National Consumer Disputes Redressal
Anurag Gupta vs M/S Ireo Grace Realtech Private Limited ... on 14 June, 2022
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 2257 OF 2018 1. ANURAG GUPTA R/o D-296, 1st Floor, Sarvodya Enclave, New Delhi - 110017 ...........Complainant(s) Versus 1. M/S IREO GRACE REALTECH PRIVATE LIMITED & 4 ORS. R/o C-4, Malviya Nagar, 1st Floor, New Delhi - 110017 2. M/S Precision Realtors(P) Ltd. R/o 305, Kanchan House, Karampura Commercial Complex, New Delhi - 110015 3. M/S Blue Planet Infra Developers (P) Ltd. R/o 40/16, East Patel Nagar, New Delhi - 110008 4. M/S Madeira Conbuild (P) Ltd. R/o 304, Kanchan House, 3rd Floor, Karampura commercial Complex, New Delhi - 110015 5. M/S Globle Estate R/o G-23, Ashok Vihar, Phase-I New Delhi - 110052 ...........Opp.Party(s)
BEFORE: HON'BLE MRS. JUSTICE DEEPA SHARMA,PRESIDING MEMBER HON'BLE MR. SUBHASH CHANDRA,MEMBER
For the Complainant : MR. DEEPAK KR. KHUSHALANI For the Opp.Party : Mr Sameer Chaudhary, Mr Rahul Ahuja,
Mr Gaurav Sharma, Mr Akarsh Sharma,
Advocates with Ms Ruchi Kumar Sr
Manager
Dated : 14 Jun 2022 ORDER
PER MR SUBHASH CHANDRA, MEMBER
1.This complaint is filed u/s 21 (a) (i) of the Consumer Protection Act, 1986 in respect of the flat booked by the complainant in a project promoted and developed by the opposite parties alleging deficiency in service and unfair trade practice resulting in delay in handing over possession of the flat and seeking refund of the amount deposited along with penal interest and other compensation.
2. The brief facts of the case are that the complainant had booked a flat in the project 'The Corridors' promoted and developed by the Opposite party viz. Ireo Grace Realtech Pvt. Ltd. located on Golf Course Extension Road, Sector 67 A, Gurgaon, Haryana on 02.03.2013 for his residential purpose and deposited Rs 17,00,000/- as earnest money with the opposite party. On subsequent dates further instalments were paid. An allotment letter was issued by the opposite party to the complainant on 07.08.2013 allotting flat no. CD-A4-11-1102 in Tower A 4, admeasuring 1726.91 sq ft for a total sale consideration of Rs. 1,84,44,568/-. The complainant deposited Rs. 1,83,55,760/- towards this flat by way of twelve instalments between May, 2013 and July, 2018. There was no default in payment according to the complainant. An Apartment Buyer's Agreement (in short 'the ABA') was entered into between the complainant and the opposite party on 02.06.2014. As per clause 13.3 of the ABA, the opposite party committed to offer possession of the flat within 42 months with an additional grace period of six months i.e. by 22.1.2017 failing which compensation at the rate of Rs.7.50 per sq foot was promised by the opposite party to the complainant. However, possession of the said flat was not offered by the opposite party till the date of filing of the present complaint. Hence, the complainant has approached this Commission alleging deficiency in service and unfair trade practice in not adhering to the committed date of handing over possession and imposing entirely one sided conditions in the ABA that are in favour of the opposite party which the complainant as a consumer was unable to contest and was compelled to accept.
3. In view of the demise of the original complainant during the pendency of these proceedings, his legal heirs were taken on record and are accordingly reflected in the memo of parties.
4. It is the complainant's case that the opposite party is guilty of having violated several conditions/assurances in the agreement with the complainant. The 90 metres link/approach road with 18 metres wide green belt had not been constructed; rather, the land acquisition for it had been 'stayed' by the Punjab & Haryana High Court as per a reply dated 04.01.14 obtained by him under the RTI Act; there was no collaboration agreement in place between opposite party no. 1 with OPs 2 to 5, as per a reply from the Haryana Development & Regulation of Areas Act, 1975 under the RTI Act, making the launch of the project resultantly premature and the Housing Licence No. 5/2013 dated 21.02.2013 illegal. Consequently, the amounts collected by the opposite party 1 were without legal authority. The revision of building plans, including the scrapping of Cluster D and increase in commercial towers changed the character of the residential complex. The non-disclosure of complete and relevant details to buyers amounted to deficiencies in service as well as an unfair trade practice on the part of the opposite party, as per this Commission's orders in M/s Ireo Five River Pvt Ltd. vs Surinder Kumar Singla and Anr. in FA 1358/2016. Complainant has also relied upon this Commission's orders in Kamal Sood vs. DLF Universal Ltd III (2007) CPJ 7 NC that the builder was duty bound to obtain necessary permissions before accepting bookings, failing which it would constitute an unfair trade practice.
