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Judgment
The bunch of present Consumer Complaints has been filed under Section 12(1) (a) read wi Sections 21 and 22 of the Consumer Protection Act, 1986 (for short “the Act”) by th Complainants/Purchasers of the Flats/Apartments in Group Housing Residential Project, und the name and style “THE ESFERA” proposed to be developed at Sector 37 C, Gurgaon 9 District Gurugram, Haryana (hereinafter referred to as the “Project”), by the Opposite Party, i. M/s. Imperia Structure Ltd. (hereinafter referred to as the Developer), inter-alia, allegin deficiency in service in not handing over the possession of the booked Flat/Apartment with stipulated period and seeking refund of amount deposited by them along with reasonab interest and compensation.
Since the facts involved in these Complaints are similar except for minor variations in the Un Numbers and their Sale Consideration, these Complaints are being disposed of by this commo Order. However, for the sake of convenience, the facts as enumerated in Consumer Complai No. 969 of 2019 have been discussed at length herein.
Facts as narrated in the Complaint are that the Developer decided to develop a Residenti Group Housing Project called “ THE ESFERA” at Sector 37 Gurgaon 92, Haryana. Bein allured by the representations of the Developer, Complainants, husband and wife, applied f booking of a Residential Apartment for use of self and family on 17.09.2011, and subsequentl Complainants were allotted Apartment No. 303 in Tower C on 3 rd floor having Super Area 1650 Sq. Ft, for a total Sale Consideration of 71,56,250/-. After a span of two years, pre-printed set of papers christened as “ Apartment Buyer Agreement ” (hereinafter referre to as “the Agreement) were sent to the Complainants for signatures. According to th Complainants, these papers were actually a standard form adhesion contract having sever unconscionable Clauses. It is averred that the Developer threatened to cancel the allotment an forfeit the earned money if the Agreement is not signed, therefore, the Complainants execute the Agreement on 24.01.2013.
The Complainants opted for a construction linked payment plan and in order to pay the Sa Consideration, also took a Home Loan from State Bank of India for which the Complainan are still paying the EMIs. In terms of Clause 10.1 of the Agreement, possession of the booke Apartment, complete in all respect, was supposed to be handed over by the Developer within period of three and half years (42 months) from the date of execution of the Agreement that latest by 24.07.2016. Pertinently, Clause 10.1 reads as under:-
“10.1 The Developer/company based on the its present plans and estimates and subject to all just exceptions, contemplations, complete construction of the said building/said apartment within a perio of three and half years from the date of the execution of this Agreement unless there shall be delay o there shall be failure due to reasons mention in Clause 11.1, 11.2, 11.3 and Clause 41 or due to failur of the intending allottee(s) to pay in time the price of the said Apartment along with other charges an dues in accordance with the schedule of payments given in Annexure F or as per the demands raised by the Developer/Company from time to time or any failure on the part of the intending allottee(s) to abide by all or any of the terms or conditions of this Agreement.”
According to the Complainants, a sum of 61,91,860/- out of the total Sale Consideration 71,56,250 have been paid to the Developer but still they have miserably failed to deliver th possession of the Apartment purchased by them. Complainants kept pursuing with th Developer with respect to the status of construction of the Project and the exact date of handin over the possession of the Apartment, however, the Officials did not respond. Since th Developer had been deficient in providing services by failing to deliver the possession of th apartment within the stipulated time and therefore, the Complainants sought refund from th Developer via email dated 14.05.2019, however, no amount has been refunded till date. It also alleged that the terms of the Agreement were unjust, unreasonable, unfair and in favour the Developer and the Complainants were forced to sign the Agreement. The Developer h been charging interest @ 18% p.a. for delay in payment of instalments by the Complainan however, on the contrary if there are any delay on their part in handing over the possessio they were liable to pay only 5/- per Sq. Ft. per month which is totally arbitrary and amount Unfair Trade Practice. The Complainants have lost trust in the Developer and no mo interesting in taking the possession of the Apartment purchased by them. Hence, allegin deficiency in service and Unfair Trade Practice on the part of the Opposite Party Developer, th Complainants have filed the present Complaint with following prayer:-
“i) Direct the Opposite Party to refund to the complainants, the entire amount paid b the complainants along with interest at the rate of 18% per annum on the said amou calculated from date of each payment to OP till date of actual refund.
ii) Direct the Opposite Party to refund the entire amount paid by the complainants a EMIs on home loan alongwith 18% interest on the same;
iii) pay a sum of 5,00,000/- to Complainants as compensation for mental harassme and anxiety:
iv) Direct the Opposite Party to pay a sum of 1,00,000/- to complainants as litigatio cost.
