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Judgment
V.K. Jain, J.
Previous cost has been paid but the OP has still not filed affidavit by way of evidence. IA No. 266 of 2018 has been filed by the complainants bringing the aforesaid default to the notice of this Commission. The affidavit of the OP is ready and advance copy has been supplied today in the Court. The OP is permitted to file the said affidavit.
The complainants booked a residential apartment with the OP on 16/18.05.2012 in a project namely 'Parasvnath Exotica' which the OP was to develop in Ghaziabad. Unit No. B-4/903 in Tower No. B-4 was allotted to the complainants for a consideration of Rs.81,98,925/- and applicable taxes. The parties then executed a Flat Buyers Agreement on 13.09.2012, incorporating their respective applications in respect of the aforesaid transaction. In terms of clause 10(a) of the Agreement, the possession was to be delivered within 36 months of the execution of the agreement though the OP had a grace period of six months available to it. The said agreement was also signed by the collaborator of the OP namely Devidayal Aluminium Industries Private Limited which is stated to be the owner of the land on which the project was to be developed. The possession of the flat having not been delivered and in fact construction having not been completed, the complainants are before this Commission seeking refund of the amount paid by them alongwith compensation etc.
The complaint has been resisted by the OP on several grounds but it is an admitted position that the construction of the flat in Tower B-4 is not complete. The contention of the learned counsel for the OP is that Devidayal Aluminium Industries Private Limited had unilaterally terminated the development agreement and informed the Ghaziabad Development Authority of the same as a result of which, the building plans were not released by Ghaziabad Development Authority. He further submits that now through the intervention of the Hon'ble Supreme Court, the building plans are likely to be approved soon and the construction will be completed thereafter, in a time bound manner.
The learned counsel for the complainants has placed reliance upon the decision of this Commission in CC No.45 of 2015 and CC No.46 of 2015 Parsvnath Exotica Ghaziabad Resident's Association Vs. Parsvnath Buildwell Pvt. Ltd. & Anr. decided on 06.05.2016. In the aforesaid case, 39 members of the complainant society had booked residential flats in Towers B to D of this very project and 31 members of the said association had booked residential flats in Towers E and F. Complaint No.45 of 2015 pertains to the members who had booked flats in Tower B to D whereas complaint no. 46 of 2015 pertains to the members who had booked flats in Towers E and F of the said project. In that case, the time for completing the construction ended in June 2011. Since the possession of the flats was not delivered to the allottees, the complainant association approached this Commission by way of two Consumer Complaints impleading Parsvnath Developers Ltd., Parsvnath Buildwell Pvt. Ltd. and Devidayal Aluminium Industries Private Limited as the OPs in the complaint. The complaints were opposed on several grounds but were eventually allowed by this Commission. The decision of this Commission to the extent it is relevant, reads as under:
" 3. In their reply / written version to the complaint, opposite party No.1 has not disputed bookings made by the members of the complainant association nor has it disputed the payments made by them for the Apartments booked with them. It is alleged that opposite party No.1 Parsvnath Developers Limited and opposite party No.3 Devidayal Aluminium Industries (P) Ltd. had entered into a development agreement wherein opposite party No.1 had agreed to carry out development, construction and sale of areas on the land owned by opposite party No.3 in Ghaziabad. A Special Purpose Vehicle in the name of opposite party No.2 Parsvnath Buildwell was then created to speed up the construction and development activities. It is further alleged that the building plans and site plans were duly approved by Ghaziabad Development Authority on 17.03.2007 but later on, revised building plans were submitted to the said Authority which are still under consideration of the Authority. The Developer, according to the opposite parties, is still awaiting approval of the revised plans. The delay in completion of the construction is sought to be explained on account of the economic meltdown and consequent financial sluggishness and recession in the market. It is stated in the written submissions filed by the developer that they shall offer possession of the flats in Towers A, B, C and D within 18 months from the date of receipt of the approval of the revised building plans. According to them, the status of construction in Towers A-D is as under:
Tower No.
