Saibal Biswas & Anr vs M/s Imperia Structures Ltd

Deepa Sharma, Presiding Member

The brief facts of the case are that the complainants who are husband and wife had booked a residential flat No. A-1502 in the project, namely, The Esfera, in Sector 37-C, Gurugram, Haryana vide application dated 08.10.2011.  The total consideration price of the flat was Rs. 78,94,300/-.  The said flat was allotted to them. The complainants  had paid a total sum of Rs.77,28,840/- towards the cost of the said apartment through various modes including RTGS and cheques.  The Flat Buyer Agreement was executed on 06.09.2013.  The construction of the said property could not be completed by the opposite party even after expiry of the 5 years from the date of booking.  The due date of handing over of the possession was 05.09.2016 as per the agreement and on visit of the site, the complainants found that only the civil structure of the said project was completed till his last visit on 20.01.2018.  He sent legal notice asking for the refund of the amount as the opposite party had failed to hand over the possession within the stipulated period.

Notice was issued to the opposite party.  The opposite party filed its reply to the said complaint stating therein various reasons for the delay.

It is an admitted position that all the grounds which have been taken by the opposite party in reply have been rejected by this Commission in a number of consumer complaints instituted against the opposite party including CC No. 3072 of 2017 titled Yogesh Maan & Anr. Vs. M/s Imperia Structures Ltd decided on 29.07.2019.  It is also an admitted fact that subsequent Complaint no. 693 of 2018 titled Gaurav Agarwal & Anr. Vs. M/s Imperia Structures Ltd. decided on 07.01.2020 has also been decided following the findings of this Commission in the case of Yogesh Maan ( supra )

The relevant findings of this Commission in Yogesh Maan ( supra ) to the extent it is relevant reads as under:

“3. The Developer filed their Written Version, inter alia, stating that this Commission does not have pecuniary/territorial jurisdiction to entertain the Complaint. The Complaint pertains to a commercial transaction and should be referred to an Arbitrator. Flat No. D-1604 in the project in question had been allotted to the Complainants as per terms and conditions of the Agreement executed between the parties and the consideration agreed to be paid by the Complainants to the Developer was Rs.74,31,275/- as per the construction linked plan. The construction of the project was to be completed within a period of three and half years from the date of execution of the agreement unless there was delay/failure due to reasons beyond the control of the Company, including Force Majeure events, compliance of new rules, regulations, orders or notifications made/issued by the Government or any other authorities with respect to construction at the project site. All other charges other than Basic Sale Price were informed to the Complainants at the time of submission of the application form and the charges towards Car Parking, PLC, Club Membership etc. form part of the consideration of the flat. The value of the flat has appreciated since the date of booking. The Complainants despite alleged delay in the project did not exercise the option to cancel the booking under Clause 11.4 of the Agreement and are taking the benefit of appreciation on cost of the flat. The delay in the completion of the project was on account of various orders passed by National Green Tribunal, De-monetization, delay in the approvals/sanctions, non-payment of dues by the allottees, contractual labour strikes, and delay in providing external development works by the government authorities etc.

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The facts not in dispute are that the Complainants entered into a Builder Buyer Agreement with the Developer in the year 2013 and paid a sum of Rs.62,06,167/- out of the total sale consideration of Rs.73,31,275/-, but admittedly the subject apartment is still not completed though the stipulated period of 42 months from the date of execution of the agreement, entered into between the parties, for handing over possession of the apartment booked had expired long back.

The Developer in their Affidavit of evidence submitted that the Complainants are not ‘consumers’ as the subject flat was purchased for commercial purpose. This Commission in FA No. 530 of 2015 (Sai Everest Developers & Anr. Vs. Harbans Singh) has laid down the principle of law that when the plea that the said flat has been purchased for commercial purpose is raised by the Developer, the onus of proof shifts to the Developer to establish whether the Complainant has purchased the subject flat for trading/dealing in real estate. In the instant case there is no documentary evidence to establish that the Developer has discharged this onus. In the absence of any evidence to substantiate this contention, we are of the considered view that the Complainants are ‘consumers’ as defined u/s 2(1)(d) of the Consumer Protection Act, 1986. We are also of the view that this Commission has the Territorial Jurisdiction to entertain this Complaint and the plea raised by the Developer regarding Arbitration has already been settled by the decision of a Larger Bench of this Commission in Consumer Complaint No. 701 of 2015, Aftab Singh Vs. EMAR MGF Land Limited & Anr., which has also been recently affirmed by the Hon’ble Apex Court. Further, in view of Larger Bench decision of this Commission in Ambrish Kumar Shukla Vs. Ferrous Infrastructure Pvt. Ltd. – I (2017) CPJ 1 (NC), this Commission also has the pecuniary jurisdiction to entertain the Complaint.

It is pertinent to note that the Developer has not filed any evidence to support his contention that the delay occurred due to force majeure events. In fact demonetization, non availability of water and contractual labour, delay in notifying approvals etc. cannot be construed to be force majeure events from any angle.

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Keeping in view the admitted incomplete construction and considering the stipulation provided in Clause 11.4, this Complaint is partly allowed, directing the Developer to refund the amount deposited with simple interest @ 9% p.a. from the respective dates of deposits till the date of realization together with costs of ₹50,000/- to be paid to the Complainants.”

The evidence on record clearly shows that opposite party had failed to hand over the physical possession within the stipulated period.  Therefore, it is clear that it is a covered case covered by the order of this Commission in case of Gaurav Agarwal & Anr. ( supra ).

We allow the complaint and issue following directions:

i.  The opposite party is directed to refund the entire amount of Rs.77,28,840/- to the complainants along with Simple Interest @ 9% p.a. from the date of each payment till the date of refund together with cost of litigation of Rs.50,000/-.

ii. If this direction is not complied within four weeks from the date of receipt of copy of this order, the  principal amount shall carry interest @ 12% p.a.

With these directions, the Complaint stands disposed of.