Similar prayers have been made by the Complainants in other connected Consumer Complaints. For ready reference, the necessary details of name of Complainants, Consumer Complaint Number, allotted Flat Number and their Super Area, Date of Buyers’ Agreement, promised date of possession amount paid and whether offer of possession has been made or not, are given below:-
S. NO
Name of Complainant
Complaint No.
Flat No.
Super Area (per Sqft)
Date of
Apartment buyer Agreement
Due date for delivery
of possession
Amount paid to
Op till
date (in Rs)
Whether possessio offered till date
1.
Vipin Gupta & Anr
CC/969/ 2019
C-303
1650
24.01.2013
24.07.2016
61,90,860
NO
2.
M a d h u Kumari
CC/970/ 2019
E-203
1650
01.10.2012
01.10.2015
65,17,625
NO
3.
Amit Ranjan
CC/971/ 2019
A-1102
1850
21.02.2013
21.08.2016
81,71,552
NO
4.
Jitender Saini
CC/972/ 2019
D-602
1435
22.04.2013
22.10.2016
63,94,717
NO
5.
Nimesh Maheshwari & Anr
CC/973/ 2019
C-1001
1650
20.04.2013
20.10.2016
70,70,856
NO
6.
Sharda Devi & Anr.
CC/974/ 2019
D-1102
1435
28.02.2014
05.08.2017
61,014,32
NO
7.
Sandeep Aggarwal & Anr.
CC/975/ 2019
C-304
1435
15.10.2012
15.10.2015
56,04,948
NO
8.
Gur Dayal Sharma & Anr.
CC/976/ 2019
Single flat allotted by op vide consumer Ref. No. IMP-E-0295
but OP refers it as D1701, E1701, & E-1303
1650
Booking application dated 24.10.11Allotment letter dated
10.05.12 Op has deliberately not executed agreement till date.
More than reasonable amount of time has passed and n o possession till date.
64,68,116
NO
Upon notice, the Opposite Party Developer tendered their Written Version denying the conten of the Complaint and raising the preliminary issues that; (i) the Complainants purchased th Apartments/Flats for investment and gaining profit and as such they are not the “Consumers” defined u/s 2(1)(d) of the Act; (ii) complaint is pre-mature as possession has to be given in 2019 informed before RERA; (iii) this Commission does not have the pecuniary jurisdiction to entertain th complaint; (iv) the complaint is bad for want of territorial jurisdiction to this Commission.
On merits, it is contended that; (i) the entire Project was divided into two phases i.e. Phase comprises of towers F, G and H and Phase II comprises of Towers A, B, C, D and E (ii) constructio of Phase-I is already complete for which the Occupancy Certificate was applied on 20.06.2017 an subsequently granted to the Developer on 07.02.2018; (ii) more than 70 families are residing in Pha I; (iii) 85% of construction of Phase II is complete and possession whereof will be handed over as p timelines provided to the RERA; (iv) the delay, if any, has occasioned due to extra time consumed obtaining statutory clearances from the Statutory Authorities, lack of availability of raw material labour strike, ban on construction activities, restrictions imposed by Hon’ble High Court of Punja and Haryana in C.W.P. 20032 of 2008 and subsequent orders passed by the Town and Count Planning Department and these circumstances were not within the control of the Developer an therefore are events of force majeure; (v) the Agreement was signed by the Complainants after goin through the contents of the same and time and again they have informed by the Developer about th reasons for delays which were beyond their control; (vi) as per Clause 11.1 of the Agreement, th Developer is entitled for extension of time for the delivery of possession if there is any delay due t force majeure reasons; (vii) parties are bound by terms and conditions of the agreement and th Complainants have further failed to terminate the agreement if there was delay in completion of th project; (viii) since there was no delay attributable to the Opposite Party Developer, no cause action has arose against the Developer and as such the Complaint is liable to be dismissed; (ix) eve assuming that there was some delay in handing over the possession of the booked Flats/Apartments the Complainants, as per clause 11.4 of the Agreement, the Complainants are entitled f compensation @5/- per Sq. Ft. per month.
