Vipin Bihari & Anr vs M/s Imperia Structures Ltd

Subhash Chandra, Member

The present Consumer Complaint has been filed under Section 21 (a) (1) of the Consumer Protection Act, 1986 by Complainants against the Opposite Party, i.e., M/s Imperia Structures Ltd., in relation to a residential flat booked in the project, 'The Esfera' situated at Sector 37 C Gurgaon, Haryana.

The brief facts leading upto the present complaint are that the Complainants, who are father and son, booked a residential flat on 08.01.2011 with the OP in its project viz., 'The Esfera', in Sector 37 C, Gurgaon. On allotment of residential flat IMP - E - 0413 in the aforesaid project to them, they executed an agreement with the OP on 02.07.2013. As per Clause 10.1 of the agreement, the construction was to be completed within a period of 3 ½ years unless there was delay or failure due to reasons mentioned in Clause 11.1, 11.2, 11.3 and Clause 41 of the agreement. A Buyer - Seller agreement between the Complainant and the OP was signed on 01.04.2013. The sale price of the apartment was agreed at Rs.68,43,375/- out of which the Complainants had paid a sum of Rs.66,67,846/- to the OP. The grievance of the complainants is that possession was not offered to them and the construction was not completed within the stipulated period of 36 months plus grace period of six months as promised vide agreement dated 01.04.2003. This period expired on 31.03.2016. The Complainants, therefore, served a notice to the Opposite Party on 25.01.2018 seeking refund of their deposits, with interest and penalty. It is also averred by the Complainant that various unjustifiable charges have been levied by the OP relating to parking, EDC, service tax etc. These have been alleged to be unfair trade practice by the Complainants, which is wilful and intentional. It is also averred by the Complainants that delay in execution of the project despite receipt of deposits from time to time amounts to negligence in service and they are accordingly, before this Commission with the following prayer:

(i) Refund of the deposited amount of Rs.66,67,846/-;

(ii) Compensation of Rs.10,00,000/- for suffering pains, hardships, humiliations, mental agony and physical shock, agonies etc.,;

(iii) Interest @ 18% on paid amount amounting to Rs.55,08,780/- from

09.01.2011 till 20.02.2018;

(iv) Penalty of Rs.48,54,240/- @ 20% per annum of the cost paid for delay in handing over physical possession (07.01.2014 till 07.01.2018);

(v) Loss of appreciation of apartment of Rs.10,00,000/- due to delay in handing over possession till date;

(vi) Litigation costs of Rs.2,00,000/-.

Refund of service tax and preferential location charges, illegally and fraudulently charged from complainants by opposite party.

Any other order (s) or relief (s) which the Hon'ble National Commission may deem fit and proper, in the facts and circumstances of the case, including cost of complaint, may also be passed in favour of Complainant and against the Opposite Parties.

The Complainants are before this Commission seeking refund of the amount which they paid to the OP along with compensation etc.

The complaint is contested by the OP on several grounds. The Opposite Party avers that the grounds advanced by the Complainants have been rejected by this Commission in a number of Consumer Complaints instituted against the OP. In its written statement, the OP has made preliminary objections on grounds that the complaint is filed by suppressing material facts. It is averred that the terms of the Buyer's Agreement have been complied and that construction of the Tower in which the Complainants have been allotted the unit has been completed and the Occupation Certificate was applied for on 20.06.2017 and obtained on 07.02.2018. The Complainants according to the OP are not 'consumers' and have failed to prove the same. Delay in execution of the project is on account of obtaining statutory clearances and other reasons such as lack of availability of raw materials, ban construction activity etc., due to orders of the Hon'ble High Court and the Government of Haryana, which are covered under force majeure. The complaint is accordingly not maintainable.

The Complainant has relied up this Commission's orders in Gaurav Agarwal and Anr., Vs M/s Imperia Structures Ltd., in CC No. 693 of 2018 decided on 07.01.2020 and the decision of this Commission in the case of Yogesh Mann and Anr., vs M/s Imperia Structures Ltd ., in CC no. 3072 of 2017 decided on 29.07.2019 (Supra) to the extent it is relevant which reads as under:

