National Consumer Disputes Redressal
Sunita Rani & Anr. vs M/S. Chd Developers & Anr. on 28 February, 2022
Author: R.K. Agrawal
Bench: R.K. Agrawal
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 1287 OF 2019 1. VARUN SINGH & ANR. ...........Complainant(s) Versus 1. M/S. CHD DEVELOPERS & ANR. HAVING ITS REGISTERED OFFICE AT 702, 7TH FLOOR, TOWER A, EMMAR DIGITAL GREENS, SECTOR 61, GOLF COURSE, EXTENSION ROAD, GURUGRAM-122102 2. GAURAV MITTAL HAVING ITS REGISTERED OFFICE AT 2301, RADHA CHAMBERS , PLOT 19-20, G BLOCK, COMMUNITY CENTRE, VIKASPURI, WEST DELHI NEW DELHI-110018 3. M/S CHD DEVELOPERS 702, TOWER A EMAAR DIGITAL GREENS SECTOR-61, GOLF COURSE EXTENSION ROAD, GURUGRAM-122011 ...........Opp.Party(s) CONSUMER CASE NO. 1288 OF 2019 1. SUNITA RANI & ANR. ...........Complainant(s) Versus 1. M/S. CHD DEVELOPERS & ANR. 702, 7TH FLOOR, TOWER A, EMMAR DIGITAL GREENS, SECTOR 61, GOLF COURSE, EXTENSION ROAD, GURUGRAM-122102 ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT HON'BLE MR. BINOY KUMAR,MEMBER
For the Complainant : For the Complainant : Ms. Aditi Tuteja, Advocate For the Opp.Party : For the Opposite Parties : Ms. Ravi Agarwal, Advocate
Dated : 28 Feb 2022 ORDER
The present Consumer Complaints have been filed under Section 12(1)(a) of the Consumer Protection Act, 1986 (for short "the Act") against Opposite Party No.1, M/s. CHD Developers (hereinafter referred to as Builder), Opposite Party No. 2, Mr. Gaurav Mittal, Director of the Opposite Party No. 1, by the Complainants / Allottees of Residential Flats in a Group Housing Project, namely, "106 Golf Avenue" (for short "the Project"), to be developed and constructed by the OP Builder in Sector 106, Gurgaon, Haryana, seeking refund and compensation for the losses suffered by them on account of Unfair and Restrictive Trade Practices adopted and the deficient services rendered by the Opposite Party in not handing over the possession of the allotted Flats/Apartments within the stipulated time.
Since both the Complainants have entered into identical "Agreements to Sell' with the Opposite Party; the facts and question of law involved in their cases are similar, inasmuch as physical possession of the allotted Flats, has not been handed over within the committed period and almost similar reliefs have been prayed for by both the Complainants, both these Consumer Complaints being disposed off through this common Order. However, for the sake of convenience, CC No. 1287 / 2019 is treated as the lead case and the facts enumerated hereinafter are taken from it.
According to the Complainant, facts of the case are that allured by the advertisements and the various lucrative representations made by the Officials and Brokers of the Opposite Party Builder that the Flats in the Project will be delivered within a period of 42 months, the Complainants applied on 02.11.2015 for allotment of an Apartment in the Group Housing Scheme launched by M/s CHD Developers Ltd., known as "106 Golf Avenue" in Sector 106, Gurgaon, Haryana. The Complainants were allotted 3 BHK Flat No. 106-T01-17/04 in the Project vide allotment letter dated 2.11.2015. Apartment Buyer's Agreement was executed between the Parties on 05.11.2015. The total sale consideration payable by the Complainant was ₹1,40,22,475/-. The Complainants opted for subvention scheme. The Complainants paid a sum of ₹13,55,582/- to the OP Builder on 2.11.2015 and paid another sum of ₹1,04,39,410/- on 21.12.2015 after getting loan from the HDFC Bank Ltd. Under the subvention scheme, the OP Builder was to bear the payment of interest and other charges till the date of actual possession. It is stated that as per Clause 13 of the Buyer's Agreement, the possession of the Flat would be delivered by 05.05.2019 that is within 42 months from the date of signing of the Agreement. Despite receiving a huge sum of ₹1,17,94,892/-, i.e., 85% of the sale consideration, the OP Builder neither delivered the possession of the Flat within stipulated period nor did it pay the interest as per Subvention Scheme till the date of possession, which adversely affected the Cibil rating of the Complainants. On several occasions, the Complainant visited the construction site but was shocked to find out that the construction was never in progress and no one was present at the site to answer the queries of the Complainant. The site was looking an abandoned piece of land with only a skeleton structure of semi constructed building. It is pleaded that as per Clause 13 of the Buyer's Agreement, it was agreed by the Opposite Party that in case they are not able to hand over the possession to the Complainant within the grace period of six months, the Opposite Party shall pay to the Complainant compensation, at the rate of ₹10/-per sq. ft. per month the for the period of delay and if the said amount is calculated in terms of financial charges, it comes to approximately @ 1.4% p.a only. It is alleged that the Opposite Party has found a cheap source of funding the commercial Projects from the hard earned savings and borrowed money of innocent Apartment Buyers. Further, as per Clause 8, of the Buyer's Agreement, if there is any amount due from the Complainant, the Opposite Party would charge interest @ 18% p.a. on the said amount. The Opposite Party has collected the substantial amount for providing the common areas, parks, roads, boundary wall, security gates, generator sets, parking etc. in advance. No reason has been communicated to the Complainants despite repeated requests about the status of Construction and the Opposite Party is not in a position to give the committed date of handing over of possession.
