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Judgment
Subhash Chandra, Member
This complaint has been filed under section 21 of the Consumer Protection Act, 1986 (in short, ‘the Act’) alleging deficiency in service and unfair trade practice by M/s Anand Divine Developers Pvt., Ltd., New Delhi, the opposite party, in respect of a residential apartment booked by the complainants in the project “Triumph” in Sector 104, Gurgaon, Haryana, promoted and developed by the opposite party.
In brief, the facts of the case are that the complainants had booked a flat in the above project in June 2012 and on 15.09.2012 were allotted residential apartment no. 3221, 22nd Floor, Tower/ Building no. 3, ad-measuring 2290 Sq ft (super area approximately) along with two car parking for a sale consideration of Rs.1,34,66,750/-. A Buyer’s Agreement (in short, ‘the Agreement’) was executed between the parties on 18.12.2012. As per clause 18 of the Agreement, the opposite party assured to hand over the possession within a period of 36 months from the date of start of the construction with an additional grace period of six months. It is contended by the complainants that according to this clause the date of handing over the possession was 18.06.2016. The complainants have opted for a down payment plan and paid Rs.1,31,35,993/- between 15.09.2012 to 31.08.2013. The complainants have averred that the agreement was framed by the opposite party in an unfair and one sided manner which was presented to them for acceptance after they had already paid substantial amount towards the flat leaving them with no option but to accept the same and that this was an unfair trade practice. Although the flat was to be completed in 2015 (with grace period till 18.06.2016), the project is not yet complete and no offer of possession has been made by the opposite party. They have also not received the completion certificate. The delay is stated to be wilful and inordinate. In addition it has been averred as per agreement (clause 19) of compensation of Rs.5 per sq foot for the delay is wholly one sided since the penalty for delay in making payment by the complainant carries a liability of 18% interest. The complainants have sought refund of their money deposited with the opposite party along with interest, compensation and other costs as per the following prayer:
a. Direct the opposite party to refund to the complainants a sum of Rs.2,64,61,271/- (i.e., entire amount of Rs.1,31,35,993/- paid by the complainants along with compensation in the form of interest of Rs.1,33,25,278/- as calculated upto 31.05.2018) at the rate of 18% per annum calculated from the date of accrual, along with pendent lite and future interest at the same rate or such higher rate of interest which this Hon’ble Commission may deem fit in the interest of justice, from the date of making payments till the date of actual realisation of the payment;
b. Grant cost of litigation to the complainants; and
c. Any other order, relief or direction which this Hon’ble Commission may deem fit and proper under the circumstances of the case may kindly be passed in favour of the complainants and against the opposite party.
The complaint has been contested by the opposite party by way of reply. The opposite party has taken the preliminary objections that the complainants are not consumers under section 21 (1) (d) of the Act but are rather investors who are seeking speculative gains. It is also contended that the Agreement is a contract under which the remedy lies in a civil court and this complaint is without jurisdiction in this Commission. It is also contended that there is no service involved in terms of the judgment of the Hon’ble Supreme Court in the case of Bangalore Development Authority vs Syndicate Bank (2007) 6 SCC 711, wherein it was held by the Hon’ble Supreme Court that:
“where the development authority having received the full price, does not deliver possession of the allotted plot/ flat/ house within the time stipulated or within a reasonable time, or where the allotment is cancelled or possession is refused without any justifiable cause, the allottee is entitled for refund of the amount paid, with reasonable interest thereon from the date of payment to date of refund. In addition, the allottee may also be entitled to compensation, as may be decided with reference to the facts of each case”.
The opposite party has contended that the remedy under section 14 (1) (d) of the Act lies only if there is specific allegation of deficiency attributable to it, supported by proof, which is not so in the instant the case. It is contended that a court can verify the terms of the Agreement in terms of the Bharathi Knitting Company Vs. DHL Worldwide Express Courier Division of Airfreight Ltd., - (1996) 4 SCC 704 dated 09.05.1996, wherein it has been held that “a person who signs a documents containing certain contractual terms is bound by such contractual terms’. The complainant is entitled to compensation, only if negligence of the opposite party is established. In the case of Chief Administrator HUDA and Anr. vs Shakuntala Devi – in Civil Appeal no.7335 of 2008 that the ‘Fora constituted under the Consumer Protection Act are vested with jurisdiction under section 14 (1) (d) of the Act to award compensation to the consumers only for any loss or injury suffered by the consumers ‘due to the negligence of respondent’.
It is also contended that compensation cannot be a bonanza as held by the Hon’ble Supreme Court in the case of Ghaziabad Development Authority vs Balbir Singh in Civil Appeal no.7173 of 2002 decided on 17 March, 2004 which states that “compensation is just equivalent for loss of goods or services suffered by a person and that compensation needs to be based upon the rational quantification”. Reliance is also placed on Laxmi Cotton Traders Ltd. v/s Central Warehousing Corporation & Others decided by this Commission in Original Petition no. 98 of 1994 on 21 June 1996, wherein it has been stated that “award of compensation by Consumer Forum can be made only on well recognized principle, governing the quantification on a rational basis, on consideration of documentary and oral evidence produced showing the extent of loss suffered and to the extent of loss as has been caused by the respondent’s default or resulting as a direct result of negligence”.
