National Consumer Disputes Redressal
Rahul Om Arora vs M/S. Orris Infrastructure Private ... on 28 August, 2020
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 977 OF 2018 1. RAHUL OM ARORA 22/5, MADAN MOHAN MALVIYA MARG, LUCKNOW-226001 UTTAR PRADESH ...........Complainant(s) Versus 1. M/S. ORRIS INFRASTRUCTURE PRIVATE LIMITED & ANR. D-5, MAHAVIR ENCLAVE, NEW DELHI-110045 2. THREE C SHELTERS PRIVATE LIMITED C-23, GREATER KAILASH ENCLAVE,
PART-I, NEW DELHI-110048 ...........Opp.Party(s)
BEFORE: HON'BLE MR. PREM NARAIN,PRESIDING MEMBER
For the Complainant : Mr. Sahil Sethi, Advocate with
Mr. Shivam Sharma, Advocate For the Opp.Party : For OP No.1 : Mr. Anurag, Proxy counsel for
Mr. Pankaj Vivek, Advocate
For OP No.2 : Ms. Ruchika Jain, Advocate
Dated : 28 Aug 2020 ORDER
This consumer complaint has been filed by the complainant Rahul Om Arora against the opposite parties M/s. Orris Infrastructure Private Limited and anr.
2. Brief facts of the case are that the complainant was allotted vide allotment letter 28.08.2012 an apartment No.604, Tower No.14, in the opposite parties project 'Greenopolis', Sector 89, Gurgaon for a total consideration of Rs.1,07,92,880/-. As per the ledger dated 22.03.2018, the complainant has paid a sum of Rs.77,57,892/- to Three C Shelters (OP2) towards the sale consideration and the last installment was paid on 08.07.2015. As per clause 5.1 of the Apartment Buyer Agreement executed on 24.5.2013, the opposite parties promised to handover the complete possession of the apartment within 36 months with a grace period of 6 months from the date of the allotment of the apartment i.e. by 27.02.2016. However, the possession has not been handed over to the complainant as the building itself is not complete. Accordingly, the complaint has been filed for a refund of the paid amount. The main prayers made in the complaint are as under:-
(i) To direct OP to refund the entire amount paid by the complainant with 18% p.a. penal interest from the date of deposit.
(ii) To direct OP to pay compensation of Rs.25,00,000/- & Rs. 5,00,000/- towards litigation costs.
3. The complaint has been resisted by the opposite parties by filing the written statement. It has been stated that the delay has happened on account of force majeure conditions which were beyond the control of the OPs. Both parties have filed their evidence by way of affidavits which have been taken on record.
4. Heard the learned counsel for the parties and perused the record. Learned counsel for the complainant stated that similar complaints have already been decided against the same opposite parties and therefore, these are covered cases under the judgments already passed by this Commission. Learned counsel referred to the judgment of this Commission in Atma Krishna Vs. Orris Infrastructure Pvt. Ltd. &anr. CC No.1590 of 2016 decided on 21.12.2018 (NC) where this Commission has allowed the refund of the deposited amount along with 10% p.a. interest from the date of respective deposits. Learned counsel for the complainants requested that this consumer complaint be also allowed on the same lines as of Atma Krishna Vs. Orris Infrastructure Pvt. Ltd. &anr. (supra).
5. Learned counsel for the complainant further stated that all the objections raised by the opposite parties have already been discussed in detail and have been decided in the aforesaid consumer complaint. Learned counsel for the complainant further stated that in the present consumer complaint, the payment has been made to the opposite party Three C Shelters Pvt. Ltd. and therefore, if the refund is ordered, they should be responsible for refund of the amount. In this complaint, the possession was due by 27.02.2016, however, even the construction is not complete and therefore, there is no question of giving any possession by the opposite parties. The learned counsel mentioned that in this case, the possession has not been offered till date. Hence, refund has been requested. The learned counsel further stated that all the objections raised by the opposite parties have been discussed in detail and decided by this Commission in Atma Krishna Vs. Orris Infrastructure Pvt. Ltd. &anr. (supra), therefore, arguments are not repeated.
