AI Structured Summary
Not yet generated for this judgment
Judgment
Dr.Inder Jit Singh, Member
The present Consumer Complaint (CC) has been filed by the Complainant against the opposite parties as detailed above, inter aila praying for:-
(i) refund of Rs.79,22,054/- paid by the complainant to the opposite parties alongwith interest @18% p.a. and to pay Rs.23,17,142/- deposited by the complainant with the bank as interest on the loan taken by the complainant (total Rs.1,02,39,196/-), with interest @18%.
(ii) Rs.10,00,000/- as compensation on account of mental agony and harassment.
(iii) to pay litigation expenses.
Notice was issued to the opposite parties on 29.10.2018 giving them 45 days’ time to file their written statement.
It is averred/stated in the complaint that:-
i) That the complainant booked a flat on 03.09.2011 in the residential Project launched by the OPs in the name of “Ramprastha SKYZ Tower Scheme” Unit No.1-1801, Sector 37-D, Village-Dadauli Kalan, District-Gurgaon, Haryana, having Super Area 2025 sq. ft. The parties entered into Apartment Buyer’s Agreement on 20.10.2011. The total consideration for the flat was Rs.88,92,282/-, out of which, the complainant paid Rs.79,22,054/- The OPs were liable to handover the possession of the unit till 31.08.2014 with grace period of 120 days.
ii) The complainant took loan from HDFC Bank in the sum of Rs.70,32,826/- @ interest 10.30 p.a. The complainant paid amount of Rs.23,17,142/- as interest from 01.04.2014 to 31.03.2018 and the complainant is regularly paying the EMI of Rs.72,012/- per month. The complainant visited the site and found that the site will take more than two-three years.
iii) As the OP failed to deliver the possession, the complainant approached the OPs for refund of the amount paid by the complainant alongwith interest but the OPs avoided to pay the amount on one pretext or the other. The complainant issued legal notice to the OPs on 09.07.2018, but no refund was made by the OPs. Hence, the complainant filed complaint before this Commission.
OPs in their written statement/reply stated that :-
i. The complaint is liable to be dismissed on the ground that the complaint is bad for non-joinder of necessary parties. The agreement with OP-1 is executed by the complainant as also Mrs. Archana Singhvi, however the complaint has been filed only by the complainant Sh. Suresh Kumar Singhvi. The complainant has wrongly and illegally impleaded the OP-2 & 3. The OP-2 & 3 perform the liability of OP-1, hence are liable to be deleted from the memo of parties.
ii. As per clause 17 (a) of the ABA, the parties agreed to a specific condition that there could be further delay after 31.12.2014, for which OP to pay delay compensation @Rs.5/- per sq. feet of the super area per month till the date of possession subject to fulfilment of all terms and conditions by the allottee as per the agreement.
iii. The complainant is not a ‘consumer’ as per the statutory scheme. The allotment of an Apartment (in immovable property) is not covered under the Consumer Protection Act. The complainant has not hired any services from the OPs.
iv. This Commission is deprived of the jurisdiction to go into the interpretation of, or rights of the parties inter-se in accordance with the Apartment Buyer’s Agreement signed by the complainant/allotment offered to him, which jurisdiction would be exclusive to a Civil Court under the Specific Relief Act, 1963.
v. The reliefs claimed, fall outside the scope of Section 14 of the Consumer Act and are, thus beyond the jurisdiction of the Commission to grant the same.
vi. The complainant booked the said apartment solely for the purpose of investment and as a profit making activity. The delay was due to Force Majeure circumstances, which were beyond the control of OP-1, which hindered the progress of project.
vii. As per clause 15(b)(i) of the Agreement, mandate an automatic extension of time in the date of possession in certain circumstances.
viii. The contents of prayer clause of the complaint are wrong and denied. The complaint is false and frivolous and is liable to be dismissed.
Evidence by way of affidavit was filed by the complainant on 19.02.2019 and affidavit of evidence was filed by the OPs on 22.04.2019 broadly on the lines of averments made in the complaint. Responding to contention of the OPs regarding non-joinder of necessary parties, complainant in his rejoinder stated that he has clearly mentioned in his petition that the flat was purchased in the joint name of complainant and his wife.
Heard counsels of both sides. The details of the flat allotted to the Complainant/other relevant details of the case are given in the Table below:-
Sr No
Particulars
1
Project Name/Location etc
“Ramprastha SKYZ Tower Scheme, Sector 37-D, Village-Dadauli Kalan, District-Gurgaon
2
Apartment no.
Unit No.1-1801
3
Size (Built up/Covered/Super Area)
2025 sq. ft.
4
Date of application
03.09.2011
5
Date of signing Buyers’ Agreement
20.10.2011
6
Committed date of possession as per Buyers’ Agreement (with
Grace period, if any)
31.12.2014
7
Total Consideration
Rs.88,92,282/-
8
Amount Paid to the OP
Rs.79,22,054/-
9
D/o Filing CC in NCDRC
23.10.2018
10
D/o Issue of Notice to OP
29.10.2018
11
D/o Filing Reply/Written Statement by OPs
20.12.2018
12
D/o filing Rejoinder by the Complainant
19.02.2019
13
D/o Filing Evidence by way of Affidavit by the Complainant
19.02.2019
14
D/o Filing Evidence by way of Affidavit by the OPs
22.04.2019
15
Admission/Denial of the documents by the Complainant
13.05.2019
16
Admission/Denial of the documents by the OPs
20.04.2019
17
D/o filing Written Synopsis by the Complainant
24.01.2020
18
D/o filing Written Synopsis by the OPs
03.01.2022
Heard counsel of both the sides.
The contention of OPs 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. The objection that the no cause of action has ever accrued in favour of the complainant to file the compliant before this Commission, is also not accepted. The OPs have failed to deliver the possession of the unit to the complainant till date and therefore, the cause of action is continuing. The contention that complainant is not a consumer as he has purchased the unit for commercial purpose is also rejected as no such evidence has been adduced by the OPs in this regard. The plea of OPs that delay was due to force majeure circumstances is not valid as even after a gap of more than seven years from the committed date given in the Buyers’Agreement, 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 OPs 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 OPs. 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 OPs The plea of OPs for entitlement of compensation to the complainant in accordance with provisions Buyers’ Agreement is not valid.
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 refund the entire principal amount of Rs. 79,22,054/- (Rupees seventy nine lakh twenty two thousand fifty four only) paid by the complainant, alongwith compensation in the form of simple interest @ 8% 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(s) shall pay a sum of Rs,25,000/- as cost of litigation to the complainant.
(iii) The liability of the OPs shall be joint as well as several.
(iv) The payment in terms of this order shall be paid within three months from today.
(v) In case the complainant(s) 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(s) would submit the requisite documents from the concerned bank(s)/financial institution(s) to the OP(s) within four weeks from receipt of this order to enable them to issue refund cheques/drafts accordingly.
The pending IAs, if any, also stand disposed off.