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Judgment
Justice Sudip Ahluwalia, Member
Both these Consumer Complaints are filed under Section 21 of the Consumer Protection Act 1986, against Vatika Limited seeking refund of the entire amount collected by the Opposite Party from the Complainants towards consideration of the residential Units alongwith interest, compensation and costs.
Since the factual matrix and issues involved in both these Complaints are virtually identical, they are now being disposed off by this common Order.
The facts leading upto the present Complaints are that the Opposite Party is engaged in the business of housing construction and allied activities in the region in and around NCR and Delhi. In 2011-2012, the Opposite Party had launched the a Group Housing Project known as “Sovereign Next” situated at Sector- 82A, Gurugram, Haryana. The said Project is a part of the integrated township “Vatika India Next” to be developed in Sectors 82, 82A, 83, 84 & 85 of Gurugram Manesar Urban Complex 2021.
CC/523/2020
The Complainant is an allottee of a residential Apartment in the project “Sovereign Next” of the Opposite Party situated at Sector-82A, Gurugram. In March 2012, the Complainant booked an Apartment in the said Project by paying a booking amount of Rs. 7,73,456/-. The Opposite Party issued to the Complainant an Allotment Letter dated 23.4.2012 whereby Apartment No. 201, Tower-D, was allotted.
On 4.12.2012, a Builder Buyer Agreement was executed between the Complainant and the Opposite Party with respect to the said Apartment measuring 2600 sq. ft. having total sale consideration of Rs. 1,70,10,400/-. The Opposite Party had demanded and the Complainant had paid a total sum of Rs. 1,48,64,390/- (Rupees One Crore Forty Eight Lakhs Sixty Four Thousand Three Hundred Ninety Only) to the Opposite Party.
As per Clause 14 of the said Agreement, the possession of the Apartment was to be handed over within 3 years from the date of execution of the Agreement. Therefore the possession was supposed to be handed over by 4.12.2015. However, the Opposite Party has failed to deliver possession within the stipulated time and even after 04 years from the promised date.
Aggrieved by the delay, the Complainant has filed this Complaint against the Opposite Party on the ground of deficiency in service and unfair trade practice, praying for refund of the money paid alongwith interest and compensation.
CC/524/2020
The Complainant is an allottee of a residential Apartment in the project “Sovereign Next” of the Opposite Party situated at Sector-82A, Gurugram. In March 2012, the Complainant booked an Apartment in the said Project by paying a booking amount of Rs. 9,51,936/-. The Opposite Party issued to the Complainant an Allotment Letter dated 23.4.2012 whereby Apartment No. 302, Tower-C, was allotted.
On 4.12.2012, a Builder Buyer Agreement was executed between the Complainant and the Opposite Party with respect to the said Apartment measuring 3200 sq. ft. having total sale consideration of Rs. 2,07,62,800/-. The Opposite Party had demanded and the Complainant had paid a total sum of Rs. 1,81,27,559/- (Rupees One Crore Eighty One Lakhs Twenty Seven Thousand Five Hundred Fifty Nine Only) to the Opposite Party.
As per Clause 14 of the said Agreement, the possession of the Apartment was to be handed over within 3 years from the date of execution of the Agreement. Therefore the possession was supposed to be handed over by 4.12.2015. However, the Opposite Party has failed to deliver possession within the stipulated time and even after 04 years from the promised date.
Aggrieved by the delay, the Complainant has filed this Complaint against the Opposite Party on the ground of deficiency in service and unfair trade practice, praying for refund of the money paid alongwith interest and compensation.