Status of Construction
A1
Completed seventh floor Roof Slab. Internal Plaster upto Ground Floor is completed
B3
Excavation done
B4
Completed Ninth floor Roof Slab. Internal Plaster upto Ninth Floor is completed
B5
Completed Tenth floor Roof Slab. Internal Plaster upto Seventh Floor is completed
C1
Completed Seventh Floor Roof Slab. Internal Plaster upto Sixth Floor is completed
C2
Completed Seventh Floor Roof Slab. Internal Plaster upto Ground floor is completed
D1
Completed Twelfth floor Roof Slab. Internal Plaster upto Eleventh Floor is completed
D2
Completed upto Twelfth floor Roof Slab. Internal Plaster upto Eighth Floor is completed
D3
Completed Twelfth floor Roof Slab. Internal Plaster upto Twelfth Floor is completed
D4
Completed Twelfth floor Roof Slab. Internal Plaster upto Twelfth Floor is completed
D5
Completed Twelfth floor Roof Slab. Internal Plaster upto Twelfth Floor is completed
Tower E and F were launched by the developer in the first quarter of 2012 but the building plans in respect of the said towers have not been approved till date.
Consumer Complaint No. 45 of 2015
As noted earlier, this complaint pertains to those members of the complainant association who had booked residential flats in Sector B to D of the project Parsvnath Exotica in Ghaziabad. As per Clause 10 (a) of the Agreements executed between the opposite party No.1 Parsvnath Developers Ltd., and the flat buyers, the construction was likely to be completed within a period of 36 months from the commencement of the construction after sanction of building plans and accord of all the necessary approvals. This is the case of the opposite parties that the said approvals were granted by the Ghaziabad Development Authority on 17.3.2007. The construction therefore, should have been completed by 17.3.2010. Admittedly, the construction is far from the complete and the developer has submitted revised plan to Ghaziabad Development Authority, which are yet to be approved. It is stated in the written synopsis filed by the developer that they deposited a sum of Rs.11,30,000/- with the Authority on 13.4.2011 and obtained the Fire NOC on 25.3.2013. It is thus evident that the revised plans were submitted after the time stipulated in the Buyers Agreement for completion of the construction had already expired on 17.6.2010.
The developer therefore, not only failed to complete the construction by the stipulated date, it has further prolonged the said delay by submitting a revised plan to the Ghaziabad Development Authority. The submission of the revised building plans was bound to result in further delay in completion of the flats which had already sold. Being aware of its contractual obligation to complete the construction within 36 months and the fact that the said construction had already been delayed, the opposite party ought not to have sought revision of the building plans which it had earlier got approved from the Ghaziabad Development Authority, without prior approval of the flat buyers, who had made booking on the basis of the time period committed by the said developer for completion of the Apartments. In fact, the reply provided by the Ghaziabad Development Authority under Right to Information Act, shows that since the time limit for completing the construction has expired, the construction work has been altogether stopped by the Authority. Therefore, the developer is squarely responsible for the delay in completion of the apartments which it had sold to the members of the complainant association.
As regards, the alleged sluggishness in the real estate and economic slowdown, they are not valid reasons for the delay in completion of the construction and is in any case the developer has failed to establish how the alleged sluggishness and economic slowdown had prevented it from completing construction of the apartments which it had sold to the members of the complainant association. Though, Clause 10(a) of the Buyers Agreement contains a Force Majeure Clause, no factual situation attracting the invocation of the aforesaid Force Majeure Clause has been established by the developer. There is no evidence or even allegation of any Court / Authority having stopped or restrained the construction. There is no evidence of the building material not been available in the market. There is no evidence of the developer having any dispute with the contractor or the workforce of this particular project. Therefore, the delay in completion of the construction cannot be justified.
Though, the Agreement between the developer and the flat buyers provides for payment of compensation in case of delay @ Rs.5/- per square feet of the super area per month, such clauses have been found to be unfair trade practice and have been consistently rejected by this Commission in several decision, including Consumer Complaint No. 427 of 2014 Satish Kumar Pandey & Ors. Vs. Unitech Ltd. and connected matters decided on 08.6.2015. Therefore, the aforesaid clauses cannot be taken into consideration, while determining the compensation payable to the members of the complainant association for the aforesaid delay in completion of construction.
Consumer Complaint No. 46 of 2015
Such members of the complainant Association who were allotted residential flats in Sector E and F are in a worse position since even the building plans for construction of the aforesaid towers have not been approved so far and therefore, no construction at all has started.
