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Judgment
Dr.Inder Jit Singh, Member
The present Consumer Complaint (CC) has been filed under Section 21(a)(i) of the Consumer Protection Act, 1986 by the Complainants against the opposite parties as detailed above, inter alia praying for :-
(i) Refund of the entire amount paid by the complainant to the opposite parties towards consideration of the flat booked by them in the project of Opposite Parties known as “RISE”, situated in RP City, Sector 37-D, Gurgaon, Haryana, alongwith interest @18%.
(ii) Rs 5,00,000/- as compensation on account of mental agony, harassment and towards cost of proceedings etc.
Notice was issued to the opposite party on 08/01/2019 giving them 30 days time to file their written statement.
It is averred/stated in the complaint that:-
i) That the complainants booked a flat on 27.04.2012 in the residential Project launched by the Opposite Parties in the name of “RISE”, situated in RP City, Sector 37-D, Gurgaon, Haryana and was allotted flat No. 2203, on the 22nd Floor, tower A with a Super Area 1765 sq.ft. A provisional allotment letter dated 25.05.2012 was issued. Buyer’s agreement dated 26.12.2012 was entered between the parties. The total consideration for the flat was Rs 82,83,311/- out of which, the complainants paid Rs.75,69,936 till 15.11.2016. The OPs were liable to handover the possession of the unit within 36 months from the date of 26.12.2012.
ii)After having paid almost 95% of the total cost of the flat, the OPs failed to hand over the possession within the stipulated period and it is alleged that the construction has not been completed so far. The Complainants are the original allottee.
iii)It is averred in the Complaint that some of the clauses in the ABA are/were one sided, the allottees had to sign already prepared documents and some of the clauses contained therein were totally unreasonable and were in favour of OPs only. The ABA was a fixed set of papers, which was asked to be signed by the allottees, including the complainants, and no modification was entertained by the OPs. On request to change the one-sided clauses, it was told that ABA has to be signed as it is and in case it is not acceptable, then the allotment will stand cancelled and earnest money will be forfeited. Seeing no option, the Complainants had to sign the agreement containing one sided clauses favouring the OPs only.
iv)As per ABA clause 15 (a), OPs were bound to give possession of the apartment to complainants by September, 2015. But till date the construction is not completed and possession has not been handed over, there is a significance delay in handing over the possession hence OPs are deficient in rendering services. It is further stated that the complainants have now lost all faith in the project of the OPs. The complainants do not now wish to reside in the apartment even if the OPs delivers the possession of the same to him in the near future. Hence the complainants wish refund of the amount paid by them along with interest so that they can purchase another house.
v)The buyers are suffering from the tremendous financial losses as they are forced to live in rented accommodation/pay EMIs without getting the benefit of the flat. It is alleged in the complaint that the act and omission of the OPs fall 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. There are malpractices on the part of OPs to take money from the buyers and use it elsewhere and delay the project unreasonably for their wrongful gains causing wrongful losses and injuries to buyers including the complainant
OP-1 in their written statement/reply stated that :-
i. The OP-1 in their written statement/reply has stated that OP-1 is a company incorporated under the Companies Act 1956, and is a real estate developer. OP-1 has denied the fact of deficiency in providing its services and being involved in unfair trade practices and restrictive trade practices as alleged in the complaint.
ii. OP-1 stated that the delay in handing over the possession of the Apartment was on account of force majeure and unforeseeable circumstances beyond the control of OPs, including a ban on use of ground water by Hon’ble High Court of Punjab & Haryana vide its order dated 16.07.2012 directing to use only treated water from available Sewerage Treatment Plants followed by a letter date 1.9.2012 from Dy. Commissioner, Gurgaon in this regard, heavy shortage of supply of construction material pursuant to orders of Hon’ble Supreme Court in the Case Deepak Kumar etc. Vs. State of Haryana, Demonization announced by Government of India on 08.11.2016, shortage of labour/workforce in the real estate market due to implementation of Government Programmes like NREGA, JNNURM, etc.
iii. That the complainants have filed the present complaint with malafide intention to extract huge sums of money from the OPs. It is also averred that clause 15(a) of the ABA is subject to Clause 31-Force Majeure, and in certain circumstances the date of possession gets extended automatically. Moreover, as per Clause 17(a) of ABA, in the eventuality of delay in handing over possession beyond the period stipulated in Clause 15(a), the allottee will be compensated with Rs5/- per sq ft per month of super area. It is contended that, time is not the essence in respect of delivering the possession of the apartment, and the stipulated date of delivery was only tentative and was not a firm date. Hon’ble Supreme Court in para 18 of its judgement in Bangalore Development Authority Vs Syndicate Bank (2007) 6 SCC 711 has held that in a contract involving construction, time is not the essence of the contract unless specified. The complainants herein are bound by the terms of the ABA, which was held by the by the Hon’ble Supreme Court in Secretary, Bhubaneswar Development Authority vs. Susanta Kumar Mishra reported as [V (2009) SLT, 242].
iv. That by the amendment of section 2(1)(d)(ii) of the Consumer Protection Act, 1986, definition of “consumer” has been redefined to oust the person availing services for commercial purposes, the Hon’ble Commission has held in catena of cases that a person whose sole objective is to make a profit in relation to its claim and not to redress any alleged injury or the one who obtains an Apartment not for their own use, does not fall under the ambit of definition of “consumer”. That the parties have agreed in Clause 37 of the agreement, where in case of a dispute it should be initially referred to conciliation and if not resolved, be finally settled by arbitration under provisions of Arbitration and Conciliation Act, 1966. The project is a RERA registered project and the question of default in completion needs to be first adjudicated by the RERA/Competent Authority. This Commission lacks proper jurisdiction to entertain the present complaint since the same comes within the purview of RERA. This Commission lacks pecuniary jurisdiction since the amount involved is less than Rs. One crore.
