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Judgment
Subhash Chandra, Member
This is a complaint filed under section 21 (a) (i) of the Consumer Protection Act, 1986, alleging deficiency of service and unfair trade practice by the opposite parties viz., M/s Lotus Green Developers Pvt. Ltd., and Three C Properties Pvt., Ltd.
The brief facts of the case are that the complainant had booked a flat in ‘Lotus Isle’ project of the opposite parties at Commercial Plot number H – 10, Sector 98, Noida, Uttar Pradesh, India on 21.02.2014. The complainant was allotted flat no. 1102, Tower 2 of the Project ‘Lotus Isle’ by the opposite party at a total sale consideration of Rs.2,16,97,475/. The complainant has submitted that he has paid Rs.67,20,743/- between February 2014 and January 2016 on various dates to the OP. As he has found the pace of the construction of the project of the OPs to be tardy and very unsatisfactory, he made enquiries with the relevant authorities in Noida through RTI application dated 23.07.2016 and was informed vide reply of the said authority on 08.09.2016 that no application for permission for the project had been filed by Lotus Green Developer Private Limited in respect of the project ‘Lotus Isle’ in sector 98, Noida. It is also alleged by him that approvals under section 4 of the UP Apartments Act, 2010 and relevant rules thereunder require such a permission. Despite several requests made by the complainant, the OPs did not execute any Apartment Buyer Agreement with the complainant. He, thereafter, served notice on the OPs on 21.06.2016 requesting for cancellation of the booking of the flat and sought refund with interest on the money already deposited along with damages. The complainant is before this Commission with the following prayers:
a. The opposite parties be directed to refund Rs.67,20,743/- along with interest @ 18% per annum (Rs.21,82,157/- till December 2016) total comes to Rs.89,02,900/- and further interest @ 18% till the actual payment to the complainant;
b. That the opposite parties be directed to pay Rs.15 lakh as compensation for mental agony and harassment caused by the opposite parties to the complainant;
c. That the opposite parties be directed to pay Rs.1.00 lakh as cost of litigation and other expenses to the complainant; and
d. Any other relief which Hon’ble Commission feels fit and proper in the interest of justice may kindly be awarded in favour of the complainant against the opposite parties.
The OPs in their joint reply as group of companies have contested the claim of the complainant on the grounds of pecuniary jurisdiction of this Commission to entertain the present complaint. It has also been submitted that the complainant failed to execute the Apartment Buyers Agreement which was sent to him on 15.09.2015 wherein as per clause 23 of the delivery schedule of 42 months from the date of execution of the said agreement with period of six months grace which has been stipulated with reasonable extension of time in the event of any default or negligence attributable to the applicant. The OPs have contended that the complainant is a defaulter and has failed to execute the agreement despite reminders dated 18.10.2016 and 16.03.2017. According to the OPs even if the date of agreement is reckoned from 15.09.2019, i.e., the date they claim to have sent the said Apartment Buyer’s Agreement to the complainant, the OPs have time to construct and develop and offer the possession of the allotted unit till 14.09.2019. It is also submitted that the construction of the project is in full swing. An amount of Rs.47,21,702.50 is stated to be outstanding from the complainant as on 12.05.2017 and therefore, the present complaint is not maintainable as it is not a case of deficiency in service but rather one of default in payment. According to the OPs, the complainant is at best entitled to refund of the amount paid till date less 10% of the total consideration to be deducted as earnest money and other expenses such as outstanding interest, brokerage, commission, taxes etc. The other claims of the complainant are contended to be in admissible.
It is also stated that the OPs have obtained sanctions and approvals from the relevant authorities prior to receiving the application for booking from the complainant and therefore, the complaint is without any cause of action.
Parties have led their evidences. We have heard the learned counsel for the parties and perused the records carefully.
It is evident that no agreement between the builder and the buyer has been executed. The complainant claims that no such agreement was made available. The OPs state that the same was conveyed to the complainant on 15.09.2015 followed by reminder dated 16.03.2017. Be that as it may be, the complainant continued to make payments to the OPs between 21.02.2014 till January 2016 which is not denied by the OPs. There is no evidence submitted by the OPs in support of their contention that the complainant was a habitual defaulter in making payments till January 2016. By his own admission, the OP has contended that it continued to receive payments till 2016 and that the complainant has sought refund vide letter dated 21.06.2016.
The OPs have not submitted any documents in support of their claim that the necessary statutory approvals under the UP Apartment Act, 2010 and from the Noida authorities was available prior to the launch of this project which the complainant has alleged on the basis of the reply to the RTI application to the Noida authorities, a copy of which has been filed before us.
