National Consumer Disputes Redressal
Kamini Devi Saxena vs M/S. Sunworld Residency Private ... on 27 March, 2023
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 2772 OF 2018 1. KAMINI DEVI SAXENA ...........Complainant(s) Versus 1. M/S. SUNWORLD RESIDENCY PRIVATE LIMITED & 3 ORS. R/o 117, Hans BHawan, 1 Bahadur Shah Zafar Marg, New Delhi - 110002 2. ICICI Bank Ltd. # ICICI Bank Towers, Bandra Kurla Complex, Mumbai - 400051 MAHARASHTRA 3. ICICI Securities Ltd. R/o ICICI Centre, H.T. Parekh Marg, Churchgate, Mumbai - 400020 4. ICICI Home Finance Co. Ltd. # ICICI Bank Towers, Bandra Kurla Complex, Mumbai - 400020 ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE RAM SURAT RAM MAURYA,PRESIDING MEMBER
For the Complainant : Mr. Sridhran, Advocate For the Opp.Party : For Opposite Party-1 : Mr. Anshum Jain, Advocate
For Opposite Party-2 : Mr. Anand Shankar Jha, Advocate
For Opposite Party-3 : Mr. M.D. Zaryab J. Rizvi, Advocate
Dated : 27 Mar 2023 ORDER
1. Heard Mr. Sridhran, Advocate, for the complainant, Mr. Anshum Jain, Advocate, for opposite party-1, Mr. Anand Shankar Jha, Advocate, for opposite party-2 and Mr. M.D. Zaryab J. Rizvi, Advocate, for opposite party-3.
2. Mrs. Kamini Devi Saxena has filed above complaint for directing opposite party-1 to (i) refund the principal amount, including Pre-EMI paid till settlement, with interest @18% per annum from the date of payment till realisation; (ii) pay Rs.1000000/-, as compensation for mental agony and harassment; (iii) pay Rs.50000/-, as litigation expenses; and (iv) any other relief which is deemed fit and proper in the facts and circumstances of the case.
3. The complainant stated that M/s. Sunworld Residency Private Limited (opposite party-1) was a company, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing project. Opposite party-1 launched a group housing project, in the name of "Sunworld Arista", at GH-1C, Sector-168, Noida, District Gautam Budh Nagar, in the year 2012 and made wide publicity of its facilities and amenities. When the complainant inquired from opposite party-1 about the period for handing over possession, she was informed that possession would be handed over within 24 months from the agreement. Believing upon the representations of opposite party-1, the complainant booked a flat in the aforesaid project and deposited booking amount of Rs.1308000/- through cheque dated 20.02.2015. Opposite party-1 allotted Apartment No. T-1/1503, 15th Floor, super area of 2100 sq.ft. total consideration of Rs.13086483/- on 12.03.2015 and executed Flat Buyer's Agreement on 18.03.2015. Payment plan was subvention plan, in which, the complainant was required to pay 10% of total consideration, 75% had to be advanced by opposite party-2 and 15% was payable on offer of possession. Opposite party-1, vide supplementary agreement dated 18.03.2015, agreed to pay Pre-EMI for a period 24 months from the date of disbursement of the loan and also agreed to buy back, after 24 months, if desired by the complainant. A Tripartite Housing Loan Agreement was executed on 18.03.2015, between the complainant, opposite party-1 and opposite party-2, for sanction of the loan. Thereafter, opposite party-2 directly disbursed Rs.97.90/- lacs to opposite party-1 on 25.03.2015. In the end of December, 2016, the complainant found that the construction was far away from completion. The complainant, vide email dated 25.12.2016, informed opposite party-1 to buy back her flat and redeem her money. Opposite party-1 did not respond. Opposite party-1 stopped payment of Pre-EMI from April, 2017. The bank started realizing EMI from the complainant from May, 2017. Opposite party-1, vide letter dated 07.04.2017, informed that delivery of possession would be started after one year. The complainant gave legal notice dated 03.01.2018 to opposite party-1 to buy back the apartment and redeem her money. In spite of service of the notice, opposite party-1 did not respond. Opposite party-2 advanced 75% of consideration to opposite party-1 at initial stage in violation of circular of Reserve Bank of India dated 03.09.2013. The complainant filed CC/2547/2018, which was listed on 05.11.2018. The counsel for the complainant requested to take up this complaint along with CC/374/2018, CC/375/2018 and CC/376/2018, which were listed on 06.11.2018. CC/2547/2018 was dismissed on 06.11.2018 on the ground that the complaint was not maintainable under Section 12(1)(c) of Consumer Protection Act, 1986. Then this complaint was filed on 20.12.2018.
4. The opposite party-1 filed its written reply on 10.01.2020, in which, booking of the flat by the complainant, allotment of the flat to her, execution of Flat Buyers' Agreement, Supplementary Agreement, Tripartite Agreement and payments made by her, have not been disputed. Opposite party-1 stated that the complainant filed CC/2547/2018 on same allegations, which was dismissed on 06.11.2018 along with CC/749/2018 without giving liberty to file fresh complaint as such present complaint is not maintainable. The complaint has been filed to enforce "buy back agreement" dated 18.03.2015, which shows that the complainant was an investor and not a consumer and transaction was a commercial transaction. The complaint raises complicated issue of fact, which cannot be decided in summary proceeding. Section-79 of Real Estate (Regulation and Development) Act, 2016 bars jurisdiction of this Commission. After constitution of U.P. RERA authority, the project was registered with it. Clause-72 of FBA proves for referring the dispute to an Arbitrator. The construction was delayed for force majeure reasons, i.e. (i) ban was imposed by National Green Tribunal on use of ground water for construction work due to which the builder has to arrange water from alternate source, which required carriage of water in tanker, (ii) Strike of supplier of building materials, which created shortage of building materials, (iii) demonetization of currency notes of rupees 500 and 1000 by Government of India (iv) paucity of labourers and the opposite party is entitled for extension of period under Clause-26 of the agreement. Opposite party-1 has completed construction of Tower-1, in which, the complainant was allotted flat and applied for issue of "completion certificate". Statutory authority however delayed issue of "completion certificate". The project was a big project and opposite party-1 has completed construction of Towers-2, 3, 4 and 10 and "completion certificate" was also issued. Interest of the buyer has been protected under clause-28 of the agreement, which provides for compensation for delay. It has been denied that opposite party-1 has committed unfair trade practice or there was deficiency in service. The complaint is liable to be dismissed.