OP-2 in their written statement/reply stated that :-
OP-2 in their written statement/reply has stated that they are not a proper and necessary party to the present complaint. OP-2 is only a financer of the project and in order to secure and recover its funding has executed a Joint Development Agreement (JDA) dated 29.11.2011 with OP-1, which is also referred to in the ABA dated 26.12.2012. The OP-2 is neither the owner of the land nor liable for the construction and development works in any way whatsoever. OP-2 is in no way responsible for the financial transactions between the Complainants and OP-1, therefore no amount of liability in any manner can be imposed on OP-2. Thereafter, the OP-2 in its written statement has made averments as similar to OP-1 and has supported the stand taken by OP-1.
Rejoinder was filed by the Complainant on 29.01.2020. Evidence by way of affidavit was filed by the complainant on 29.01.2020 and by the OP-1 on 07.03.2020 and OP-2 on 17.03.2020
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
“RISE”, situated in RP
City, Sector 37-D, Gurgaon, Haryana
2
Apartment no.
2203, Floor 22, Tower A
3
Size (Built up/ Covered/ Super Area)
1765 sq.ft. Super Area
4
Date of application
27.04.2012
5
Date of signing Buyers’ Agreement
26.12.2012
6
Committed date of possession as per Buyers’ Agreement (with Grace period of 120 days)
January 2016
7
Total Consideration
Rs. 82,83,311
8
Amount Paid
Rs. 75,69,936
9
D/o Filing CC in NCDRC
02.01.2019
10
D/o Issue of Notice to OP
08.01.2019
11
D/o Filing Reply/Written Statement by OP-1
01.04.2019
12
D/o Filing Reply/Written Statement by OP-2
28.03.2019
13
D/o filing Rejoinder by the Complainant
29.01.2020
14
D/o Filing Evidence by way of
Affidavit by the Complainant
29.01.2020
15
D/o Filing Evidence by way of
Affidavit by the OP-1
07.03.2020
16
D/o Filing Evidence by way of
Affidavit by the OP-2
17.03.2020
17
D/o filing Written Synopsis by the Complainant
11.02.2022
18
D/o filing Written Synopsis by the OP-1
26.07.2022
19
D/o filing Written Synopsis by the OP-2
Not Filed
Heard counsels of both 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 Complaint is barred by limitation 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 07 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 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 M/s Ramprastha Promoters And Developers Pvt. Ltd. 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 M/s Ramprastha Promoters And Developers Pvt. Ltd., the appellant-builder cannot seek to bind the respondent with such one sided contractual terms.” The plea of OPs that the RERA is the Competent Authority to decide the matter is also not valid. as remedies under the Consumer Protection Act were in addition to the remedies available under special statue”. Hence, this Commission has the jurisdiction to entertain this complaint.
In the instant case, there is an inordinate delay in handing over the possession of flat by the OPs. The complainants 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 of the ABA is not valid.
This Commission in various CCs, some of which are listed below, against the same OP, involving similar/identical facts, keeping in view the submissions of counsel of the parties regarding rate of interest, have allowed refund to the concerned complainant along with interest @ 8%. During the argument, the counsel for Complainant in the present cases also relied upon the earlier judgements of this commission. Hence in the present cases also the interest is restricted @ 8%.
i. CC No.1258 of 2019, Manpreet Singh Deol V/s Ramprastha Promoters and Developers Pvt.Ltd. &Anr.
ii. CC No. 310 of 2019 Madan Jeet Singh & Anr. V/s Ramprastha Promoters and Developers Pvt.Ltd. &Anr.
iii. CC No.602 of 2018 Yogesh Kumar Gupta & Anr. V/s Ramprastha Promoters and Developers Pvt.Ltd. & Anr. and connected cases.
iv.CC No. 2380 of 2018 Suresh Kumar Singhvi V/s Ramprastha Promoters and Developers Pvt.Ltd. & Anr.
v. CC No.1407 of 2018 Kavitha Bommareddy & Anr. V/s Ramprastha Promoters and Developers Pvt.Ltd. & Anr. and connected cases.
vi. CC No.1093 of 2019 Ashu Chugh & Anr. V/s Ramprastha Promoters and Developers Pvt.Ltd. & Anr. and connected cases.
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.75,69,936 (Rupees Seventy five lakhs sixty nine thousand nine hundred and thirty six only) to 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 OPs shall pay a sum of Rs.25,000/- as cost of litigation to the complainants.
(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 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(s) 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.