The Opposite Party has contested these complainants by filing its Reply. While admitting the fact that there is a delay in delivery of possession, the Opposite Party has stated in its Reply that these complaints are not maintainable due to lack of pecuniary jurisdiction as per the enactment of the Consumer Protection Act, 2019, and are liable to be dismissed. It has also been stated that the Complainant in both the complaints is not a ‘Çonsumer’ within the purview of the Act but is a dabbler in real estate who has made multiple bookings with a view to earn rental income and/or sell the Unit/Apartment at a profit. The Opposite Party has stated further in its reply that the Complainant and her husband-Ravindra Punde, vide four separate ‘Application for allotment of an Apartment’ all dated 13.3.2012 had applied for bookings of four units in the said Project and had opted a mixed payment plan. Four separate allotment letters dated 23.4.2012 were issued for the same. Four Agreements each dated 4.12.2012 were executed between the Parties. So, the units were booked solely for investment purposes. The Opposite Party has further stated in their reply that the delay in delivery of possession occurred due to reasons of Force Majeure and those are beyond the control of the Opposite Party. It is also denied that there is any deficiency in service on the part of the Opposite Party and the complaint deserves to be dismissed.
Rejoinder has been filed on behalf of the Complainant to the Reply filed by the Opposite Party stating therein that these complaints were filed on 22.6.2020 as per provisions of the Consumer Protection Act, 1986 and not as per the CP Act, 2019. Therefore, the complaint is well within the pecuniary jurisdiction of this Commission. Regarding the allegation of the Opposite Party that the Complainant is not a ‘Consumer’, it has been stated that the Apartment was booked for her and her family’s residential use and she is not a real estate dabbler, and sufficient evidence for the same has not been placed by the Opposite Party. It has also been stated in the Rejoinder that the Opposite Party has failed to produce any document in support of their statement that the delay in delivery of possession occurred due to Force Majeure and the reasons in their Reply are arbitrary, baseless and without any force.
Affidavit of Evidence has been filed on behalf of the Complainant as well as the Opposite Party.
Heard the Ld. Counsel for the parties and perused the material available on record.
It has been strongly urged on behalf of the Opposite Party that the Complaints are not bonafide and maintainable, since by the own averments and admission of the Complainant, the flats in question were actually purchased for commercial purposes. It has also been emphasized that apart from the two flats which are the subject matter of the present complaint, another two flats were similarly sought for by the Complainant’s husband Ravinder Punde, and the fact that as many as four separate apartments were sought to be purchased by just one married couple, would exfacie indicate that the investment could not have been only for residential purpose of the family.
Special emphasis has also been drawn in this regard to the claim made by the Complainant in which she has sought for damages @4% as loss of rental income in justifying her overall claim of compensation made at 18% of the deposited amounts.
In this regard, reliance has been placed upon an earlier decision of this Commission in “M/s. Moran Plantation Pvt. Ltd. Vs. M/s. Ambience Private Ltd. (earlier known as Ambience Infrastructure Pvt. Ltd.); CC No. 307 of 2012” wherein a similar complaint filed seeking refund of the deposited amount towards purchase of an apartment which was not delivered on time as in the present case, was held to be not maintainable by this Commission since the complainant therein explaining the extent of damages sought had similarly relied upon the loss of rental income which could not be earned due to non-delivery of the apartment in time. The relevant observation of the Commission in the aforesaid decision are set out as below:-
“Thus, collection of rent is earning profits. In the facts of the present case, we maintain the same view, and while dismissing the complaints, as not maintainable, reserve the rights of the complainants to approach the appropriate Civil Court to seek their remedy, if so advised. They may take advantage of the ruling of the Supreme Court in the case of “Laxmi Engineering Works V. PSG Industrial Institute, (1995) 3 SCC 583” to seek exclusion of the time spent in prosecuting these complaints before this Commission.”
