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Judgment
The case of the Complainants is that in May, 2014 they booked Flat No.E-901 admeasuring super area of 1695 sq.ft. alongwith two car parking spaces with the Opposite Party in the project, namely, Primera located in Sector 37D, Dwarka Expressway, Gurugram for a total consideration of Rs.1,25,00,148/- as per Apartment Buyer Agreement dated 30.08.2014. In Clause 15 of the said form, the Complainants, vaguely mentions possession to be delivered within 54 months from the date of approval of the building plan by the office of DGTCP. However, the special subvention plan promised that the possession was to be delivered on or before 30.09.2017. The Complainants paid a total amount of Rs.37,50,044/-. The Complainant made several calls and sent emails to ascertain the stage of work as well as the approval of the building plan by DTCP, but in vain. Since there was no response from the Opposite Party and due to urgent financial requirements, the Complainants, vide email dated 03.11.2015, requested for cancellation of the said unit. On 23.02.2016, the Opposite Party assured that refund cheque was ready and only minor formalities were still pending. The offer of the Opposite Party to change the allotment of flat from Tower-E to Tower-A was found not viable and therefore, rejected by the Complainants. Finding no other alternative, Complaint was filed in this Commission with the following prayer:-
“(a) allow the present Consumer Complaint; and
(b) direct the Opposite Parties/Respondents to refund the amount of Rs.37,50,044/- (Rupees Thirty Seven Lakhs Fifty Thousand and Forty Four) to the complainants received by the Respondent on the pretext of consideration in respect of allotment of Flat No.E-901 having building up area of 1695 sq.ft. situated at Block-E of Primera, Ramprastha City, Sector-37D, Dwarka Expressway, Gurugram (Haryana) under subvention scheme; and
(c) direct the Opposite Parties/Respondents to pay interest @ 18% p.a. on the amount deposited by the Complainants with the Respondent from the date of deposit till date of refund; and
(d) direct the Opposite Party/Respondent to compensate a sum of Rs.10,00,000/- (Rupees Ten lakhs) to the Complainants in lieu of mental agony and harassment suffered by the Complainants due to deficiency in service rendered and unfair trade practice adopted by the Respondent; and
(e) award an amount of Rs.One lakh only towards cost of litigation; and pass such other and further order or orders as this Hon’ble Commission may deem fit and proper in the facts and circumstances of the case.”
The Complaint was resisted by the Opposite Party on the ground that the Commission does not have pecuniary jurisdiction to the decide the matter. In the present case, the Complainants have invoked the jurisdiction of this Commission on the basis of total sale consideration of the flat which is untenable and the dispute is only with regard to the amount paid by the Complainants which is Rs.37,50,044/-.
As per Clause 37 of the Agreement, the Complaint has to be referred initially to conciliation and if not resolved, be finally settled in arbitration under the provisions of the Arbitration and Conciliation Act, 1996. On this ground alone, the Complaint was not maintainable. The Complaint involves disputed questions of facts which cannot be decided in a summary proceedings under the Consumer Protection Act and the same is liable to be relegated to the Civil Court.
