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Judgment
Dr. Inder Jit Singh, Member
The present Consumer Complaint (CC) under Section 21(a)(i) has been filed by the Complainants against the OPs for failure to hand over the possession of the apartment No.B-2/16A, Manor One, Sector 111, Gurugram Haryana, as per terms & conditions envisaged under Apartment buyers agreement (ABA) dated 30.04.2013. It is inter-alia prayed in the complaint to direct the OPs to:-
i. Handover the possession of the Flat to Complainant in completed and finished state.
ii. Pay a sum of Rs.43,61,904/- being the interest @ 24% per annum on Rs.91,40,238/- w.e.f. 30.04.2016 till date of institution of complaint and also to pay a further penalty @ 24% per annum compounded quarterly on the said amount from date of institution of this complaint till actual physical delivery of flat.
iii. Alternatively if possession is not delivered, refund the total amount paid with interest compounded quarterly @ 24% from the date of payment till complete payment.
iv. Direct all sums adjudged due on the respondent shall be realized from it with interest@ 24% p.a. from date of such determination till the realization.
It is averred/stated in the Complaint that: -
i. Complainant bought the said flat from OP, the possession of which was to be delivered by 30.10.2016 including the grace period. The OP after taking a huge sum of money from the Complainant has failed to deliver the possession of the same.
ii. The OP has failed to deliver the possession and also not updated the Complainant regarding the construction status of it as on date, thus Complainant sent a legal notice dated 03.11.2017 to OP for knowing the status, OP ignored the legal notice and did not reply to it. The Complainant further issued reminder notice to OP on 03.12.2017, which was further ignored by OP and no reply has been given by them. The cause of action arose to the Complainant against the OP, on 30.04.2016, when respondent failed to hand over the possession of the relevant flat to him, then on every day of the six month period of grace ending on 30.10.2016 and remains alive till date of filing of complaint.
iii. Complainant further states that if the time of payment was the essence of the contract for complainant, then time of delivery of the finished property was essence of contract for the OP.
iv. It is further averred that OP has charged 24% p.a. interest on delayed payment by the Complainant in FBA. Thus, the Complainant should also get the same interest on delayed possession of the flat.
v. It is alleged in the complaint that the act and omission of the OP falls under the definition of unfair trade practices and restrictive trade practices within the ambit of Consumer Protection Act 1986 for which buyers should be adequately compensated.
The OPs in their written statement/reply while denying each and every averments, allegations made by the complainant, have stated that:-
i. OP after getting License from DTCP, bearing No.110 of 2011, for land admeasuring 14.843 acres in Gurgaon, Haryana and other permissions started the construction work for the said project.
ii. The Complainant in order to harass and ruin reputation of Respondent No.1, have malafidely made him the party in the present case, although no allegations have been raised against him in the complaint and hence it is a mis-joinder.
iii. The delay in granting possession was due to the force majeure circumstances and were beyond the control of the OP such as demonetization, default of payment by the buyers etc.
iv. OP has availed credit facility from Dewan Housing Finance Limited for constructing the said project, due to the gross default of payment on part of buyers and is trying at its level best for completing construction.
v. It is further averred that the OP-2 will complete the construction of phase-1 within thirty six months from 30.08.2017 and shall give alternate flats to the Complainant as well as other buyers in phase-1 of the project.OP-2 has also given undertaking in RERA for the same vide letter dated 30.08.2017 to avoid imposition of any penalty.
vi. OP has not done any deficiency in services and all allegations of Complainant are baseless and are made only with the malafide intention.
vii. The project was divided into 2 units- Phase -1 and Phase-2 and the total number of flats in the entire project is 732, but only 273 have been booked. Out of 273, number of defaulters is 115. The reason for delay was due to default in payment by buyers.
Complainants in their rejoinder while denying the allegations of Opposite party and reiterating the contentions of the complaint stated:-
i. Demonetization was declared on 08.11.2016, however the said project was said to be delivered on or before 30.10.2016(including the grace period), thus there is in no way demonetization has affected the delay in granting possession.
ii. OP-1 is responsible for carrying out the functions and affairs and to look into what happens under his stewardship, thus he is necessary to be made a party in the present case.
Evidence by way of an Affidavit was filed by the complainants and OP broadly on the lines of averments made in their respective complaint/reply. The details of the flats allotted to the Complainants/other relevant details of the case are given in the Table below.:-
Sr
No
Particulars
1
Apartment no
B2-16A, 16th floor, Sector 111, Gurugram
2
Super Area
1715 sq. ft.
3
Date of application
03.06.2011
4
Date of allotment
22.07.2011
5
Date of signing ABA
30.04.2013
6
Committed date of possession as per ABA
(with Grace period, if any)
30.10.2016
7
Total Consideration
Rs.1,16,21,370/-
8
Amount Paid
Rs.91,40,238-
9
D/o Filing CC in NCDRC
17.04.2018
10
D/o Issue of Notice to OP
21.02.2018
11
D/o Filing Reply/Written Statement by OP
24.07.2018
12
D/o filing Rejoinder by the Complainant
11.08.2020
13
D/o Filing Evidence by way of Affidavit by the
Complainant
13.11.2018
14
D/o Filing denial by way of Affidavit by the
Complainant
25.10.2018
15
D/o Filing Evidence by way of Affidavit by the
OP
20.12.2018
16
D/o Filing denial by way of Affidavit by the OP
09.10.2018
17
D/o filing Written Synopsis by the Complainant
Not filed
18
D/o filing Written Synopsis by the OP
Not filed
Heard counsels of both sides.
The plea of OP that delay was due to force majeure circumstances is not valid as even after a gap of more than 5 years from the committed date given in the ABA, possession of flat has not been given. There is no documentary evidence to support the contention of the Opposite Parties that the reasons pleaded by them, can be construed as ‘Force Majeure. The contention of the OP that the parties are bound by the agreement is also not acceptable. Hon’ble Supreme Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raglivan II (2019) CPJ 34 (SC) decided on 02.04.2019 held that “a term of a contract will not be final and binding if it is shown that the flat purchasers had no option to sign on the dotted line, on a contract framed by the builder ......... the incorporation of one sided clause in an agreement constitute 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 flats by the builder ........., the appellant-builder cannot seek to bind the respondent with such one sided contractual terms.”
In the instant case, there is an inordinate delay in handing over the possession of flat by the OP. The complainants cannot be made to wait for an indefinite time and suffer financially. Hence, the complainant in the present circumstances has a legitimate right to have timely possession of this flat.
For the reasons stated hereinabove, and after giving a thoughtful consideration to the entire facts and circumstances of the case, various pleas raised by the learned Counsel for the Parties, the Consumer Complaint is allowed/disposed off with the following directions/reliefs: -
i. The OPs shall complete the construction and hand over the possession of the flat in question, complete in all respects, as per the specifications, alongwith facilities/amenities promised in the brochure and/or Agreement, within six months from the date of this order alongwith delay compensation in the form of simple interest @6% per annum from the date of each deposit till the date of actual physical possession of the flat.
ii. In case OPs fails to deliver the possession within six months as per para (i) above, complainant shall have the right to seek refund of their entire amount paid alongwith simple interest @9% per annum from the date of each deposit till the date of actual payment, which shall be paid within three months from the date of written request for such refund.
iii. The OPs shall pay a sum of Rs.50,000/- as cost of litigation to the complainants.
iv. The liability of OPs shall be joint as well as several.
The pending IAs, if any, also stand disposed off.