From her side the Complainant has sought to explain that the sole purpose behind purchasing the flats in question was not the loss of rental income, but, that considering her personal profile, standing and status as an internationally renowned Senior Architect, like her husband, she needed extra accommodation for her visitors from outside. The details in this regard of which have been described in her rejoinder, are set out as below-
“5. ……….That the complainant is not a dabbler in real estate who deals in real estate properties to make profit. It is submitted that the complainant is a renowned architect. She is actively involved in promoting the landscape architecture profession in India and also promoting Indian landscape designs internationally. She was the President of the Indian Society of Landscape Architects. She is also a visiting faculty at the Department of Landscape Architecture in School of Planning & Architecture, New Delhi, India. She is a member of evaluation panel for TERI GRIHA- a non-profit agency evaluating green buildings, an Indian equivalent of USGBC. Savita is also on editorial board of Journal of Landscape Architecture, India. The complainant is the Co-Founder of an internationally recognized landscape architecture and planning firm which was established in 1987. In last 33 years, she has built an unmatchable reputation in the field of Design and documentation quality and timely delivery on all projects. In all these years, the complainant through her firm has successfully handled numerous high profile institutional projects of national and international importance such as Formula 1 Track Noida; Mumbai, Bengaluru International, Jaipur and Mangalore Airport to name a few and have earned lots of applause from all segments of the society and professionals for the excellent work done and making everyone, associated with it, proud.
It is submitted that the complainant has booked two apartments in the present project of the OP only and not in any other projects of OP or any other developers. The complainant booked the apartment for her and her family’s residential needs and to cater to large number of guests which the complainant because of her name and reputation in the industry. The complainant had no motives/ intentions of reselling her allotted unit to others allottees/buyers for gain or for making profits. The complainant is already an established and reputed architect and is not in the business of selling and reselling of the residential properties.”
(Emphasis added)
Reliance has also been placed on the decision of this Commission in “Kavit Ahuja Vs. Shipra Estate Ltd. & Jai Krishna Estate Developers Pvt. Ltd. ; CC No. 137 of 2010, decided on 12.2.2015”, in which it has been laid down that the onus of establishing that the Complainant was dealing in real estate i.e. in the purchase and sale of plots in his normal course of business to earn profits, shifts to the Opposite Party, which in the instant case the Opposite Party-Developer had failed to discharge by any documentary evidence in this regard. Consequently, the Complainant would certainly be ‘Consumer’ as defined under Section 2(1)(d) of the Act.
The Complainant has also relied on the decision of this Commission in “Aashish Oberai Vs. Emaar MGF Land Limited; CC No. 70 of 2015; decided on 14.9.2016”, in which it was held –
“In the case of the purchase of the houses which a builder undertakes to construct for the buyer, the purchase can be said to be for a commercial purpose where it is shown, by producing evidence, that the buyer is engaged in the business of a buying and selling of houses and or plots as a trading activity, with a view to make profits by sale of such houses or plots. A person cannot be said to have purchased a house for a commercial purpose only by proving that he owns or had purchased more than one houses or plots. In a given case, separate houses may be purchased by a person for the individual use of his family members. A person owning a house in a city A may also purchase a house in city B for the purpose of staying in that housing during short visits to that city. A person may buy two or three houses if the requirement of his family cannot be met in one house. Therefore, it would not be correct to say that in every case where a person owns more than one house, the acquisition of the house is for a commercial purpose.”
Similarly, in “M/s. Taneja Developers & Infrastructure Ltd. Vs. Col. B.S. Goraya , FA/253/2012”, this Commission observed that –
“15. From the above observations of this Commission in aforesaid cases the basic principle that emerges is that even if the consumer had booked more than one residential unit, but is not involved in trading of such properties, he will be deemed to be a consumer under the Consumer Protection Act, 1986. The opposite party/ appellant herein has not filed any proof that the complainant is involved in regular trading of such properties. Thus, we are unable to accept the contention of the learned counsel for the appellant that the respondent/ complainant is not a consumer.”