As regards the merits of the case, the Opposite Party contended that the allotment was made to the Complainant of Flat No. 901 on 9th floor, having area of 1695 sq.mtr. alongwith two parking spaces in Block E for a total consideration of Rs.1,25,00,148/-. The Parties agreed on the terms of the allotment letter and signed a Comprehensive Agreement on 30.08.2014 i.e. the Apartment Buyer Agreement. An advance of Rs.3,00,000/- was paid by the Complainants at the time of provisional allotment of the apartment. As per Clause 15 A of the Apartment Buyer Agreement, the Developer was expected to deliver the flat within a period of 54 months from the date of approval of building plans by the office of DGTCP, subject to Clause 31 of the said Agreement, in which case the date of possession shall get extended automatically. Clause 15(b) of the said Agreement reads as:-
“Subject to Clause 31, in the following circumstances, the date of possession shall get extended automatically:
"If the completion of the Complex including the Apartment is delayed by reason of non-availability of steel and/or cement or other building materials, or water supply or electric power or war or enemy action or terrorist action or earthquake or any act of God or due to any act, notice, order, rule or notification of the government and/or any other Public or Competent authority or due to delay in sanction of any revised building/zoning plans or for any other reasons beyond the control of DEVELOPER, the Allottee agrees that the DEVELOPER shall be entitled to the extension of time for handling over of the possession of the said Apartment/Unit. "
According to Clause 17(a) in the eventuality of delay in handing over possession beyond a period of 6 months from the date of obtaining occupation certificate by the Developer, which may be extended by a period of another four months and subject to the provisions of Clause 31 of the agreement, the allottee will be compensated with Rs.5/- per sq.ft. per month of super area. According to the Opposite Party, time is not essence in delivering possession of the apartment. The stipulated date of delivery was only tentative and was not a firm date which itself denotes that the time was not the essence of the agreement. In the absence of any agreement making time to be the essence of the contract or agreement, the Opposite Party cannot be held negligent in providing the services thereby requiring the Opposite Party to either pay compensation or interest on the deposited amount to the Complainants.
Article 15 (b) entitled the Opposite Party for a reasonable extension of time if the possession was delayed due to circumstances beyond the control of the Developers. The delay in handing over of the possession of the apartment was only on account of road blocks faced in obtaining approvals from different authorities, non-availability of labour, social welfare schemes of the Government such as National Rural Employment Guarantee Act (NREGA) and Jawaharlal Nehru National Urban Renewal Mission (JNNURM) which attracted return of labour to their respective States, creating shortages of labour/workforce in the region, extreme water shortage, shortage of construction material, demonetization, which later prolonged shortages of hard cash throughout the country and non-receipt of permission from the Central and State Govt. Departments among others.
The Complainants had only taken shelter of the medical issue in the family to curtail their intention of reaping the benefit from the Opposite Party, by way of refund of full amount paid by them towards the sale consideration of the flat and to avoid deduction of interest by the Opposite Party.
There was no deficiency in service on the part of the Opposite Party as the Complainants had terminated the contract at their end and not on the ground that there was delay in handing over possession of the unit.
Heard the Learned Counsel for the Parties and carefully perused the record. Learned Counsel for the Complainants stated that the Complainants booked a Flat No. E-901 having super area of 1695 sq. ft. against agreed consideration amount of Rs.1,25,00,148/-, on 15.05.2014. The Complainants paid a total sum of Rs.37,50,044/- to the Opposite Party on 30.08.2014 and 25.09.2014. The booking was made under subvention scheme floated by the Respondent under which no installment was payable before the possession is handed over to the Complainants, except initial the payment of 30% of the price. The Opposite Party promised that possession of the flat would be delivered on or before 30.09.2017. The construction of the project proceeded slowly, as the Respondent had ingeniously linked the possession of the flat with the approval of Building plans by DTCP. Though the Complainant repeatedly asked for the approval of building plan by DTCP, the Opposite Party did not respond. Due to medical issues in the family, the Complainants sought cancellation of the unit. Learned Counsel contended that even today the Opposite Parties have no permission to construct Tower-E in the project where the flat of the Complainant has been booked. The Opposite Party offered an alternative flat in Tower-A in exchange but the offer was not acceptable to them as it was unviable. Despite repeated reminders for refund of money, as no work started in Tower-E and the Opposite Party did not hand over the flat within the prescribed time.
Learned Counsel for the Opposite Party stated that a comprehensive Apartment Buyer Agreement was entered between the Parties on 30.08.2014. Although Clause 15 of the said Agreement stipulated a period for handing over the possession of the Apartment but such Clause has to be read co-jointly with Clause 31 of the Agreement which stipulates force majeure circumstances resulting in extension of time. The Opposite Party was prevented by Force Majeure circumstances which were beyond their control and they could not complete the construction as scheduled. He also held that with respect to the present agreement/transaction, time was not the essence in respect of delivering possession of the Apartment. Clause 13(a) of the Agreement which stipulates the essence of time in the Agreement would only be applicable with respect to the obligation of the allottee to pay the consideration under the Apartment Buyer Agreement. Without prejudice to the above, the Complainant is not entitled to interest in excess of 7% p.a. on the refund of the purchase consideration paid by them to the Opposite Party in light of the prevailing market conditions. Any decree to repay the principal amount with exaggerated rate of interest will cause serious prejudice and loss to the Opposite Party and will prolong the completion of the project(s).