On merits, it is argued that the Agreement does not provide any commitment on the date of possession but was only a probable date on which the construction was likely to be completed. It is submitted that an application for occupation certificate has been filed by the opposite party on 03.10.2016 and offer of possession is likely to be made soon. It is his contention that the date of filing of the application for occupation certificate is to be reckoned as the date of completion of the project and therefore there is no inordinate delay. It is contended that the complainant is a defaulter and that Rs.70 lakh is still to be paid. It is also contended that there has been no unfair trade practice on the part of the opposite party and that as the Agreement has been voluntarily signed by the complainant, he cannot alleged that the same was unfair.
Parties led their evidence. The opposite party has filed his reply. Parties have also filed their short synopsis along with the case laws relied upon. We have heard the learned counsel for the parties and have carefully considered the documents on record.
There is no dispute regarding booking of the flat and the amount paid by the complainant. It is also not denied that there has been a delay in completion of the project. The respondent has, however, contended that there has not been inordinate delay with regard to the date reckoned as per clause 18 of the agreement. It is the complainant’s case that the residential flat booked was a bona fide requirement for use by the complainant’s son and that he is a ‘consumer’ under the Act. According to the complainant the agreement is one sided and unfair since clause 10.3 makes him liable for penalty of interest of 18% for default in payment, while clause 19 provided for compensation of Rs.5/- per sq foot for any delay on the part of the opposite party. It is also contended that since the agreement has specifically stated that as per clause 18 the possession would be offered within 36 months with additional six months grace period, the contention that there was no commitment on the time line of the project is erroneous and unfair to him as a consumer.
Addressing the preliminary contentions of the opposite party that the complainants are not ‘consumers’ it is relevant to note that in Kavita Ahuja Vs. Shipra Estates I (2016) CPJ 31, it has been categorically laid down by this Commission that the onus of proving that complainants are not consumers lies upon the opposite party which in the instant case it has failed to prove by way of any documentary evidence It has also been held by the Hon’ble Supreme Court in Laxmi Engineering vs PSG Industrial Institute (1995) 3 SCC 583 that “a person may buy 2 or 3 houses if the requirement of his family cannot be met in one house. Therefore, it would be incorrect to say that in every case where a person owns more than one house, the acquisition of the house is for commercial purpose”. This contention is, therefore, not valid.
As regards the contention of the opposite party that the complaint pertains to a dispute under the Contract Act and needs to proceeded in a Civil Court, the Hon’ble Supreme Court in the case of M/s Emaar MGF Land Limited Vs. Aftab Singh - I (2019) CPJ 5 (SC) held that an arbitration clause in the Agreement does not bar the jurisdiction of the consumer fora to entertain the complaint. Hence, the objection of the opposite party that the clause of arbitration bars this Commission from entertaining the complaint is unsustainable.
In a catena of judgments of the Hon’ble Supreme Court and this Commission have held that the construction of a residential apartment constitutes a ‘service’ and that the delay in not adhering to the indicated time schedule constitutes deficiency in service. The Hon’ble Supreme Court in Civil Appeal No 12238 of 2018 - Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan & Connected Matter decided on 02.04.2019 and in Civil Appeal No. 3182 of 2019 Kolkata West International City Pvt., Ltd., Vs. Devasis Rudra decided on 25.03.2019 and in Fortune Infrastructure Vs Trevor D’Lima (2018) 5 SCC 442 has held that a buyer cannot be expected to wait indefinitely for possession and in a case of an unreasonable delay in offering possession, he cannot be compelled to accept possession at a belated stage and is entitled to seek refund of the amount paid with compensation. It has also been held in Pioneer Urban Land & Infrastructure Ltd., (supra) that in case a builder offers possession after the due date of promised possession, it is the discretion of the allottee to either accept the possession or to seek a full refund of his money with compensation. Accordingly, the prayer of the complainant is liable to succeed.
From the facts of the case, it is apparent that the subject flat was booked in June 2012. It was to be handed over after 42 months i.e., by 18.06.2016. No offer of possession has been made till date. It is evident that while the delay in handing over the possession of the apartment by the opposite party constitutes deficiency in service for which the complainant is entitled for refund along with compensation by way of interest.
The apartment in question was booked in June 2012 and the allotment was made in September 2012. Buyer’s Agreement was signed in December 2012 and even after a lapse of nearly 10 years, there is no offer of possession by the opposite party to the complainants. Therefore, delay is inordinate and the complainant is justified in seeking refund and seeking compensation for the deficiency in service which is writ large in view of the facts above.
In view of the foregoing, the consumer complaint is allowed and the following directions are issued:
(i) the opposite party is directed to refund the entire amount of Rs.1,31,35,993/- paid by the complainant with interest for the delay as compensation @ 9% simple interest from the respective dates of deposits till realisation;
(ii) The order shall be complied with within a period of eight weeks;
(iii) Any delay beyond eight weeks will attract an interest @ 12% per annum for the said period; and
(iv) Rs.50,000/- is awarded as cost of litigation.
This complaint is accordingly disposed off.