We have heard Ms. Priyanjali Singh, learned Counsel appearing on behalf of the Complainant Mr. Pravin Bahadur, learned Counsel appearing on behalf of the Opposite Party Developer and hav given a thoughtful consideration to the written arguments filed by them.
Learned Counsel appearing for the Complainants has argued that the Developer has violated th terms of the contract since it has failed to hand over the possession of the booked Flats/Apartmen till date. That the onus is on the Developer to prove that the Complainants are not the “Consumer and are involved in the business of real estate. She further submitted that the Developer is not boun to handover possession as per RERA deadlines but as per the terms of the Contact , as has bee envisaged by the Hon’ble Supreme Court in C.A. No. 3581-3590 of 2020 titled M/s Imper Structures Ltd. vs. Anil Patni, decided on 02.11.2020 . It is further strenuously urged by her that th delay in handing over the possession is wholly attributable to the Developer and they hav completely failed to lead any cogent and valid documentary evidence to substantiate that the dela was for the reasons which were beyond their control. She further submitted that the prese Consumer Complaints are squarely covered by the decision of the Hon’ble Supreme Court in the ca of M/s. Imperia Structures Ltd. Vs. Anil Patni & Anr. – (2020) 10 SCC 783 decided on 020.11.2020 which relates to the same project i.e “ESFERA” and wherein the directio by this Commission to the Developer to refund the deposited amount with interest @9% p.a. w upheld.
Per contra , learned Counsel for the Opposite Party Developer has vehemently argued that th delay has occasioned on account of reasons which were beyond their control such as compliance new rules, regulations, orders, notifications, etc coupled with statutory clearances. He furth submitted that the Real Estate Sector has been reeling under pressure for last many years and th demonetization along with the pandemic has had unfathomable adverse effect on the entire econom However, he submitted that the Developer is still willing to provide the possession of the Apartme to the Complainants which had been booked by them according to the terms of the Agreement, sinc the Project is at its final stage of completion. He vigorously asserted that the Project got delaye owing to delays in making timely payments by the Complainants, lack of raw material, labour strik ban on construction by the Punjab and Haryana High Court, delay in getting water supply etc.
We have given our thoughtful consideration to the arguments advanced by the learned Couns for the parties.
Recently, this Commission in the case of Brigadier Harir Pant and Ors. Vs. Imperia Structu Ltd. – IV (2021) CPJ 154 (NC) – decided on 11.10.2021 which relates to the same Project i.e “ESFERA” and the same Developer, while dealing with the question of delay in completion of th Project and handing over the possession of the Flats/Apartments purchased by the Buyers, h rejected the more or less the similar defence taken by the Developer. It was held as under:-
“ All the contentions raised by the Opposite Party Developer in respect of the Proje 'The ESFERA' have been dealt with in detail by this Commission in "CC No. 1605 of 201 titled as Pinki Saini vs Imperia Structure Ltd. and connected matters" decided o 09.08.2018 and in "CC No. 3011 of 2017 titled as "Anil Patni & Anr. Vs. M/s. Imper Structures Ltd." and other connected matters, vide Order dated 12.09.2018, th Commission partly allowed the Consumer Complaints by observing as under:-
“9. The Developer in their Affidavit of Evidence submitted that-the Complainant not a 'Consumer' as the subject flat was purchased for commercial purpose. Th Commission in FA No. 530 of 2015, Sai Everest Developers & Anr. Vs. Harban Singh, has laid down the principle of law that when the plea that the said flat ha been purchased for commercial purpose is raised by the Developer, the onus of pro shifts to the Developer to establish whether the Complainant has purchased th subject flat for trading/dealing in real estate. In the instant case there is n documentary evidence to establish that the Developer has discharged this onus. I the absence of any evidence to substantiate this contention, we are of the considere view that the Complainant is a' consumer' as defined u/s. 2(1)(d) of the Consum Protection Act, 1986. We are also of the view that this Commission has th Territorial Jurisdiction to entertain these Complaints and the plea raised by the Developer regarding Arbitration has already been settled by the decision of a Larg Bench of this Commission in Consumer Complaint No. 701 of 2015, Aftab Singh V Emar MGF Land Limited & Anr., which has also been recently affirmed by th Hon'ble Apex Court. The contention of the Developer that the Complainants hav not paid the demands made on casting of 17th floor, 20th floor and for outsid painting is untenable as the construction itself is still not complete and there is n pleading in the Written Version giving any specific date of offer of possession.