6. Learned counsel for the complainant further stated that the plea taken by the OPs in respect of the force majeure conditions is not valid. First of all, the order of the Hon'ble High Court referred to by the OPs was only in respect of not drawing the ground water. The High Court order does not put ban on the construction activity nor any ban on use of water. The OPs should have brought water from outside and should have used the same for construction activity. Thus, this order of the Hon'ble High Court cannot be treated as force majeure condition. Obviously, the OPs should have taken remedial measures. Once the apartment buyer agreement is signed between the parties, the OPs have to keep in mind the adverse situations that may arise and they should be ready to counter those conditions so that complainants need not suffer for the same. In support of his argument, the learned counsel referred to the judgment in M/s. IREO FiveriverPVt. Ltd. vs. Surinder Kumar Singla and another, FA No.1358 of 2016, decided on 29.11.2016 by this Commission, wherein it has been observed:
"14. We have considered the rival contentions and perused the record. On careful consideration of record, we do not find merit in the contention of the appellant. In our considered view, the protection of Force Majeure clause in the agreement between the parties is not available to the appellant builder for the reason that it is the stand of the appellant that vide letter dated 16.03.2011, DTCP Haryana had directed the appellant not to carry out any earth work or construction work at the subject site without obtaining no objection certificate from the Irrigation Department Haryana. It is also admitted case of the appellant that ultimate clearance for undertaking construction work was received vide letter dated 24.04.2015 of National Board of Wild Life granting clearance for the development project. Despite of the aforesaid restraint on the appellant for carrying out development work, admittedly, the appellant executed Plot Buyer's agreement with the respective complainants during the period 23.06.2011 to 23.04.2012. It is not the case of the appellant that while entering into the agreement, the appellant disclosed about the restraint letter dated 16.03.2011 issued by DTCP Haryana. Thus, it is clear that appellant by concealment of material fact defrauded the respondents / complainants to execute the agreement contained Force Majeure clause, which in our considered opinion is unfair practice amounting to deficiency in service. As the agreement containing Force Majeure clause has been executed by concealment of material fact on the part of the opposite party, the aforesaid agreement is not binding on the complainants. Thus, appellant cannot take benefit of said clause. In view of the discussion above we do not find fault with finding of State Commission holding the appellant to be guilty of deficiency in service and directed the appellant to refund the money paid by the respective complainants with 12% interest besides payment of compensation and litigation expenses."
7. On the other hand, learned counsel for Orris Infrastructure Pvt. Ltd. stated that Orris Infrastructure Pvt. Ltd. is only the land owner and the Three C Shelters Pvt. Ltd. is the developer. There is a development agreement between these two parties and this was in the knowledge of complainants. As per this development agreement, 35% units are to be sold by Orris Infrastructure Pvt. Ltd. and 65% units are to be sold by Three C Shelters Pvt. Ltd. In this background, it is to be considered that the project has been delayed by Three C Shelters Pvt. Ltd. and therefore, Orris Infrastructure Pvt. Ltd. is not responsible for paying any compensation for the delay in handing over the possession.
8. The learned counsel for the opposite party no.2 stated that the arguments of the opposite parties are same as were advanced in Atma Krishna Vs. Orris Infrastructure Pvt. Ltd. &anr. (supra), however, the learned counsel emphasized on the following points:-
(i) It is accepted that there has been a delay in the project, however, the matter has now been taken cognizance of by the Real Estate Regulatory Authority, Haryana (RERA,Haryana). The RERA Haryana had convened a meeting on 7.9.2018 where MDs of Orris Infrastructure Pvt. Ltd. and Three C Shelters Pvt. Ltd. participated and it has been decided that the construction will be completed by 30.9.2020. The property in question is likely to be ready by that time and opposite parties will be in a position by that time to give possession.
(ii) Coming to the force majeure conditions, it was stated that vide order dated 31.7.2012, Hon'ble High Court of Punjab and Haryana in "Sunil Singh Vs. Ministry of Environment & Forests parayavaran" which was numbered as CWP-20032-2008 imposed a blanket ban on the use of ground water in the region of Gurgaon and adjoining areas for the purposes of construction. In the light of force majeure conditions, no compensation is payable according to clause 5.2 of the apartment buyer agreement. The delay has occurred due to conditions prevailing which were beyond the control of the OPs.
(iii) A consumer forum is authorized to order compensation as per Section 14(i)(d) of the Consumer Protection Act, 1986 and the compensation has to be based on the loss or injury suffered by complainant due to negligence of the OPs. In the present case, no loss has been suffered by the complainants as no proof has been filed by the complainants whether they have suffered any loss due to payment of any rent or any such other thing.