From its side, the Opposite party has not led any evidence to show that the Complainant has been engaged in the business of purchasing or selling out apartments, so as to establish that she would not be a ‘Consumer’ within the meaning of Section 2(1)(d) of the ‘Consumer Protection Act’. The mere fact that she had sought to purchase two apartments for herself does not ipso facto mean that the Units in question were purchased with an intention to sell off the same at a subsequent stage. There is no reason to disbelieve her statement that the two apartments had been sought only for her and her family residential needs, and to cater to the large number of guests who periodically visit her from within and outside the country on account of her name and reputation in the industry. The same reasoning would apply in case of her husband who had similarly sought to purchase two apartments for himself from the same Opposite Party. As has transpired, the Complainant’s husband also enjoys virtually the same level of professional standing and profile which would apparently have necessitated him to seek adequate residential space for family needs and entertaining the innumerable guests from the country and overseas on account of his professional standing. Of course, the final word qua the Complainant’s husband in this regard can be said only on the basis of the evidence in his support, if any, as and when those actually come up for consideration. But, at this juncture, we have no hesitation in holding that the present Complainant (wife) is certainly covered by the decisions of this Commission in “Kavit Ahuja” (supra) and “Aashish Oberai Vs. Emaar MGF Land Limited” (supra).
Further, the fact that the Complainant had sought for compensation @4% as “loss of rental income” on account of the inordinate delay in delivering possession of the apartments by the Opposite Party, cannot also be said to indicate that she necessarily is in the business of making any commercial gains, since it would be natural to accept that having invested such huge amount of money in purchasing the two apartments, the Complainant would surely take the opportunity to at least periodically let out the same for some time, for recovering some part of such huge investment being made by her.
For these reasons, we are of the opinion that the decision of this Commission in “M/s. Moran Plantation Pvt. Ltd.” (supra) is distinguishable in the case of the Complainant.
The initial deposit was made by the Complainant by way of booking amount way back in March, 2012. The allotment letter in her favour was issued on 23.4.2012 and the Builder Buyer Agreement between the parties was executed on 4.12.2012. It provided for delivery of the flats in 03 years from that date i.e. latest by 4.10.2015. But, the construction is still reported to be incomplete and by now the Complainant has waited for 07 years to get her Apartments.
In such circumstances, the present case would appear to be squarely covered by the decisions of the Hon’ble Supreme Court in C.A No.3182 of 2019 dated 25.03.2019 “Kolkata West International City Pvt. Ltd. Versus Devasis Rudra”, and in C.A. No. 12238 of 2018 dated 02.04.2019 “Pioneer Urban Land & Infra Ltd. versus Govindham Raghavan”, in which it has been observed that a Purchaser/allottee cannot be made to wait for an indefinite time.
In “Renu Singh Vs. Experion Developers Private Limited”, CC No. 1703 of 2018, decided on 26.10.2021 along with connected cases”, a full Five Member Bench of this Commission in answering another Reference, had concluded-
· (Emphasis added)
As such, following the principles laid down by the Hon’ble Supreme Court in “Kolkata West International City Pvt. Ltd. Versus Devasis Rudra”(supra) and “Pioneer Urban Land & Infra Ltd. versus Govindham Raghavan”(supra), the Complainant in these complaints is clearly found entitled for refund of the entire amount deposited by her with damages and compensation. The ends of Justice will be met if the Complainants in these complaints is awarded damages and compensation in the form of simple interest @9% p.a. on the deposited amount with effect from the respective date of each deposit till realization.
Consequently, the Opposite Party/ Developer is directed to refund to the Complainant the amount of Rs. 1,48,64,390/- (Rupees One Crore Forty Eight Lakhs Sixty Four Thousand Three Hundred Ninety) in CC No. 523 of 2020, and Rs. 1,81,27,559/- (Rupees One Crore Eighty One Lakhs Twenty Seven Thousand Five Hundred Fifty Nine) in CC No. 524 of 2020, alongwith interest @9% p.a., from the respective date of each deposit till payment, within two months from the date of passing of this Order. In the event of non-compliance of this Order, the amounts to be paid shall attract penal interest of 12%.
In addition, Rs. 25,000/- in each case is awarded as compensation cum litigation costs.