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Judgment
Subhash Chandra, Presiding Member
The present complaint has been filed under section 12 of the Consumer Protection Act, 1986 (in short, the ‘Act’) alleging deficiency in service and unfair trade practice in respect of the flat booked by the complainant in project Assotech Blith, Sector-99, Gurgaon promoted and developed by the opposite party.
The Complainant had booked flat no. G-902, Assotech Blith, Sector-99, Gurgaon having super area of 1685 sq.ft. On the basis of Basic Sale Price (BSP) @ Rs.1680 per sq. ft on 01.05.2012, the total sale consideration was Rs. 92,54,675/-. An allotment letter-cum-agreement (in short ‘Agreement’) was issued on 30.06.2012. As per clause 57 of the Agreement, possession was to be delivered within 42 months from the date of allotment of the flat i.e. on 30.06.2012. However, possession was not offered till 11.01.2017 by when complaint had paid Rs.84,81,230/- to the opposite party in installments, against the total sale consideration. The complainant visited the site and found that the project was far from completion. As there had been more than 7 years of delay in completing the project and handing over possession to the complainant, he sent a legal notice on 02.10.2019 to the opposite party to refund the amount paid by complainant to which opposite party neither replied nor refunded the amount. The complainant has averred that the delay in offering possession has been inordinate and not offering possession within the stipulated time amounts to deficiency in service. Hence, the instant complaint has been filed before this Commission for refund of the amount paid by the complainant to the opposite party with interest. The prayer of complainant is to:
i. Allow the present complaint in favour of complainant and against the opposite party.
ii. Direct the opposite party refund the entire amount of Rs.84,87,230/- paid to the opposite party with an interest of 18% from the date of receipt till realization to the complainant.
iii. Direct the opposite party to pay damages of Rs. 20,00,000/- to the complainant for indulging in to unfair trade practice by the opposite party.
iv. Direct the opposite party to pay damages of Rs. 20,00,008/- to the complainant for indulging in to unfair trade practice by the opposite party.
v. Direct the opposite party to pay Rs.1,00,000/ towards cost of legal and miscellaneous expenses.
vi. Pass such order or orders as are deemed fit and proper in the facts and circumstances of the present case and in the interest of justice.
The opposite party has resisted the complaint by way of reply and affidavit and contended that the delay in completing the project was due to force majeure conditions beyond the control of the opposite party due to the appointment of an official liquidator for M/s Assotech Limited, due to which construction was considerably delayed. Therefore, it is contended that the instant complaint is highly misconceived, vague, vexatious, baseless and a gross abuse of process of law and liable to be dismissed. Opposite party further contended that due to various directions from the authorities on different occasions, regarding water shortage, and pollution control etc., labourers and contractors abandoned the work which affected the progress of the project. The only contractor i.e., M/s Assotech Limited went into provisional liquidation on 08.02.2016 by the order of Delhi High Court, and thereafter, the Board of Directors who were deferring all the construction activity on site became ex- management and all their powers were taken over by the official liquidator. Due to force majeure and the Corona virus pandemic, from 23.03.2020 to 30.09.2020, construction work was stopped. The Opposite party is stated to be in the process of applying for Occupation Certificate (OC) and Completion Certificate (CC). According to the opposite party, the complaint is not maintainable because there is no deficiency in service on part opposite party. It is also averted that this Hon’ble Commission lacks pecuniary jurisdiction as the total consideration of flat was Rs.92,54,675/- and complainant had paid only Rs.84,87,230/- since he failed to pay the last installment to the opposite party which was due by 20.02.2021.
The complainant stated that the delay on account of court orders does not apply and has relied upon the judgment of this Commission Harish Jain & Anr. v/s Ramprastha Promoters and Developers Pvt. Ltd. & Anr., in CC No. 2089 of 2016 wherein it was held that:
I have gone through the order of the Hon’ble High Court of Punjab & Haryana. Vide this order, the High Court had not put the complete ban on the construction of the project but it had only put the restriction on the use of the underground water. Nothing has stopped the Opposite Parties from procuring the water by some other methods to complete the construction. This argument of the learned Counsel has no merit and the delay in completion of the project cannot be contributed to the order of the High Court of Punjab & Haryana and it is not a reason of delay which was beyond the control of the Opposite Party.
It is also submitted that the application of the complainant before the NCLT cannot act as estoppel/ impediment to the present complaint under the Act. Reliance has been placed on the judgement of the Hon’ble Supreme Court in Pioneer Urban Land and Infrastructure Ltd., vs Govindan Raghavan and other connected matters CA no. 3182 of 2019 dated 02.04.2019, wherein it has been held that remedies given to allottee(s) of flats are concurrent and they are in a position to avail remedies under the CP Act, RERA as under the IBC.
The opposite party has relied upon the judgment of this Commission in Naina Semiconductors Ltd. V/s Assotech Moonshine Urban Developers Pvt. Ltd. in Consumer Complaint No. 1776 of 2018 wherein this Hon’ble Commission has held that in case of refund, the amount paid would decide the pecuniary jurisdiction. It is submitted that the complainant has sought other untenable reliefs merely to inflate his claim. Opposite party also relied upon this Commission’s orders in Ramesh Kumar v/s Goyal Eye Institute (2012) CP 5676 (NC) where a strict view had been taken against the tendency of complainants to inflate their claims in order to bring their complaint within the pecuniary jurisdiction of this Hon’ble Commission.
