obligation to demand instalments only after achieving a particular milestone and furnishing proof of start or finish of such milestone. If the demands are made pre-mature i.e., if the demands are made without achieving the said milestone at the project site, the complainant had the option of refraining from making payments of such illegally demanded instalments. In the present case, the demands of instalments made by the OP were not as per the payment schedule and were made on the whims and fancies of the OP which were completely illegal and were in contravention of the provisions of the agreement between the parties. The complainant adhered to the payment plan and made the instalments that were legal and valid.
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.
Contention of OP regarding dismissal of complaint on account of non-joinder and mis-joinder of parties is not tenable as the project was launched by OP and agreement with the complainants has also been signed by Vatika Ltd. i.e. OP only. Moreover, OP is also a signatory to Addendum to BBA. Complainants have made payments to OP, hence OP alone is liable to fulfil its commitments under the agreement. As regards contention of OP of complainants being defaulters, complainants have adequately and satisfactorily responded to these issues as to why no payments were made after 03.07.2014, sating clearly that demands were pre-mature, corresponding stage construction milestones have not reached, the demands of instalments were not as per payment schedule under the construction linked plan. OP has not placed on record the demand letters which remained unpaid along with corresponding proof that particular milestone of stage construction for which a particular instalment was demanded, has been achieved. OP has only produced reminder letters dated 13.01.2015 & 06.02.2015 but these do not state as to which stage of construction has been done for which instalments were demanded vide earlier letters dated 29.10.2014 and 08.12.2014 cited in these reminders, copies of which have not been placed on record. Subsequent letter dated 19.05.2015 is similarly worded, not termed as reminder, but stating in the subject as payment of instalment No(HSG-023-start of Excavation), which means by this date, even as per OP’s own admission only excavation is to start or has started, although nothing more is mentioned in this letter in this regard. Reminder dated 11.12.2017 is for payment of instalment (HSG-Casting of Ground Floor Roof Slab), this reminder refers to earlier letters dated 13.11.2017 vide which above instalment was demanded, but copy of letter dated 13.11.2017 has not been placed on record. It means by 13.11.2017, maximum, ground floor roof slab might have come up, but in the absence of this letter, exact status cannot be ascertained. Similar is the case with letter dated 11.01.2018, which refers to earlier letters dated 11.12.2017 and 13.11.2017. Letter dated 08.06.2018 is reminder for payment of instalment (HSG-023-casting of 4th floor roof slab), it refers to earlier letter dated 19.04.2018, which has not been placed on record, letter dated 24.06.2019 is reminder for payment of instalment (HSG-023-on completion of Superstructure), refers to earlier letter dated 14.05.2019, letter dated 19.09.2019 is another reminder referring to earlier letters dated 24.06.2019 and 14.05.2019. Letters dated 04.12.2019 and 03.09.2020 are notices for termination of said Unit No. HSG-023/302. These state that in the event OP do not receive the payment on or before 7 days from the letter date, OP shall be constrained to cancel/terminate the Apartment Agreement with immediate effect. However, OP has not so far cancelled/terminated the said agreement. From the perusal of various correspondence regarding payments from OP detailed above, it is seen that OP has placed on record only the reminder letters, but has not placed on record copy of the actual demand letters, under which payments linked to particular stage construction have been demanded and which have been cited in various reminders. Hence it is difficult to conclude that complainants were defaulters, as alleged by OP.
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. As per BBA dated 14.01.2015, the total sale price of the unit is Rs.1,30,04,670/-. The contention that present complaint does not constitute a consumer dispute and that complainant is not a consumer as he had booked the unit in question with the sole motive of earning speculative gain/profit by selling it at higher price 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 04 years from the committed date given in the ABA, 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 committed date of possession as per agreement, with grace period, was 14.03.2019. Even now construction is not complete, OC has not been obtained and OP is not in a position to give any firm date for handing over of the possession with valid OC. The contention of the OP that the parties are bound by the agreement is also not acceptable. In Ireo Grace Realtech Pvt.Ltd. Vs. Abhishek Khanna & Anr. (2021) 3 SCC 241, Hon’ble Supreme Court held "Developer cannot compel apartment buyers to be bound by one-sided contractual terms contained in apartment buyers agreement".
In the instant case, there is an inordinate delay in handing over the possession of flat by the OP. In Ireo Grace Realtech Pvt. Ltd. (supra), Hon’ble Supreme Court held that “allottees who have not been given possession, cannot be made to wait indefinitely for possession, nor they can be bound to take possession in other phase of the project. Such allottees are entitled to refund of entire amount deposited by them” and it was also held by the Hon’ble Supreme Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghvan (2019) 5 SCC 725 that “flat purchaser could not be compelled to take possession of the flat, when it was offered almost 2 years after the grace period under the agreement expired”. 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: -
(i) The OP shall refund the entire principal amount of 27,07,640/- (Rupees twenty seven lakh seven thousand six hundred and forty 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.
(v) 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 OPs 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.
‘Seven Elements’
Sector 89A, Gurgaon
2
Apartment no.
HSG-023/302/Tower A-4
3
Size (Built up/Covered/Super Area)
1620 sq.ft.
4
Date of application
08.04.2013
5
Date of allotment
03.10.2013
6
Date of signing Builder Buyer Agreement (BBA)
14.01.2015
7
Committed date of possession as per Agreement (with two months’ Grace period)
14.03.2019
8
Total Consideration as per agreement
Rs.1,30,94,670/-
9
Amount Paid
Rs.27,07,640/-
10
D/o Filing CC in NCDRC
29.11.2019
11
D/o Issue of Notice to OP(s)
04.12.2019
12
D/o Filing Reply/Written Statement by OP
13.09.2021
13
D/o filing Rejoinder by the Complainant(s)
12.07.2022
14
D/o Filing Evidence by way of Affidavit by the Complainant(s)
12.07.2022
15
D/o Filing Evidence by way of Affidavit by the OP
17.02.2022
16
D/o filing Affidavit of admission/denial of documents filed by OP
17.02.2022
17
D/o filing Written Synopsis by the Complainant(s)
04.11.2022 &
12.05.2023
18
D/o filing Written Synopsis by the OP
Not filed