Alleging deficiency in service and unfair trade practice on the part of the OP Builder, the Complainants has filed the present Complaint with following prayer:-
"a) Direct the Opposite Parties to complete the construction of the project and handover possession of the respective Unit to the complainants of the said Project by or before the conclusion of the resent proceedings before this Hon'ble Commission alongwith interest @ 18 per annum from date of respective due date of possession till date of actual possession; or.
b) In the alternative, direct the Respondents to refund the entire consideration amount paid by the Complainant of the said Project to the respective Allottee, alongwith interest @ 18% per annum from the date of respective payments till its actual realization; and.
c) Direct the Opposite Parties to pay an amount of ₹20,00,000.00 (Ruppees Twenty Lacs only) to complainants of the said Project for mental agony, anguish and harassment suffered by the Allottees, including but not limited to the Complainants on account of the gross breaches committed by the Respondents herein; and.
d) Award legal cost of ₹2,00,000.00 (Rupees Two Lacs Only) for filing and prosecuting the resent complaint;
e) Pass such other of further order(s) as this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case."
We have heard Ms. Aditi Tuteja, learned Counsel for the Complainants, Mr. Ravi Agarwal, learned Counsel for the Opposite Party Builder and perused Complaints, Written Statements and given a thoughtful consideration to the various pleas raised by them.
The defence taken by the Opposite Party Builder have been dealt in detail and rejected by this Commission vide Order dated 26.11.2019 passed in CC No. 3775 / 2017 entitled 'Rajnish Bhardwaj vs. M/s. CHD Developers Ltd.' and other connected matters, by observing as under:-
"13. The first contention of the Learned Counsel for the Opposite Party that the Complainants are not "Consumers" and only "investors" is not supported by any documentary evidence. In a catena of judgments, this Commission has laid down that the onus of proof shifts to the Opposite Party to prove that the Complainant is "investor" and it is observed that the Opposite Party did not discharge their onus of proof regarding this aspect. Hence, we are of the considered view that the Complainants are "Consumers" as defined under Section 2 (1) (d) of the Consumer Protection Act, 1986.
14. With regard to the second contention of the Learned Counsel for the Opposite Party that this Commission does not have pecuniary Jurisdiction to entertain the Complaints as the claims made by some of the Complainants are inflated, a larger Bench of this Commission in the case of "Ambrish Kumar Shukla & Ors. Vs. Ferrous Infrastructure Private Limited - I (2017) CPJ 1 NC" has decided this issue and held that pecuniary Jurisdiction should be construed considering the total value and goods and services in addition to the compensation prayed for. The Complainants in the present Complaints, have sought refund of the amount paid along with damages by way of interest @ 18% p.a., compensation of ₹5,00,000/- and other reliefs which total goes beyond One Crore and definitely comes within the pecuniary Jurisdiction of this Commission. Hence, this contention of the Opposite Party is also rejected.
15. So far as the issue raised by the Opposite Party that the Complainants are not the original allottees of the flat and resale of flat does not come within the purview of this Act, is concerned, in our view, having issued the Re-allotment letters on transfer of the allotted Unit and endorsing the Apartment Buyer's Agreement in favour of the Complainants, this plea does not hold any water.
16. As far as the contention of the Opposite Party that the Complainants did not adhere to the payment schedule and defaulted in making payments is concerned, the said default was condoned by the Opposite Party by charging interest from them. Having charged interest for the said delay and having condoned the default instead of cancelling the allotment, the Opposite Party, in our view, cannot deny refund with compensation on account of the aforesaid condoned defaults. Even if, some of the Complainants have defaulted in making the payments to the Opposite Party, the Complainants who admittedly did not commit any default cannot be penalized for the default on the part of the other buyers. This is more so when there is delay in completing the construction and handing over the physical possession.