Admittedly, the Complainant entered into an Apartment Buyer Agreement on 30.08.2014 with certain terms and conditions. Clause 15 of the Agreement reads that possession would be delivered within a period of 54 months from the date of approval of building plan by the office of DGTCP. The flat was booked under subvention scheme under which no installment was payable before the possession is handed over to the Complainants, except the initial payment of 30% of the price. The Complainants had paid a total sum of Rs.37,50,044/- to the Opposite Party on 30.08.2014 and 25.09.2014. A Tripartite Agreement was also signed between the Complainant, Banker as well as the Opposite Party on 10.08.2014. The subvention scheme with HDFC ended in September 2017. As the construction of the project was getting delayed and due to medical issues in the family of the Complainant requiring financial assistance, the Complainants sought to cancel the allotment of the said unit. The Opposite Party had also admitted delay in construction of Tower-E and, therefore, as an alternative, another unit in Tower-A was offered by them which was not accepted by the Complainant. It was stated by the Learned Counsel for the Opposite Party in the written submissions and also during the course of arguments that the project would be completed in a year from now i.e. by June, 2023.
It was contended by the Opposite Party that since amount paid by the Complainant was less than Rupees one crore, this Commission lacked pecuniary jurisdiction to entertain the Complaint. According to Section 21 of the Consumer Protection Act 1986, National Commission shall have jurisdiction to entertain complaints where the value of the goods or services and compensation, if any, claimed exceeds Rs.one crore. In the instant case, the flat was booked for a total consideration of Rs.1,25,00,148/- which itself is beyond Rs.one crore and therefore, this Complaint squarely falls within the jurisdiction of this Commission.
Learned Counsel for the Opposite Party argued that the Complaint involved disputes questions of facts which cannot be decided in the summary proceedings under the Consumer Protection Act. By any stretch of imagination, we do not find any complicated questions of law in the matter which would require detail evidence by way of examining witnesses and this case can very well be decided in a summary proceeding which this Commission is competent to do so.
It was also contended by the Opposite Parties that since the agreements between the parties contained an arbitration clause, arbitration and not a complaint before this Commission was the appropriate remedy. We, however, find no merit in this contention. As provided in Section 3 of the Consumer Protection Act, the provisions of this Act are in addition to the other remedies available to a Consumer. The availability of arbitration as a remedy, therefore, does not debar the Complainant from approaching a Consumer Court in a case of deficiency in service rendered to him by the service provider or adoption of unfair trade practices. This issue came up for consideration of the Hon’ble Supreme Court in National Seeds Corporation Vs. M. Madhusudhan Reddy & Anr. (2012)2 SCC 506 and after taking into consideration provisions of the Section 8 of the Arbitration Act of 1996 and the Section 3 of the C.P. Act it was held that the plain language of Section 3 of the C.P. Act makes it clear that the remedy available in the Act is in addition to and not in derogation of the provisions of any other law for the time being in force. The Hon’ble Supreme Court has also held that a Complaint filed by a consumer before the consumer fora would be maintainable, despite there being an arbitration clause in the agreement. In view of the above referred authoritative pronouncement of the Hon’ble Supreme Court, which was later followed by a three member bench of this Commission in DLF Ltd. Vs. Mridul Estate Pvt. Ltd., R.P. No.412 of 2011 decided on 13-05-2013, the aforesaid contention advanced by the Opposite Party is rejected.
