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Judgment
These Applications, under Section 60 of the Consumer Protection Act, 2019 (for short, the "Act"), have been filed by the Opposite Parties praying for review of the common Order, dated 21.09.2021, passed by this Commission wherein the Consumer Complaint Nos. 379 of 2013, 411 of 2019 and 791 of 2019, were partly allowed directing the Opposite Parties to refund the amount deposited by the Complainants along with interest @ 9% p.a. from the respective dates of deposit till the date of actual refund. It was observed as under:-
" Having given our thoughtful consideration to the various pleas raised by the learned Counsel for the Parties, we find that the Construction of the two Villas which were to be constructed by the Opposite Parties on Plot Nos. 129 and 130 have not yet been fully completed. The Complainants have paid a total sum of 3,33,60,000/- (Rupees Three Crores Thirty Three Lakhs Sixty Thousand) as per the statement of Ledger Account filed by the Complainants (Annexure C-3).The fact regarding non-completion of Villa also stand admitted by the Opposite Parties but reasons which have been given for not completing the construction are not satisfactory and cannot be a ground for non-completion of construction for such a long period.
Keeping in view the Judgment passed by this Commission in Emmar MGF Land Ltd. & Ors. vs. Amit Puri [II (2015) CPJ 568 NC], wherein it was laid down that after the promised date of delivery, it is the discretion of the Complainant whether he wants to accept the offer of possession, if any, or seek refund of the amounts paid with reasonable interest, it is held that it is well within the Complainant's right to seek for refund of the principal amount with interest and compensation as construction is still not complete. We are of the view that the Complainant cannot be made to wait indefinitely for the delivery of possession and the act of the Opposite Party in relying on force majure clause while retaining the amounts deposited by the Complainant, is not only an act of deficiency of service but also amounts to unfair trade practice.
We find it a fit case to place reliance on the recent Judgment of the Hon'ble Apex Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, II (2019) CPJ 34 (SC), wherein the Apex Court has observed as follows:
"6.7. A terms of a contract will not be final and binding if it is shown that the flat purchasers had no option but to sign on the dotted line, on a contract framed by the builder. The contractual terms of the Agreement dated 08.05.2012 are ex-facie one sided, unfair and unreasonable. The incorporation of such one-sided clauses in an agreement constitutes an unfair trade practice as per Section 2(r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling the flats by the Builder.
In view of the above discussion, we have no hesitation in holding that the terms of the Apartment Buyer's Agreement dated 08.05.2012 were wholly one-sided and unfair to the Respondent-Flat Purchaser. The Appellant-Builder cannot seek to bind the Respondent with such one-sided contractual terms."
We also find it a fit case to place reliance on the judgment of the Hon'ble Supreme Court in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, II (2019) CPJ 29 SC, in which the Hon'ble Apex Court has observed as hereunder :-
".....It would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession. By 2016, nearly seven years had elapsed from the date of the agreement. Even according to the developer, the completion certificate was received on 29 March 2016. This was nearly seven years after the extended date for the handing over of possession prescribed by the agreement. A buyer can be expected to wait for possession for a reasonable period. A period of seven years in beyond what is reasonable. Hence, it would have been manifestly unfair to non-suit the buyer merely on the basis of the first prayer in the reliefs sought before the SCDRC. There was in any event a prayer for refund.
In the circumstances, we are of the view that the orders passed by the SCDRC and by the NCDRC for refund of moneys were justified."
In the instant cases also the Complainants cannot be made to wait indefinitely for possession of the Villa, as the construction is yet to be completed. Therefore, we are of the considered view that the Complainants are entitled for refund of the principal amount with reasonable interest, which we quantify @9% p.a. from the date of respective date of deposit till the date of actual refund."
The main grounds on which review of the Order dated 21.09.21 is sought, are as under:-
(i) The Complainants are defaulter in making the balance installments as per the terms of agreement;
(ii) The delay in completing the construction work and handing over the possession was due to non-payment by the Complainants;
(iii) The construction work has been completed upto 80% and there is all possibility to hand over the possession in the near future;
(iv) Complainants have not mentioned about the return of the Property to the Opposite Parties;
(v) There is no deficiency in service on their part and they have complied with each and every clause of the Agreement;
Having perused the Order, dated 21.09.2021 and the grounds urged in the Applications in support of the review of the said order, we are of the considered view that the Applications are bereft of any merit since all these grounds were duly considered at the time of passing of Order sought to be reviewed. An order can be reviewed if there is a mistake apparent on the face of the record. We do not find any such mistake apparent on record. Consequently, the Review Applications are dismissed.
This Order shall be communicated by the Registry to the Review Petitioner/Opposite Parties.