It is pertinent to note that the Developer has not filed any evidence to support h contention that the delay occurred due to force majeure events. In fa demonetization, non-availability of contractual labour, delay in notifying approva cannot be construed to be force majeure events from any angle.
Learned Counsel for the Developer vehemently argued that the Complainan were offered alternative accommodation vide letter dated 03.04.2017 which was n accepted by them. The said letter is reproduced as hereunder:-
"Be that as it may, in view of your allegations of delay which we deny, w hereby offer that till we complete construction of your subject matter fiat w shall arrange alternative accommodation/flat for you in Group Housin Colony named "Takshila Heights" situated at Sector-37C, Gurgaon o lease/rent with immediate effect. We will bear the rent of alternativ accommodation/flat at "Takshila Heights". However, you shall have to pa the common area maintenance charges and other user based charges lik electricity, etc., which you would have borne for your flat in "Esfera" a well."
It is significant to mention that in the afore-noted letter there is a admission by the Developer that the construction is still not complete Additionally, even the specific date of delivery of possession has not bee mentioned anywhere either in the Written Version or in the Affidavit or eve in the letter dated 03.04.2017 which the Counsel is relying upon.
This Commission in Emmar MGF Land Ltd. & Ors. Vs. Amit Puri : II (2015) CP
568 (NC) has laid down the ratio that if the construction is incomplete and the mone deposited by the Complainants is lying with the Developer it is the discretion of th Complainants whether to await for the project to be completed or seek refund. In th instant case the facts and circumstances and the material on record evidence that th promised date of delivery of possession is 42 months from the date of the Builder Buy Agreement and till date the construction is not complete. Hence we are of th considered view that there is deficiency in service on the part of the Developer and w direct refund of the amount deposited by each of the Complainants with reasonab interest. Ld. Counsel on instructions from the Complainants, who are also present person, submitted that to put a quietus to this matter and not to be engaged in an further litigation, interest @ 9% p.a. is acceptable to each of the Complainants as th same was promised by the Developer in Clause 11.4 of the Builder Buyer Agreemen The relevant portion of the Clause 11.4, reproduced in paragraph 7, clearly stipulat that the Developer's liability, in the event of becoming unable to offer possession with 3 years from the date of the execution of the agreement, shall be limited to refund of th amounts paid by the intending allottees with simple interest @ 9% p.a. for the perio such amounts were lying with the Developer.
Keeping in view the admitted incomplete construction, the fact that some of th Complainants have also taken bank loans and are paying EMIs and considering th stipulation provided in Clause 11.4, this Complaint is partly allowed directing th Developer to refund the amounts deposited with simple interest @ 9% p.a. from th respective dates of deposits till the date of realization together with costs of Rs. 50,000 to be paid to each of the Complainants. The directions are to be complied within fou weeks from the date of receipt of a copy of the order, failing which, the amount sha attract interest @ 12% p.a. for the said period."