The complainant is before us with the following prayer:
Directing the opposite parties to pay/ refund a sum of Rs.1,83,55,760/- paid by the complainant towards the Unit no. CD A4-11-1102 (11th Floor), Tower A 4, in Group Housing Colony situated at Sector 67 A, in the revenue estate of village Dhumsapur and Maidwas, Tehsil and District Gurgaon, Haryana, known by the project name as "The Corridors";
Direct the opposite parties to pay interest @ 20% per annum on the total amount paid by the complainant from its respective date/s till its realisation;
Further to award the cost and litigation expenses and compensation for harassment and mental agony to the tune of Rs.5.00 lakh to the complainant; and Pass such other or further orders as this Hon'ble Commission may deem fit and proper in the interest of justice and in favour of complainant.
5. The opposite party has contested the complaint by way of Reply. It has opposed the complaint both by way of preliminary objections and on merits, stating that (i) this Commission lacks jurisdiction in the matter in view of the Real Estate (Regulation & Development) Act, 2016 (in short 'RERA') and the Haryana RERA having adjudicated in the matter; (ii) the complaint sought to amend/modify the terms of the contract between the parties which is precluded by the judgement of the Hon'ble Supreme Court in Bharti Knitting Co Vs DHL Worldwide Courier (1996) 4 SCC 704; (iii) there was no promise of a 'service', therefore the averment of deficiency in service is not attracted and (iv) there was no misrepresentation by them which could be interpreted as unfair trade practice. It is contended that time was not of the essence in the ABA as only an endeavour to complete construction within 48 months had been assured. It is also argued that the complainant has not bought any goods and also not hired any services from the Opposite Party. It is also contended that as per clause 13.3 of the ABA even this was to be reckoned from the date of approval of building plans and preconditions therein and as the building plan was approved on 23.07.2013 and the Fire Safety Scheme was approved on 27.11.2014, the period of 48 months would conclude on 27.11.2018. It is submitted that an occupancy certificate had been obtained on 31.05.2019 for towers in Phase 1 and had been applied for in respect of towers A6-A10, B1-B4 and C3-C7. The further period of 12 months available under clause 13.4 and 13.5 of the ABA made the complaint premature. Lastly, the complainant was not a 'consumer' as he had failed provide evidence of not having engaged in speculative purchase of the flat. The relief claimed was beyond the scope of Section 14 of the CP Act, 1986 and the complaint was filed maliciously with the intention of avoiding payment of further instalments.
6. Parties led their evidence and filed written synopsis of arguments. We have heard the learned counsel for the complainant and perused the records. The learned counsel for the opposite party after seeking adjournments on several occasions, again prayed for time on ground of non-availability of the senior counsel, even though the party is represented by a law firm with other advocates on record. None appeared even after a short adjournment on behalf of the complainant to argue the case. Learned counsel for the complainant submitted that the complaint was squarely covered by a judgement of the Hon'ble Apex Court. Arguments were therefore heard on behalf of the complainant. The reply filed by the opposite parties was considered as his final arguments.
7. Learned Counsel for the complainant has relied mainly on the judgement of the Hon'ble Supreme Court in Ireo Grace Realtech Pvt. Ltd., Vs Abhishek Khanna (2021) 3 SCC 241 dated 11.01.2021 which relates to the same project of the opposite party, i.e., 'The Corridors', Sector 67 - A Gurgaon, Haryana. It is his averment that as per this judgement, the Hon'ble Apex Court has taken cognizance of the fact that the project had both completed and incomplete/un-commenced towers in Phases I and II of the project. Based on the fact that the occupancy certificate from the statutory authority was available only in respect of certain towers on the date the case was filed and noting the fact that the builder-opposite party had not commenced/completed other towers in Phase II, the Apex Court had balanced the interests of both the consumer complainants and the builder-opposite parties by (a) equitably allocating the obligations for a full refund of payment to be made with penal interest to the allottees in the case of incomplete/un-commenced flats for the interregnum between the committed date and the date of making of the offer of possession by the opposite party and (b) the obligation to accept possession where the complainants had prayed for possession to be made with compensation for the delay in the case of flats/towers where construction was completed and occupancy certificate was available. In doing so the Hon'ble Apex Court reiterated the law with regard to the right of the consumer to seek refund in view of the inordinate delay on the part of the opposite party as laid down in Pioneer Urban land and Infrastructure Ltd., vs Govindan Raghavan in Civil Appeal no. 12238 of 2018 decided on 02.04.2019 (2019) 5 SCC 725. It also reaffirmed that "It would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession" as laid down in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, Civil Appeal No. 3182 of 2019 decided on 25.03.2019 and that in view of an absence of an OC or offer of possession, the right of the complainant to refund with compensation cannot be denied.