Parties led their evidence and filed written submissions. We have heard the learned counsel for the parties and perused the records carefully.
The argument of the complainant is that there is delay of more than 7 years in the offer of possession of the flat in question to the complainant by the opposite party. Therefore, there is deficiency in service on the part of opposite party. Opposite party has also failed to explain why he failed to hire a new contractor for almost 4 years (from the date of Hon’ble High Court’s order dated 08.02.2016 till 24.10.2020 i.e. the date of resumption of construction). It is argued that the opposite party cannot make the complainant to wait for an indefinite period for possession of the flat.
The opposite party has argued that the delay occurred due to the reasons that were beyond its control and that the Builder Buyer Agreement has the flexibility to allow such delays and therefore, this does not amount deficiency in service on the part of the opposite party. It is submitted by the opposite party that due to various directions, from the authorities on different occasions regarding water shortage, and pollution control etc., labourers and contractors abandoned the work, which affected the progress of the project. The only contractor i.e., M/s Assotech Limited went into provisional liquidation on 08.02.2016 as per the order of Delhi High Court. Thereafter, the Board of Directors became ex-management and all their powers were taken over by the official liquidator. Due to application of force majeure condition because of the Corona pandemic from 23.03.2020 to 30.09.2020, construction work was stopped. It is also submitted by the opposite party that as per clause 57 of the allotment letter, no delay charges shall be payable within the grace period.
On the preliminary objection of the opposite party on pecuniary jurisdiction, the argument of the opposite party that this Commission has no pecuniary jurisdiction cannot sustain in view of the judgment passed in Ambrish Kumar Shukla vs Ferrous Infrastructure Pvt. Ltd., - 2016 SCC Online NCDRC 1117, wherein it was held that:
“The consideration paid or agreed to be paid by the consumer at the time of purchasing the goods or hiring or availing of the services, as the case may be, is to be considered, along with the compensation, if any, claimed in the complaint, to determine the pecuniary jurisdiction of a consumer forum”.
This position was also reiterated by a five Member Bench of this Commission in the case of Renu Singh vs Experion Developers Pvt. Ltd. in CC no. 1703 of 2018, decided on 26.10.2021. Admittedly, possession of the flat has been delayed by the opposite party beyond 31.12.2015 till date. The opposite party cannot make complainant wait for an indefinite period. There is already a delay of more than 7 years till the present and the complainant is justified in seeking compensation for the same. The opposite party cannot expect the complainant to wait indefinitely for the possession to be offered. The Hon’ble Supreme Court in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra – II (2019) CPJ 29 SC has laid down that:
“…it would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession…A buyer can be expected to wait for a reasonable period. A period of seven years is beyond what is reasonable”.
The reliance of the opposite party on force majeure events to justify delay in completing the construction of the project has also been considered. In the case of Manoj Kawatra and Others Vs Pioneer Urban Land and Infrastructure Ltd., in CC no.1442 of 2018 decided on 01.11.2021, a developer cannot take shelter under the force majeure clause unless it is able to show that the event was unforeseen and unexpected.
The opposite party has contended that construction was delayed due to various directions from the authorities on different occasions regarding water shortage, and pollution control etc. labourers and contractors abandoned the work, which affected the progress of the project. This Commission in Harish Jain (Supra) has considered such grounds and held them to be without merit. The opposite party has not shown whether it make specific efforts to overcome these issues and cannot seek shelter under a generalised argument.
In Fortune Infrastructure Vs Trevor D’Lima (2018) 5 SCC 442 the Hon’ble Supreme Court had held that:
‘a buyer cannot be expected to wait indefinitely for possession and in a case of an unreasonable delay in offering possession, the consumer cannot be compelled to accept possession at a belated stage and is entitled to seek refund of the amount paid with compensation’.
Similarly, in Pioneer Urban Land and Infrastructure Ltd., vs Govindan Raghavan and other connected matters CA no. 3182 of 2019 dated 02.04.2019, the Hon’ble Supreme Court categorically held that:
“the flat purchasers cannot be made to wait for inordinate period of time hoping to seek possession and that refund of amounts deposited is a valid redressal”.
We are also guided by the law laid down by the Hon’ble Supreme Court in Fortune Infrastructure an Govindan Raghavan (supra) that in a case of an unreasonable delay in offering possession, a buyer cannot be compelled to accept possession at a belated stage and is entitled to seek refund of the amount paid with compensation. As the project is admittedly not complete, the complainant’s exercising of his option to seek a refund cannot be construed to be unjustified. The prayer of the complainant for refund with compensation in the form of interest is therefore justified.
The contentions of the complainant seeking refund with compensation in the form of interest and cost of litigation are therefore valid and liable to succeed. The opposite party has held the deposited money for over 7 years with the promise of offering a residential flat without any progress even after over 7 years. The complainant’s prayer for the refund of his money with interest as compensation is entirely valid since he cannot be expected to wait indefinitely, especially since the project does not appear to have a completion or occupation certificate even as on date.
I, therefore, find merit in the complaint and allow the same with the following directions:
(i) opposite party shall refund the entire amount deposited by the complainant with interest @ 9% on the deposited amount from the respective dates of deposit till the date of realization;
(ii) this order shall be complied within two months failing which penal interest of 12% shall be paid; and
(iii) opposite party shall pay litigation costs of Rs 50,000/- to the complainant.
The consumer complaint stands disposed of with these directions. All pending IA’s are also disposed of by this order.