17. The stand taken by the Opposite Party that the period of delivery of possession in 42 months as defined in Clause 13 of the Apartment Buyer's Agreement is not sacrosanct as it is stated in the said Clause that the "physical possession of the said Apartment is proposed to be delivered by the Company to the allottee within 42 months from the date of execution of the Agreement" and, therefore, time is not the essence of the contract and the delay is attributable to Force Majeure events, and, therefore, no deficiency of service can be attributed to them, is totally unsustainable, as the Opposite Party could not establish by means of any documentary evidence that the Project was delayed due to Force Majeure events. It is stated by the Opposite Party that the construction work was stopped during the period from May 2015 to August 2015, i.e. only four months, due to a letter received from the Haryana State Pollution Control Board informing them that the Hon'ble National Green Tribunal has passed an order taking serious view regarding pollution emanating from construction and other allied activities due to dust emission. Except this, no other ground has been taken by the Opposite Party for delay in construction and in our view such a ground cannot be termed, by any stretch of imagination to be a "force majeure event".
18. As per the Apartment Buyer's Agreement which were executed between December 2012 to March 2013 in these Complaints, the possession of the allotted Units, complete in all respect, was promised to be delivered within 42 months from the date of execution of the respective Agreement with the grace period of six months i.e. in any case in March 2017. However, the Complainants are still waiting for possession. If a Builder/Developer fails to deliver possession of the flat/apartment booked with them, within the time period committed for this purpose and has failed to file documentary evidence to justify the delay in construction or handing over the possession, this, in our opinion, would tantamount to a defect or deficiency in the services rendered by them to the buyers and in such a situation, this Commission exercising the powers conferred upon it by the Act, would be competent to direct refund of the amount paid by the buyers to the Builder, along with appropriate compensation for the loss or injury suffered by the buyers on account of delayed possession.
19. The Complainants are not willing to take possession of the allotted Units as according to them, there is no possibility of completion of the project in the near future. Even the Haryana Real Estate Regulatory Authority has granted the Registration Certificate to the Opposite Party valid upto 30.06.2021 to complete the Project. In the case of Emmar MGF Land Ltd. & Ors. vs. Amit Puri - [II (2015) CPJ 568 NC], this Commission has held that after the promised date of delivery, it is the discretion of the Complainant whether to accept the offer of possession, if any, or to seek refund of the amounts paid by him with some reasonable compensation and it is well within his right to seek for refund of the principal amount with interest and compensation as the construction is still not complete. In the matter of Mrs. Anila Jain Vs. Emaar MGF Land Ltd. - Consumer Complaint No. 2208 of 2017 decided on 11.11.2019, the Coordinate Bench of this Commission confirming the said view of the Commission has observed as under:-
"In any case, the complainant cannot be compelled to accept possession when it is offered after such a long period of say at least three years from the timeline stipulated for this purpose, in the agreement executed between the parties. A reference in this regard can be made to the decision of the Hon'ble Supreme Court in Civil Appeal No. 12238 of 2018 Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan & Connected Matter decided on 02.04.2019 and the decision of the Hon'ble Supreme Court in Civil Appeal No. 3182 of 2019 Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra decided on 25.03.2019, in support of his contention that in a case of an unreasonable delay in offering possession of the allotted flat, the consumer cannot be compelled to accept possession at a belated stage and is entitled to seek refund of the amount paid by him to the builder with compensation.
20. The Hon'ble Apex Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, - II (2019) CPJ 34 (SC), has observed as follows:-
"6.7. A terms of a contract will not be final and binding if it is shown that the flat purchasers had no option but to sign on the dotted line, on a contract framed by the builder. The contractual terms of the Agreement dated 08.05.2012 are ex-facie one sided, unfair and unreasonable. The incorporation of such one-sided clauses in an agreement constitutes 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 the flats by the Builder.
7. In view of the above discussion, we have no hesitation in holding that the terms of the Apartment Buyer's Agreement dated 08.05.2012 were wholly one-sided and unfair to the Respondent-Flat Purchaser. The Appellant-Builder cannot seek to bind the Respondent with such one-sided contractual terms."