The OPs contention that OP nos. 1 and 2 are different entities with the OP no.1 being a marketing agency while the OP no.2 is executing the project and therefore, filed for permission from the Noida authorities has not been supported by any documentary evidence. Reply on behalf of the OPs to this Consumer Complaint filed on 18.05.2017 states that OP nos.1 and 2 are group companies and their registered office is at the same address.
Another contention of the OPs is regarding the pecuniary jurisdiction of this Commission to entertain the present complaint. In view of the this Commission’s order in the case of Renu Singh vs Experion Developers Private Limited in CC no. 1703 of 2018 decided 26.10.2021, this Commission has held as under:
(i) The Full Bench of this Commission in Ambrish Kumar Shukla & 21 Ors. Vs. Ferrous Infrastructure Pvt. Ltd., I (2017) CPJ 1 (NC) lays down the law correctly on the issue relating to pecuniary jurisdiction.
(ii) What should be the value of goods or services where the refund of paid money has been sought?
Answer:- Sale consideration, which was agreed between the parties for buying the goods or hiring or availing the services is relevant for determination of pecuniary jurisdiction in cases of refund also.
(iii) What should be the period for which the interest should be taken as compensation for adding to the value of goods or services for the purpose of availing the pecuniary jurisdiction of the consumer forum?
Answer:- For the purposes of determination of pecuniary jurisdiction, the rate of interest or period of interest as claim in the complaint alone has to be examined. However, the claim has to be proved in accordance with law and the relief is always subject to law of limitation and rule of estoppel and acquiescence. In view of power of condonation of delay as provided under Section 24-A (2) of the Act, the limit of two years for calculation of interest cannot be fixed either for the purposes of pecuniary jurisdiction or for granting the relief.
As the claim of the complainant included interest and other compensation, it is apparent that there is no pecuniary bar on entertaining of such a complaint by this Commission.
10 . It is contended by the OPs is that the complainant is not a ‘consumer’ in terms of definition of ‘Consumer’ vide section 2 (d) of the Consumer Protection Act, 1986. No evidence has been adduced by the OPs in support of such a claim. The onus to prove that they are not consumers is squarely upon the Opposite Party. In Rajnish Bhardwaj and Ors vs M/s CHD Developers Ltd., and Ors in CC no. 3775 of 2017, decided on 26.11.2019, this Commission has observed as under:
“13. The first contention of the Learned Counsel for the Opposite Party that the Complainants are not “Consumers” and only “investors” is not supported by any documentary evidence. In a catena of judgments, this Commission has laid down that the onus of proof shifts to the Opposite Party to prove that the Complainant is “investor” and it is observed that the Opposite Party did not discharge their onus of proof regarding this aspect. Hence, we are of the considered view that the Complainants are “Consumers” as defined under Section 2 (1) (d) of the Consumer Protection Act, 1986”.
This contention is therefore, not acceptable as no proof to the contrary has been submitted or evidence provided. It is seen that the flat was booked on 21.02.2014 and the complainant has been waiting for its completion for the past 36 months as on the date of hearing. In the case of Pioneer Urban Land & Infrastructure Ltd. V. Govindan Raghavan, II (2019) CPJ 34 (SC), and in Wg. Cdr. Arifur Rahman Khan v DLF Southern Homes Pvt Ltd (Civil Appeal No. 6239 of 2019) the Hon’ble Supreme Court has held that the flat purchasers cannot be made to wait for inordinate period of time hoping to get possession and that refund of amounts deposited is a valid redressal. As on date, the OPs have also not offered the possession of the flat in question to the complainant. It is evident, by OPs own assertion in its written submission, that even if reckoned from the date of the Builder Buyer’s Agreement, (which is itself in dispute having not been signed), the date by which flat was to be offered to the complainant should be 14.09.2019, that there is deficiency in service as on date. Having continued to accept the payments from the complainant till January 2016 and not having provided any details of all necessary clearances of the project also constitutes unfair trade practice, inasmuch, as it deprives the complainant as a consumer of the flat booked in the the project for which he was depositing his hard earned money. Except a bald statement that the complainant is a defaulter, the OPs have not provided any evidence of action taken by them prior to the date on which the consumer applied for the refund such as any notice for payment with interest or cancellation of the allotment of the flat in support of their claim that the complainant is a defaulter.
In view of the above, the following order is made:
i. The opposite party shall refund the entire amount of Rs.67,20,743/- to the Complainant with 9% simple interest from the date of respective deposits till date of payment;
ii. The Opposite Party shall also pay Rs.50,000/- as litigation costs to the complainant;
iii. Payment shall be made within three months of this order. In case of default, the compensation shall be payable with a penal interest of 12% for the period of delay.