5. Opposite party-2 filed its written reply on 28.01.2020 and stated the complainant and her spouse Anish Kumar Saxena approached ICICI Bank for home loan. On the basis of the papers submitted by them, the loan was sanctioned. The loan was disbursed under Tripartite Housing Loan Agreement was executed on 18.03.2015 and Facility Agreement dated 21.03.2015 between the parties, under which, the complainant is liable to pay EMI/repay the loan and the complainant was regularly depositing EMI.
6. Opposite party-3 filed its written reply on 24.06.2019 and stated that it was a registered Stock Broker and offers broking services to its clients. Opposite paty-3 informed the complainant and other customers about "subvention" scheme of opposite party-1 and 2. Thereafter, the complainant directly contacted them. Subsequent transactions were done between them. In the complainant, there is no allegation against opposite party-3 and it has been wrongly impleaded.
7. The complainant filed Rejoinder Replies, Affidavit of Evidence of Kamini Devi Saxena and documentary evidence. Opposite party-1 filed Affidavit of Evidence of Ms. Deepali Saigal and documentary evidence. In this affidavit, Ms. Deepali Saigal has stated that "completion certificate" was applied on 30.12.2019. The project is complete with amenities and facilities. Opposite party-1 vide letter dated 22.07.2021, offered possession to the complainant and other home buyers. Around 250 home buyers have taken possession and more than 100 families are residing in their flats. The complainant did not turn up for taking possession. Opposite party-2 filed Affidavit of Evidence of Shashank Raj. Opposite party-3 filed Affidavit of Evidence of Najaf Rizvi. All the parties have filed their short synopsis.
8. I have considered the arguments of the counsel for the parties and examined the record. Preliminary issues raised by opposite party-1 that dismissal of CC/2547/2018 on 06.11.2018 will operate as res-judicata has no force. CC/2547/2018 was dismissed as permission under Section 12(1)(c) of Consumer Protection Act, 1986 was not granted. Nothing has been adjudicated in the main complaint. Supreme Court in Imperia Structures Ltd. Vs. Anil Patni, (2020) 10 SCC 783 and Ireo Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna, (2021) 3 SCC 241, held Section-79 of Real Estate (Regulation and Development) Act, 2016 does not bar jurisdiction of Consumer Commission. In Emaar MGF Land Limited Vs. Aftab Singh, (2019) 1 CPJ 5 (SC), held that arbitration clause or Arbitration and Conciliation Act, 1996 do not affect jurisdiction of Consumer Commission. Supplement agreement dated 18.03.2015 under which opposite party-1 gave a guarantee to "buy back", is merely an incentive and guarantee for timely possession. It is not main contract between the complainant and opposite party-1 for availing service of building construction. On its basis it cannot be said that transaction between them was a commercial transaction, while under Flat Buyer's Agreement, opposite party-1 agreed to provide service relating to building construction to the complainant.
9. In clause-25 of Flat Buyer's Agreement, period for delivery of possession is left blank. In such circumstance right of the complainant to claim "buy back" arose on 17.03.2017. The complainant, vide email dated 25.12.2016, cancelled Flat Buyer's Agreement and exercised her right and requested opposite party-1 to buy back her flat. Opposite party-1, however, vide email dated 07.04.2017 sought for consent for extension of period for further one year, which was never accepted by the complainant. Opposite party-1 took plea of force majeure events in completing the construction. So far as ban imposed by National Green Tribunal on use of ground water for construction work, it was imposed much before the agreement and cannot be treated as force majeure. Opposite party-1 has not adduced any evidence in respect of strike of supplier of building materials and paucity of labourers. Demonetization of currency notes of rupees 500 and 1000 by Government of India in November, 2016 affected the economy of the country for a period of 6 months. Till today, opposite party-1 could not obtained "completion certificate" although due date of possession expired on 17.03.2017. There is inordinate delay in handing over possession. It is well settled that a home buyer cannot be made to wait for possession for an unlimited period.
10. Payment plan was "subvention plan" in which, the complainant had made payment of Rs.1308000/- through cheque dated 20.02.2015 and ICICI Bank advanced Rs.97.90/- lacs to opposite party-1 on 25.03.2015, on which, opposite party-1 paid Pre-EMI till March, 2017. The complainant is paying EMI from May, 2017. From the date, the complainant is paying EMI on the loan amount, that date one month prior to it shall be treated as the date money advanced by the complainant i.e. 01.04.2017. In Experion Developers Private Limited Vs. Sushma Ashok Shiroor, 2022 SCC OnLine SC 416, held that 9% interest, in case of refund, is just compensation, which is restitutory and compensatory both.
ORDER
In the result, the complaint is partly allowed. The opposite party-1 is directed to refund entire amount deposited by the complainant with interest @9% per annum from the date of respective deposit till the date of refund, within a period of two months from the date of this judgment. It shall be open for opposite party-1 to satisfy the loan of ICICI Bank first and pay balance amount to the complainant.
......................J RAM SURAT RAM MAURYA PRESIDING MEMBER