The Developer filed their written version, inter alia stating that this Commission does not have pecuniary/ territorial jurisdiction to entertain the complaint. The complaint pertains to a commercial transaction and should be referred to an Arbitrator. Flat no.D - 1604 in the project in question had been allotted to the Complainants as per the terms and conditions of the agreement executed between the parties and the consideration agreed to be paid by the Complainants to the Developer was Rs.74,31,275/- as per the construction linked plan. The construction of the project was to be completed within a period of three and half years from the date of execution of the agreement unless there was delay/ failure due to reasons beyond the control of the Company, including Force Majeure events, compliance of new rules, regulations, orders or notifications made/ issued by the Government or any other authorities with respect to construction at the project site. All other charges other than Basic Sale Price were informed to the Complainants at the time of submission of the application form and the charges towards car parking, PLC, club membership etc., from part of the consideration of the flat. The value of the flat has appreciated since the date of booking. The Complainants despite alleged delay in the project did not exercise the option to cancel the booking under Clause 11.4 of the Agreement and are taking the benefit of appreciation on cost of the flat. The delay in the completion of the project was on account of various orders passed by National Green Tribunal, De-monetization, delay in the approvals/ sanctions, non-payment of dues by the allottees, contractual labour strikes and delay in providing external development works by the Government authorities etc.,

The facts not in dispute are that the Complainants entered into a Builder Buyer Agreement with the Developer in the year 2013 and paid a sum of Rs.62,06,167/- out of the total sale consideration of Rs.73,31,275/- but admittedly the subject apartment is still not completed though the stipulated period of 42 months from the date of execution of the agreement, entered into between the parties, for handing over possession of the apartment booked had expired long back.

The Developer in their affidavit of evidence submitted that the Complainants are not 'consumers' as the subject flat was purchased for commercial purpose. This Commission in FA no. 530 of 2015 (Sai Everest Developers and Anr. Vs Harbans Singh ) has laid down the principle of law that when the plea that the said flat has been purchased for commercial purpose is raised by the Developer, the onus of proof shifts to the Developer to establish whether the Complainant has purchased the subject flat for trading/ dealing in real estate. In the instant case there is no documentary evidence to establish that the developer has discharged this onus. In the absence of any evidence to substantiate this contention, we are of the considered view that the Complainants are 'consumers' as defined under section 2 (1) (d) of the Consumer Protection Act, 1986. We are also of the view that this Commission has the Territorial Jurisdiction to entertain this Complaint and the plea raised by the Developer regarding arbitration has already been settled by the decision of a larger Bench of this Commission in Consumer Complaint no. 701 of 2015 - Aftab Singh vs Emaar MGF Land Limited and Anr., which has also been recently affirmed by the Hon'ble Apex Court. Further, in view of larger Bench decision of this Commission in Ambrish Kumar Shukla vs Ferrous Infrastructure Pvt. Ltd., - I (2017) CPJ 1 (NC) this Commission also has the pecuniary jurisdiction to entertain the complaint.

It is pertinent to note that the Developers has not filed any evidence to support his contention that the delay occurred due to force majeure events. In fact demonetization, non-availability of water and contractual labour, delay in notifying approvals etc., cannot be construed to be force majeure events from any angle.

Keeping in view the admitted incomplete construction and considering the stipulation provided in Clause 11.4, this complaint is partly allowed, directing the Developer to refund the amount deposited with simple interest @ 9% per annum from the respective dates of deposits till the date of realisation together with cost of Rs.50,000/- to be paid to the complainants."

In the instant case, it is an admitted fact that the complainants had booked a flat in the "Esfra' project of the Opposite Party for which purpose an agreement was executed on 02.07.2013 and a Builder-Buyer's Agreement was concluded between the parties on 01.04.2013. It is also not denied that the project was to be completed within 3 ½ years or that Rs.66,67,846/- was paid by the Complainant to the Opposite Party without default. No possession has been offered to the Complainant so far by the Opposite Party even though various further demands have been made for charges towards the flat booked.

We have heard the learned counsels for both the parties and given careful consideration to the records. The Complainant and Opposite Party have filed their evidence and written submissions.

The decision of this Commission in Yogesh Mann and Anr., vs M/s Imperia Structures Ltd., (Supra) very specifically upheld the status of the complainant as a consumer and awarded him refund with interest and costs in view of the incomplete status of the project. The Opposite Party has not substantiated his arguments and failed to produce evidence to defend his arguments to the contrary. We are, therefore, inclined to accept the contentions of the complaint.

We are of the considered view that there is deficiency in service by the Opposite Party in not delivering the flat booked even after expiry of the promised delivery period under Clause 10.1 of the agreement dated 02.07.2013. In view of the admitted non-completion of the flat we allow the complaint and direct to refund of the amount deposited by the Complainants with interest as follows:

OP is directed to refund the amount deposited by the Complainants (Rs.66,67,846/-) with simple interest @ 9% per annum from the respective dates of deposit to the Complainants within a period of three months from the date of receipt of this order;

Litigation costs of Rs.50,000/- to be also paid by the OP to the Complainants;

These directions shall be complied by the OP within three months of the receipt of this order failing which the amount shall attract simple interest @ 12% per annum for the said period.