The Opposite Party Developer challenged the Order dated 12.09.2018 passed by th Commission in "CC No. 3011 of 2017 titled as "Anil Patni & Anr. Vs. M/s. Imper Structures Ltd." and other connected matters" by way of filing Civil Appeals before th Hon'ble Supreme Court. The Hon'ble Supreme Court dealt with all the contentions raise by the Opposite Party Developer and dismissed these Civil Appeals vide their Judgme dated 02.11.2020 in the case "M/s. Imperia Structures Ltd. vs. Anil Patni & Anr." [Civ Appeal Nos. 3581-3590 of 2020 with Civil Appeal No. 3591 of 2020] by observing as under
"18. At the outset, we must deal with two factual issues. It was concluded by th Commission that; (i) all the Complainants were 'Consumers' within the meaning the Act and that; (ii) there was delay on part of the Appellant in completing th construction within time. The stand taken by the Appellant at various stages, itse acknowledged that there was delay but the Appellant tried to rely on certain even as mentioned in ground (c) quoted hereinabove. In our view, the conclusions draw by the National Commission in relation to these issues are absolutely correct and d not call for any interference.
....
We may now consider the effect of the registration of the Project under th RERA Act. In the present case the apartments were booked by the Complainants 2011-2012 and the Builder Buyer Agreements were entered into in November, 201 As promised, the construction should have been completed in 42 months. The perio had expired well before the Project was registered under the provisions of the RER Act. Merely because the registration under the RERA Act is valid till 31.12.202 does not mean that the entitlement of the concerned allottees to maintain an actio stands deferred. It is relevant to note that even for the purposes of Section 18, th period has to be reckoned in terms of the agreement and not the registratio Condition no. (x) of the letter dated 17.11.2017 also entitles an allottee in sam fashion. Therefore, the entitlement of the Complainants must be considered in th light of the terms of the Builder Buyer Agreements and was rightly dealt with by th Commission.
Lastly, it may be noted that the Consumer Protection Act, 2019 (hereinaft referred as, "2019 Act") was enacted by the Parliament "to provide for protection the interests of consumers and for the said purpose, to establish authorities fo timely and effectively administration and settlement of the consumers' dispute an for matters connected therewith or incidental thereto". Sections 2(7), 2(33), 2(37 and 2(42) define expressions "Consumer", "Product", "Product Seller" an "Service" respectively. Sections 85 and 86 deal with liability of "Product Servic Provider" and "Product Seller". Sections 100 and 107 of 2019 Act are to th following effect:-
"100. The provisions of this Act shall be in addition to and not in derogatio of the provisions of any other law for the time being in force.
(1) The Consumer Protection Act, 1986 is hereby repealed.
(2) Notwithstanding such repeal, anything done or any action taken o purported to have been done or taken under the Act hereby repealed shall, so far as it Is not inconsistent with the provisions of this Act, be deemed have been done or taken under the corresponding provisions of this Act.
(3) The mention of particular matters in sub-section (2) shall not be held prejudice or affect the general application of section 6 of the General Claus Act, 1897 with regard to the effect of repeal."
Section 100 of 2019 Act is akin to Section 3 of the C.P. Act and Section 10 saves all actions taken or purported to have been taken under the C.P. Act. is significant that Section 100 is enacted with an intent to secure the remedi under 2019 Act dealing with protection of the interests of Consumers, eve after the RERA Act was brought into force.
Thus, the proceedings initiated by the complainants in the present cases an the resultant actions including the orders passed by the Commission are ful saved.
Resultantly, we reject all the submissions advanced by the Appellan These appeals are accordingly dismissed affirming the view taken by th Commission. We quantify the costs at Rs. 50,000/- (Rupees Fifty Thousan only) to be paid by the Appellant in respect of each of the Consumer Case over and above the amounts directed to be made over to the Complainan and shall form part of the amount payable by the Appellant to th Complainants.
All the Complainants are entitled to execute the orders passed by th Commission in their favour, in accordance with law."
Respectfully following the ratio of the Judgment passed by the Hon'ble Supreme Court in th case of M/s. Imperia Structures Ltd. (supra) , we partly allow all the Consumer Complaints an direct the Opposite Party Developer to refund the entire amounts deposited by the Complainants the aforesaid Complaints alongwith simple interest @9% p.a. from the respective dates of deposits ti the date of actual payment together with costs of 50,000/- to be paid to the each of the Complainant within a period of six weeks from the date of passing of this order failing amount the amount sha attract interest @ 12% p.a. for the same period.
The Consumer Complaints are allowed in above terms. The pending applications, if any, als stand disposed of.