9. I have carefully considered the arguments advanced by the learned counsel for the parties and have examined the material on record.
10. Clearly the OPs have not been able to complete the project in time and to deliver the possession of property in question to the complainant in time as per the allotment letter or the Apartment Buyer Agreement. It is now clearly established that the allottee has right to ask refund if the possession is inordinately delayed and particularly beyond one year. In the present case, the project is not yet complete though the possession was to be given in the year, 2016. The OPs have taken the defence of force majeure conditions for delay including the order of the Hon'ble High Court of Punjab and Haryana in "Sunil Singh Vs. Ministry of Environment & Forests Parayavaran (supra) wherein the use of ground water was restricted and OPs had to bring water from outside. Clearly, there was no ban on construction and OPs should have put their resources and managerial skills to bring water from outside and to complete the construction in time. On the one hand, learned counsel for Three C Shelters Pvt. Ltd. has pleaded force majeure conditions for delay and on the other hand, Orris Infrastructure Pvt. Ltd. has pleaded that Three C Shelters Pvt. Ltd. is responsible for delay in construction. Clearly it was a joint project of Orris Infrastructure Pvt. Ltd. and Three C Shelters Pvt. Ltd. as both of them have signed the Apartment Buyer Agreement, therefore, both are responsible for delay. However, in case where refund has been sought, the opposite party that has taken the money from the allottee, will be liable to refund if ordered.
11. As Three C Shelters Pvt. Ltd. has received all the amount paid by the complainant, Three C Shelters Pvt. Ltd. would be liable to refund the same to the complainant. Recently, Hon'ble Supreme Court in Kolkata West International Pvt. Ltd. Vs. Deva Asis Rudra, II (2019) CPJ 29 (SC) has reduced the interest from 12% p.a. awarded by this Commission on the amount of refund to 9% p.a. Hence, it will be appropriate to order refund of amounts along with 9% p.a. interest from the date of respective deposits.
12. So far as the question of forfeiture of earnest money is concerned, it is seen that the complainant is seeking refund as the project has been inordinately delayed. Even though the RERA, Haryana has taken a meeting to expedite the project and Three C Shelters Pvt. Ltd. has agreed to complete the project in phases, it is seen in the same proceedings that the following has also been observed:
"7. The license holder and developer have entered into an agreement without permission of the government/DTCP Haryana which may attract action against the license holder as well as against the developer which finally in turn will affect the interest of the allottees. BIP permission is necessarily and legally required to regularize the already entered agreement by the developer and license holder. License holder shall apply for BIP in favour of 3C Shelters Pvt. Ltd. with DTCP Haryana, preferably within a month. The fee for BIP shall be paid to the government for which the drafts shall be made by the developer 3C Shelters Pvt. Ltd. preferably within a month and thereafter within three days of getting the draft the licensee shall apply for the BIP and pursue with the Government for issuance of the same well in time."
13. From the above, it is clear that Orris Infrastructure Pvt. Ltd. and Three C Shelters Pvt. Ltd. have not entered into the agreement as per provisions of law and accordingly, the Development Agreement itself becomes questionable and without any basis. Though this ground has not been taken by the complainant for seeking refund, however this is also a valid ground for the complainant for seeking refund. If there is uncertainty in the development agreement itself as entered between Orris Infrastructure Pvt. Ltd. and Three C Shelters Pvt. Ltd., no allottee would like to block his capital with these opposite parties.
14. This Commission has recently decided similar cases against the same OPs where the money was paid by the allottees to Three C Shelter Pvt. Ltd. These cases have been decided as bunch matters in CC 2781 of 2017, Nitin Gupta Vs. Three C Shelters Pvt. Ltd. decided on 20.7.2020 and the amounts paid by the allottees have been refunded alongwith interest @9% per annum from the date of respective deposits till realisation.
15. Based on the above discussion, the complaint is allowed and following order is passed:-
ORDER
Opposite party Three C. Shelters Pvt. Ltd. shall refund the amount of Rs.77,57,892/- along with interest @ 9% p.a. from the date of respective deposits till actual payment to the complainant. This order be complied with within a period of 45 days from the date of receipt of this order. Opposite party Three C. Shelters Pvt. Ltd. shall also pay Rs.10,000/- to the complainant as cost of litigation.
...................... PREM NARAIN PRESIDING MEMBER