The Opposite Party details certain circumstances which led to the delay in the project like roadblocks in seeking approvals, slow-down of the economy, commonwealth games leading to shortage of labour, water shortage and raw-material shortage among others. Neither any new legislation was enacted nor an existing rule, regulation or order was amended stopping, suspending or delaying the construction of the project in which the apartment was agreed to be sold to the Complainant. There was no evidence of any lock-out or strike by the labour at the site of the project. There was no civil commotion, war, enemy action, terrorist action, earthquake or any act of God which could have delayed the completion of the project within the time stipulated in the Buyers Agreement. Possession of the Apartment, as agreed in the Apartment Buyers Agreement, has not yet been delivered to the Complainants. The Opposite Party has not provided any evidence in support of the reasons adduced by them. There being no evidence as to unforeseen and unexpected events which prevented the development of the allotted unit, the Opposite Party cannot take shelter of the force majeure clause. A person cannot be made to wait indefinitely for the possession of the flat allotted to him/her. The reasons stated for force majeure conditions are only delay tactics to handover possession of the Apartment. The Complainants are, therefore, entitled to seek the refund of the amount paid by them along with compensation.
The Opposite Party had also submitted that it was agreed between the parties in the buyers’ agreement that in case of delay in possession, the purchaser would be entitled to a compensation of Rs.5/- per sq. ft. by way of adjustment at the time of final possession. The Complainants were, therefore, bound by the terms and conditions of the agreement and cannot claim any excess amount from the Opposite Party. It is an undisputed proposition of law that ordinarily the parties are bound by the terms and conditions of the contract voluntarily agreed by them and it is not for a Consumer Forum to revise the said terms. However, a term of a contract, in our view will not be final and binding if it is shown that the consent to the said term was not really voluntary, if the person giving consent had no other choice. Payment of a nominal compensation such as Rs.5/- per square feet of the super area has become the order of the day in contracts designed by big builders and a person seeking to buy an apartment is left with no option but to sign on the dotted lines, since the rejection of such a term by him would mean cancellation of the allotment. No reasonable person would volunteer to accept compensation constituting about 2-3% of his investment in case of delay on the part of the builder, when he is made to pay compound interest @18% p.a. for delay on his part in making payment. It can hardly be disputed that a term of this nature is wholly one sided, unfair and unreasonable.
The Opposite Party builder failed to fulfil its contractual obligation of delivering the possession of the flat to the Complainants within the time stipulated in the agreement, or within a reasonable time thereafter. Learned Counsel for the Opposite Party in the reply as well as during the course of arguments clearly stated that the project would be completed in a year from now i.e. by June, 2023. The construction of the apartment booked by the Complainant is getting indefinitely delayed and the Complainant cannot be compelled to wait indefinitely for taking possession of the flat. It is very surprising that the Learned Counsel for the Opposite Party holds the view that the time was not essence in delivering possession of the apartment. Clause 13(a) of the Agreement which stipulates that the essence of time is applicable only with respect to the obligation of the allottee in paying the consideration for the apartment is one sided. The Apex Court in a numerous cases held that a consumer cannot be kept to wait for taking possession of the apartment. In these circumstances, the respondent flat purchaser was entitled for the relief prayed i.e. refund of the entire amount deposited alongwith compensation.
The Complainants would be entitled only to compensation commensurate with financial loss actually suffered by them on account of the delay on the part of the OP in handing over the possession of the apartments, apart from compensation. They cannot make a windfall gain over and above the actual loss suffered by them. It would be reasonable, just and fair to refund the amount paid by the Complainants and compensation in the form of interest @9% p.a.
In view of above, we direct the Opposite Party to refund the amount of Rs.37,50,044/- paid by the Complainants alongwith compensation in the form of simple rate of interest @9% p.a. with effect from the respective date of each payment, till the date of refund with compensation within a period of 03 months. The rate of interest shall be enhanced to 12% p.a. if the amount directed is not paid within the above mentioned period. The Opposite Party shall also pay Rs.25,000/- towards cost of litigation to the Complainants. The Consumer Complaint stands disposed of.