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Judgment
Dr.Inder Jit Singh, Member
The present Consumer Complaint (CC) has been filed by the Complainant against Opposite Party (OP) as detailed above, inter alia praying for directions to the OP to refund the amount of Rs.39,19,281/- with interest @ 18% per annum from the date of payment till the date of realization and also to pay Rs.2,00,000/- as litigation expenses.
Notice was issued to the OP. Parties filed Written Statement/Reply, Rejoinder, Evidence by way of an Affidavit and Written Arguments/Synopsis etc. as per details given in the Table at Annexure-A. The details of the flat allotted to the Complainant / other relevant details, based on pleadings of the parties and other records of the case are also given in the Table at Annexure-A.
Brief facts of the case, as emerged from the pleadings of the parties and other case records are that on 28.12.2012, Complainant applied for allotment of a flat admeasuring 2600 sq.ft. in the project of the OP, namely, The Leaf, situated in SS City, Sector-85, Gurgaon, Haryana and made payment of Rs.12,00,000/- being the booking amount. The Complainant was allotted Apartment No.3A on 3rd Floor of Tower B-4 in the said project. The total consideration amount of the apartment was Rs.1,54,64,000/-. From February 2013 to June 2016, the complainant made total payment of Rs.39,19,281/-.
It is averred/stated in the Complaint that a Builder Buyer Agreement ( BBA) dated 26.09.2013 was executed between the Complainant and the OP and as per clause 8.1 of the Agreement, time for handing over the delivery of possession of the flat was 36 months from the date of agreement. It is further stated in the Complaint that OP failed to deliver the apartment to the Complainant within 36 months from the date of agreement and also that project of the OP is far from completion. Further, the OP has stopped the construction of the project completely in September 2015 after collecting more than 50% of the total sale consideration. It is further stated that Complainant visited the OP many time and requested to complete the construction of the project and hand over the possession but respondent failed to give any response and that respondent is not carrying out any construction in the project site and is using the money collected from the customers for its own personal benefits. Being aggrieved, the Complainant has filed the present Complaint.
The OP in their written statement/reply did not dispute the booking of flat, allotment of flat and execution of Flat Buyer’s Agreement. OP stated that present Complaint is not maintainable in National Commission since the complainant has sought refund of Rs.39,19,281/- . It is contended by the OP that complainant is not a consumer as Complainant is a real estate broker and a partner in its firm namely ‘Philby Real Estate’, which fact has been concealed by the Complainant. The Complainant has booked a unit in his individual name and further adjusted the brokerage in his individual name by way of three credit notes in order to avoid cancellation of unit allotted to him. Further, the complainant has signed the Advance Registration Form dated 28.12.012 for advance booking of the flat on behalf of the firm. It is further contended that Complainant failed to make the payment in time or in accordance with the terms of agreement and now wants to shift the burden of deficiency on their part. It is stated that construction of project is at full pace and is expected to be completed in few months.
OP further contended that builder constructs a project phase wise for which it gets payment from the prospective buyers and the money received from the prospective buyers are further invested towards the completion of the project and irregular and insufficient payment by the prospective buyers freezes the hands of the developer in proceedings towards timely completion of the project.
Heard counsels of both sides. Contentions/pleas of the parties, on various issues raised in the Complaint, based on their Complaint/Reply, Rejoinder, Evidence, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.
7.1. Counsel for the Complainant argued that opposite party has failed to fulfil its obligation under the agreement and failed to raise the construction as per promise despite the fact that amount of Rs.39,19,821/- has been paid by the Complainant. The construction of the project was nowhere near completion and, therefore, complainant is not interested in buying the apartment. It is further argued by the complainant that National Commission has pecuniary jurisdiction to try and entertain the present complaint. Reliance is placed by the counsel for the complainant in the matter of Ambrish Kumar Shukla and Ors. Vs. Ferros Infrastructure Pvt. Ltd. CC No. 97 of 2016. Counsel argued that this is a covered case covered by the orders of this Commission in Shri Kant Kukreti Vs. M/s S.S.Group Pvt. Ltd. and Anr. CC No. 160 of 2018 and Vijay Kumar and Anr. Vs. M/s S.S.Group Pvt. Ltd. & Ors. CC No. 706 of 2015.
7.2. On the other hand, counsel for the OP argued that demands were raised in accordance with the payment plan opted by the complainant and that by 06.06.2013, total amount of Rs.22,73,431/- has been paid by the complainant. No further payment was made by the complainant towards the sale consideration of the said unit. It is further argued that on 26.09.2013 the complainant took the Flat Buyer’s Agreement for signatures but till date the copy of the Agreement meant for the OP has not been returned by the complainant, meaning thereby that said unit was booked by the complainant for commercial purpose.