21. Further, in the case of Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra - II (2019) CPJ 29 SC, the Hon'ble Apex Court has observed as under :-
".....It would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession. By 2016, nearly seven years had elapsed from the date of the agreement. Even according to the developer, the completion certificate was received on 29 March 2016. This was nearly seven years after the extended date for the handing over of possession prescribed by the agreement. A buyer can be expected to wait for possession for a reasonable period. A period of seven years in beyond what is reasonable. Hence, it would have been manifestly unfair to non-suit the buyer merely on the basis of the first prayer in the reliefs sought before the SCDRC. There was in any event a prayer for refund.
In the circumstances, we are of the view that the orders passed by the SCDRC and by the NCDRC for refund of moneys were justified."
22. For the reasons stated above, we are of the opinion that in the present case also, the Complainants cannot be asked to wait indefinitely for the delivery of possession in the absence of a committed date and the act of the Opposite Party in relying on Force Majeure clause while enjoying the hard earned money of the Complainants for a long period of about seven years without any valid reason, is not only an act of deficiency of service but also amounts to Unfair Trade Practice, more pertinently when the Opposite Party charge interest @ 18% p.a. for any delay in the payments on the part of Buyers and offers compensation only of ₹10/- per Sq. Ft. per month for the period of delayed possession, which comes to approximately 1.4% p.a. Undisputedly, such terms in Clauses are extremely unfair and one sided and fall within the definition of 'Unfair Trade Practice' as defined under Section 2(r) of the Act.
23. It is trite that although the word 'Compensation' is not defined in the Act, but it is of very wide connotation. It not only constitutes actual loss or expected loss, it may extend to mental or even emotional sufferings. In Lucknow Development Authority v. M.K. Gupta - (1994) 1 SCC 243, explaining the width and scope of the powers invested in the Consumer Fora under the Act, the Hon'ble Supreme Court has observed that the Commission has been vested with jurisdiction to award value of goods or services and determine compensation for any loss or damage suffered by a consumer, which in law is otherwise included in the wide meaning of compensation. The Consumer Fora is entitled to award not only the value of the goods or services but also to compensate a Consumer for the injustice suffered by him due to deficiency in service in sale of goods or rendering of service, as the case may be."
In addition to above, Mr. Ravi Agarwal, learned Counsel for the Opposite Party Builder submitted that the Complainants have opted for subvention scheme and the OP Builder had made payments of ₹82,375/- on 04.05.2017, 02.06.2017, 30.06.2017, 31.08.2017 and 10.11.2017 towards Pre-EMI amount directly to the HDFC Bank from which the Complainants had obtained loan.
In the present cases also the Complainants cannot be asked to wait indefinitely for the delivery of possession in the absence of a committed date and the act of the Opposite Party in relying on Force Majeure clause while enjoying the hard earned money of the Complainants for a long period of about seven years without any valid reason, is not only an act of deficiency of service but also amounts to Unfair Trade Practice in view of the principle laid down by the Hon'ble Supreme Court in "Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, II (2019) CPJ 29 (SC)", more pertinently when the Opposite Party charge interest @ 18% p.a. for any delay in the payments on the part of Buyers and offers compensation only of ₹10/- per Sq. Ft. per month for the period of delayed possession, which comes to approximately 1.4% p.a. Undisputedly, such terms in Clauses are extremely unfair and one sided and fall within the definition of 'Unfair Trade Practice' as defined under Section 2(r) of the Act as has been held by the Hon'ble Surpeme Court in 'Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, II (2019) CPJ 34 (SC)'. In view of above, we are of the considered view that the Complainants are entitled for refund of the entire amount alongwith compensation.
As far as the contention of Mr. Ravi Agarwal, learned Counsel for the Opposite Party Builder that they had made payments of Pre-EMI amount to the HDFC Bank from which the Complainants had obtained loan is concerned, we observe that the Complainants shall be entitled for refund of the entire amount alongwith compensation after deduction of the pre-emi amount paid by the OP Builder.
Now coming to the compensation, we observe that in view of the recent Judgments passed by the Hon'ble Supreme Court, the compensation in the form of simple interest @ 9% p.a. alongwith cost of ₹25,000/- would meet the ends of justice.
Consequently, the Opposite Party Builder is directed to refund the entire amount alongwith interest @9% p.a. from the respective dates of deposit till the date of payment, after deducting the Pre-Emi amounts paid by it, to the Complainants within four weeks from today. The OP Builder shall also pay cost of ₹25,000/- to the Complainants in each case.
The Consumer Complaints stand partly allowed in above terms. The pending application, if any, also stands disposed off.
......................J R.K. AGRAWAL PRESIDENT ...................... BINOY KUMAR MEMBER