AI Structured Summary
Not yet generated for this judgment
Judgment
Subhash Chandra, Member
This complaint under section 21 of the Consumer Protection Act, 1986 is filed by the complainants alleging deficiency in service and unfair trade practice on account of the delay in handing over possession of the flat seeking refund of the amount deposited along with penal interest and other compensation in respect of the flat booked by them with the opposite party viz., M/s Ireo Grace Realtech Pvt. Ltd., in a project promoted and developed by it.
Briefly, the facts of the case are that the complainant had booked a flat in the project “The Corridors” promoted and developed by the Opposite parties located at Sector 67 A, Gurugram, Haryana on 22.03.2013 for their residential purpose. An offer of allotment letter was issued by the opposite party to the complainant on 07.08.2013 allotting CD – A 3-03-303, 3rd Floor, Tower A 3, admeasuring 1920.22 sq ft for a total sale consideration of Rs.1,92,17,760.34/-. The complainant deposited Rs.1,69,50,040/- towards this flat by way of instalments between on various dates. An Apartment Buyers Agreement (in short, ‘the ABA’) was entered into between the complainant and the opposite party on 10.07.2014. As per clause 13.3 of the ABA, the OP committed to offer possession of the flat within 42 months with an additional grace period of 180 days from the date of building plan approval, with further extended delay period of 12 months from the expiry of grace period. The building plan approval was obtained on 23.07.2013. Under clause 13.4 of ABA, possession was to be given by the opposite party by the end of grace period, failing which compensation at the rate of Rs.7.50 per sq foot of the super area was promised by the opposite party to the complainant. Further, the complainant has availed loan facility from the HDFC Bank Limited also.
The complainants have averred that as per clause 13.5 of the agreement, the opposite party is liable to pay compensation @ 7.5 per sq ft super area per month to the complainant i.e. Rs.9718.35 per month to the complainant till 03.02.2019 as there was delay of 23 months which amounts to Rs.2,23,522/-. As on the date of filing of the complaint before this Commission (15.07.2019) the project has not yet been completed. Hence, the complainants have sought full refund of the deposited amount and other reliefs as per the following prayer:
(i) Allow the present complaint;
(ii) Direct the opposite party to grant refund of the amount of Rs.1,69,50,040/- paid by the complainants till date at an interest rate of 18% from the date of making the payment till the date of refund of the amount;
(iii) Direct the opposite parties to pay compensation to the tune of Rs.10,00,000/- for the mental and financial harassment faced by the complainants till date;
(iv) Direct the OP to pay the litigation expenses to the complainants to the tune of Rs.50,000/-; and
(v) Pass such other or further order/ orders as may be deemed fit and proper on the facts and in the circumstances of this case.
The opposite party has contested the complaint by way of reply and affidavit in evidence. The OP in his reply has stated that OC for Tower A 3 stands applied for on 10.09.2019 and is expected soon. The complainants defaulted in making payments from 2014 to 2017 for which several reminders were sent. It is therefore claimed that as per section 51 of the Contract Act, OP is not bound vis-à-vis the complainant. It is contended that the complaint was premature as the period of 48 months needs to be calculated with effect from 27.11.2014, the date on which the fire safety scheme was approved. The OP further stated that the reasons for non-completion of project was subject to force majeure.
It is contended that as per CP Act, 1986 there was no jurisdiction on this Commission to either modify, amend or rewrite the terms of the ABA. It is also averred that the complainant is not a “consumer” since he had booked the flat for speculative gains. Opposite party further stated that construction had been completed and occupation certificate has been obtained and notice of possession issued to the complainant. Therefore, there was no deficiency in service involved. The complainant was finding it difficult to pay instalments to the OP and even though the payment plan was changed, the complainant had been unable to pay instalments.
The OP has relied upon the judgment of Bharti Knitting Co. vs DHL World-wide Courier (1996) 4 SCC 704 as well as Morgan Stanely Mutual Fund vs Kartick Das (1994) 4 SCC 225, wherein the Hon’ble Apex Court has held that a prospective buyer is not a consumer. It is also contended that as the complainant had not hired any services from the opposite party, the law laid down in Bangalore Development Authority vs Syndicate Bank (2007) 6 SCC 711 would apply.
It is contended by the opposite party that there is no cause of action to file a complaint in the year 2019 for refund of money alleged to have been paid in 2016. The complaint being without any just, tenable or substantial cause of action was liable to be dismissed on this ground alone. It is also submitted by the opposite party that occupation certificate with regard to Phase 2 has been applied and had also offered the complainant amongst other allottees to take possession of a ready to move in unit in Phase I.