7.3. It is further argued by the OP that complainant is not a consumer and has signed the advance registration form dated 28.12.2012 for advance booking of the flat on behalf of a Real Estate firm ‘Philby Real Estate’as its authorized signatory and not in his individual capacity. As per clause 8 of the agreement, the period for granting possession was subject to the complainant complying with all the terms and conditions of the Agreement which Complainant failed to do so. It is further argued by the OP that Complainant is a defaulter and he has placed reliance on the judgments of Hon’ble Supreme Court and this Commission in DLF Southern Towns Pvt. Ltd. Vs. Dipu C. Seminlal 2015 SCC Online NCDRC 1, Sahara India Commercial Corpn. Ltd. Vs. P. Gajendra Charry III ( 2010)CPJ 190 NC and Prashant Kumar Shahi Vs. Ghaziabad Development Authority ( 2000 ) 4 SCC 120.
The contention of OP that this Commission lacks pecuniary jurisdiction is not valid. Under Section 21 of the Act, Commission has the jurisdiction where value of goods and services and compensation, if any, claimed exceeds Rs. One Crore.
Regarding contention of OP that Complainant is a defaulter, OP has not been able to clearly bring out as to which demands of instalments were not paid and whether the construction stage / conditions linked to such demands were met at the time of such demand. If time payment of instalments is the essence of contract, timely delivery of possession has to be the essence. The contention of the OP that the parties are bound by the agreement is also not acceptable. In Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghvan (2019) 5 SCC 725, Hon’ble Supreme Court also observed that “a term 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 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.”
The contention that complainant is not a consumer as he has purchased the unit for commercial purposes is also rejected as no such evidence has been adduced by the OP in this regard. It has been observed by this Commission in various cases (Kavita Ahuja Vs Shipra Estates Ltd, CC 137 of 2010, decided on 12.02.2015, Santosh Johri Vs M/s Unitech Ltd, CC 429 of 2014 and connected Cases, decided on 08.06.2015, Aloke Anand Vs M/s Ireo Grace Pvt Ltd & Others, CC no 1277 of 2017 decided on 01.11.2021) that purchase of a house can only be for a commercial purpose if the purchaser is engaged in the business of purchasing and selling houses or plots on a regular basis, solely with a view to make profit by way of sale of such houses, if the house is purchased purely as an investment and the purchaser is not undertaking the trading of houses on regular basis, then it would be difficult to say that he had purchased it for commercial purpose.
Even after a gap of more than 6 years from the committed date, possession of the unit has not been handed over. Construction of the project is still not complete, occupancy certificate has not been obtained, not even applied yet. OP is still not in a position to give any firm commitment with respect to completion of project and / or handing over of the possession.
In the instant case, there is an inordinate delay in handing over the possession of flat by the OP. The complainant cannot be made to wait for an indefinite time and suffer financially. Hence, the complainant in the present circumstances have a legitimate right to claim refund alongwith fair delay compensation/interest from the OP. In CC No. 349 of 2018 and Connected CCs decided by this Commission on 01.02.2023, which pertained to the same project of the same OP viz. ‘The Leaf’, and involved similar circumstances, this Commission had ordered refund. Similarly, in CC No. 700 of 2017 decided by this Commission on 30.01.2023 and CC No. 160 of 2018 decided by this Commission on 06.11.2019 pertaining to same project of the same OP, refund was ordered.
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 OP shall refund the entire principal amount of Rs.39,19,281/- (Rupees Thirty Nine Lacs Nineteen Thousand Two Hundred and Eighty One only) to the complainant, alongwith compensation in the form of simple interest @ 9% per annum from the date of each payment till the date of refund. The principal amount refundable mentioned in this para is subject to verification of actual amount paid by the complainant based on receipts etc.
(ii) The OP shall pay a sum of 25,000/- as cost of litigation to the complainant.
(iii) The payment in terms of this order shall be paid within three months from today.
(iv) In case the complainant has taken loan from Bank(s)/other financial institution(s) and the same/any portion of the same is still outstanding, the refund amount will be first utilized for repaying the outstanding amount of such loans and balance will be retained by the complainant. The complainant would submit the requisite documents from the concerned bank(s)/financial institution(s) to the OP four weeks from receipt of this order to enable them to issue refund cheques/drafts accordingly.
The pending IAs in the case, if any, also stand disposed off.