Though, in Consumer Complaint No.45 of 2015, the main prayer made by the complainant is to direct delivery of the possession of the flats to the allottees complete in all respects, coupled with execution of the tile deed in their favour, when this matter came up for hearing on 27.4.2016, the learned counsel for the complainant stated on instructions, that since the building plans for construction of towers No. A-D have already lapsed and the revised plans have not been sanctioned as yet, the said allottees are not interested in waiting any longer for delivery of the possession of the flats and want to take refund, along with appropriate compensation for the financial loss suffered as well as the harassment and mental agony caused to them. The learned counsel for the opposite party submitted in this regard that no prayer for refund has been made in Consumer Complaint No.45 of 2015. In our opinion, even in the absence of any specific prayer, it is always open to this Commission to grant a relief which is justified and warranted in the facts and circumstances of the case. These allottees booked the flats way back in the year 2007-08. The possession of the flats was to be delivered to them by June, 2001. Almost five years have expired since the date by which the construction was to be complete.
Since the revised building plans have not been approved as yet, it cannot be known when the opposite party will be able to complete the construction of these four towers and deliver possession to the allottees. In fact, as stated in the written submissions filed by M/s. Devidayal Aluminium Industries (P) Ltd., even the development contract with the builder has been cancelled by them. Therefore, at present neither the builder has valid building plans which would enable it to resume the development nor does it have a subsisting development agreement with the land owner. In these circumstances, the allottees cannot be made to wait indefinitely for the possession of the flats booked by them and they are entitled to seek refund of the entire money paid by them, along with appropriate compensation in the form of interest for the financial loss suffered by them by keeping their money with the opposite party. The money which they paid to the opposite party may have been borrowed or may be their own money. In case, they had taken loans, they would have paid interest on the said loan. In case, they have given their own money to the opposite party, the very same money would have been used by them either by way of a financial investment or in purchase of some other flat the value of which would have appreciated substantially with the passage of time and in which they would also have been able to live.
As far as the allottees in tower E & F are concerned, they have already sought refund as an alternative relief, along with compensation under several heads. Therefore, we have no hesitation in holding that in the facts and circumstances of the case the allottees in both the complaints are entitled to refund of the money paid by them, along with appropriate compensation in the form of interest for the financial loss suffered by them. They are also entitled to appropriate compensation for the mental agony and harassment suffered by them on account of the failure of the opposite party to deliver possession of the flats booked by them. In this regard, it is to be kept in mind that a person books a residential flat for the purpose of having a roof over his head, and in the hope that on completion of the construction within the time promised by the builder he will be able to live in a house of his own. Therefore, he is bound to feel disappointed and frustrated when the builder does not deliver upon its promise for years together."
Two appeals being Civil Appeal No. 5335 of 2016 and 5336 of 2016 were preferred by the OP against the above referred decision of this Commission and the said appeals are still pending before the Hon'ble Supreme Court. As an interim order, the Hon'ble Supreme Court has directed payment of principal amount alongwith 10% interest.
In view of the decision of this Commission in CC No.45 of 2015 and CC No.46 of 2015, the grounds on which this complaint has been opposed, need not be considered afresh. Suffice it to say that if the land owner M/s Devidayal Aluminium Industries Private Limited had unilaterally cancelled the agreement with the developer, it is open to the developer to have such remedy as may be available to it in law but the flat buyers cannot be penalized for the aforesaid act on the part of the land owner.
The learned counsel for the OP submits that part of the payment received by them from the complainants was paid to Devidayal Aluminium Industries Private Limited and therefore, the complainants should be directed to implead Devidayal Aluminium Industries Private Limited as a party to this complaint and recover the aforesaid amount from them. I however, find no merit in this contention since the payment was made by the complainants to the OP and not to Devidayal Aluminium Industries Private Limited. It is always open to the OP to take such action as may be available to it in law against Devidayal Aluminium Industries Private Limited for the recovery of the said amount.
The learned counsel for the complainants on instructions from the complainant who is present in the Court states that the complainant is restricting her claim to the payment of the entire principal amount paid by her alongwith compensation in the form of simple interest @ 10% per annum from the date of each payment till the date of refund. The complaint is therefore, stands disposed of with the following directions:
(i) The OP shall refund the entire principal amount of Rs.67,24,056.44p to the complainants alongwith compensation in the form of simple interest @ 10% per annum from the date of each payment till the date of refund.
(ii) The OP shall also pay a sum of Rs.25,000/- as the cost of litigation to the complainants.
(iii) The payment in terms of this order shall be made withn three months from today.