We have heard the learned counsel for the complainant and perused the records carefully. Learned Counsel for the complainant has relied mainly on the judgement of the Hon’ble Supreme Court in Ireo Grace Realtech Pvt. Ltd., Vs Abhishek Khanna (2021) 3 SCC 241 dated 11.01.2021 which relates to the same project of the opposite party, i.e., ‘The Corridors’, Sector 67 – A Gurgaon, Haryana. It is his averment that as per this judgement, the Hon’ble Apex Court has taken cognizance of the fact that the project had both completed and incomplete/un-commenced towers in Phases I and II of the project. Based on the fact that the occupancy certificate from the statutory authority was available only in respect of certain towers on the date when the case was filed and noting the fact that the builder-opposite party had not commenced/completed other towers in Phase II, the Apex Court had balanced the interests of both the consumer complainants and the builder-opposite parties by (a) equitably allocating the obligations for a full refund of payment to be made with penal interest to the allottees in the case of incomplete/un-commenced flats for the interregnum between the committed date and the date of making of the offer of possession by the opposite party and (b) the obligation to accept possession where the complainants had prayed for possession to be made with compensation for the delay in the case of flats/towers where construction was completed and occupancy certificate was available. In doing so, the Hon’ble Apex Court reiterated the law with regard to the right of the consumer to seek refund in view of the inordinate delay on the part of the opposite party as laid down in Pioneer Urban land and Infrastructure Ltd., vs Govindan Raghavan in Civil Appeal no. 12238 of 2018 decided on 02.04.2019 (2019) 5 SCC 725. It also reaffirmed that “it would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession” as laid down in Kolkata West International City Pvt., Ltd. Vs. Devasis Rudra, Civil Appeal No. 3182 of 2019 decided on 25.03.2019 and also that in view of an absence of an OC or offer of possession, the right of the complainant to refund with compensation cannot be denied.
Complainants also relied upon the judgment of this Commission in the case of Tarun Kumar and Anr. Vs M/s Ireo Grace Realtech Pvt. Ltd., in CC no. 828 of 2020 wherein it was held that:
“The opposite party is directed to refund the entire amount deposited by the complainants along with delay compensation @ 9% per annum from the proposed date of completion which is 27.11.2018 till the date of offer of possession, i.e., 16.02.2022 within a period of two months of this order. Any delay beyond two months will attract an interest rate of 12% per annum for the same period.”
The admitted facts of the case are that the opposite party had through clause 13.3 of the ABA committed to handing over possession after 42 months with further period of 6 months as the ‘Grace Period’. It is also an admitted fact that the complainant had continued to make deposits of various instalments with the opposite party.
The opposite party has not been able to substantiate its averment that the complainant is not a ‘consumer’, the onus of which is squarely upon him in terms of Kavita Ahuja vs. Shipra Estate Ltd., & Jai Krishna Estate developers Pvt., Ltd. & Ors. I (2016) CPJ 31 (NC). As regards the issue whether the complainants are engaged in booking of this flat for a “commercial purpose”. The arguments that there was no promise of a service amounting to deficiency in service and misrepresentation constituting an unfair trade practice do not hold water as these issues stand settled in Ireo Grace Realtech Pvt. Ltd., vs Abhishek Khanna (supra) as well as in Pioneer Urban Land Infrastructure Ltd., vs Govindan Raghavan (supra).
We have gone through the order of the Hon’ble Supreme Court in Ireo Grace Realtech Pvt., Ltd., (supra) and we are satisfied that the current appeal/ complaint is covered by this judgment as it relates to the same project in which the complainant had booked its flat and the Hon’ble Supreme Court has ordered full refund with interest from the date of the promise of offer of possession till repayment. As this is a covered case, we consider it appropriate to allow the complaint with the following directions:
(a) The opposite party shall refund the amount of Rs.1,69,50,040/- along with simple interest @ 9% per annum from 27.11.2018 (the due date of possession as per the ABA) till the date of payment;
(b) Opposite party is directed to pay litigation costs of Rs 50,000/- to the complainant;
(c) Order to be complied within 3 months of the receipt of the certified copy of the order;
(d) Opposite party shall pay a penal interest of 12% per annum in case of default.
With these directions, the consumer complaint stands disposed of.