8. The opposite party has contested the averments of the complainants on the grounds that the complainant is not a 'consumer' as per section 2 (1) (d) of the CP Act, 1986 in view of the fact that he is a resident of Mumbai and had booked the flat only to speculate in real estate. It is also argued that the complainant has not bought any goods and also not hired any services from Opposite Party. It is also argued that this Commission lacks jurisdiction to amend/ modify/ re-write the terms of the agreement. With regard to the argument that the case was covered by the judgement of the Hon'ble Supreme Court in Ireo Grace Realtech Pvt. Ltd., Vs Abhishek Khanna (supra), it is submitted by the opposite party that in view of an occupancy certificate dated 31.05.2019 being available the complainant is obligated to take possession of the flat.
9. The admitted facts of the case are that the complainant had booked the flat in question with the opposite parties on 02.03.2013 for a sale consideration of Rs 1,84,44,568/-. Flat no CD-A4-11-1102 was allotted to the complainant vide allotment letter dated 07.08.2013 issued by the opposite party. A total amount of Rs 1,83,55,760/- had been paid as per instalments based upon the Instalment Payment Plan by the complainant to the opposite party as on the date of the complaint. An ABA was entered into between the parties on 02.06.2014 wherein, through clause 13.3, the opposite party had committed to 48 months as the date of handing over of the possession of the flat, including a period of 6 months as the 'Grace Period'. It is also an admitted fact that the complainants had continued to make deposits of various instalments with the opposite party between the date of booking and the complaint and no dispute regarding the same was raised by the opposite party. The opposite party also admits that the construction of flat no. 1102 in Tower A-4 has not been completed as on date. Accordingly, neither an occupancy certificate nor a letter of offer of possession has been issued by the opposite party to the complainant.
10. Neither an OC in respect of this flat is available nor had a letter offering possession has been brought on record by the Opposite Party. It is contended by the complainant that the committed period of 48 months from 27.11.2014 including the grace period of 6 months expired on 27.11.2018. The opposite party, however, contends that the period of 48 months needs to be calculated with reference from the date of building permission (23.07.2013) and more specifically from 27.11.2014, which is the date of sanction of the Fire Safety Scheme approval. According to the opposite party the committed date should be reckoned as 27.11.2018 in view of the period of 48 months available to it. Thereafter, under clause 13.4 and 13.5 of the ABA, it is only after a further period of 12 months that the complainant is entitled to seek a refund.
11. It is the case of the complainant that the judgement in Abhishek Khanna (supra) distinguishes towers/residential units which stand completed and possess an occupancy certificate and for which possession has been offered from those towers/residential units which have either not been completed with an occupancy certificate/have not commenced construction. As this judgement is in respect of the very same project in which the complainants had booked flats, the same covers the instant case and the relief provided by the Apex Court in Abhishek Khanna (supra) should also be extended to the complainant. The opposite party has not been able to argue against this position or produce any judgement of the Hon'ble Supreme Court that modifies or negates it. The accepted position of law as per Pioneer Urban land and Infrastructure Ltd (supra) and Devasis Rudra (supra) have also not been assailed by the opposite party. In the present case, complainant had booked the flat in the project 'The Corridors' on 14.03.2013 and were assured possession as per the ABA on 23.07.2017. However, the same has not been done even on date, i.e., after a lapse of approximately 15 months. No occupancy certificate has been obtained by the opposite party and no offer of possession made to the complainant. A sum of Rs 1,83,55,760/- amounting to nearly 95% of the sale consideration has been collected by the opposite party in the meanwhile which is a very substantial amount. No dispute regarding payments has been raised by the opposite party who has continued to accept deposits from the complainant. The delay in offering possession is, therefore, indisputably a case of deficiency in service as well as an unfair trade practice on part of the opposite party.
12. The contentions of the opposite party of jurisdiction cannot be accepted. It is well settled that the enactment of the RERA 2016 does not preclude the seeking of relief under the CP Act, 1986 as held by this Commission in Anil Patni & Anr. vs. M/s Imperia Structure Ltd. (CC/3011/2017). It has also been held by the Hon'ble Apex Court in M/S Emaar MGF land Ltd. Vs. Aftab Singh I (2019) CPJ 5 (SC) that in a case of a complaint under the CP Act, 1986 the civil remedies before a civil court or through arbitration will not apply. The opposite party has not been able to substantiate its averment that the complainant is not a 'consumer', the onus of which is squarely upon him in terms of Kavita Ahuja Vs. Shipra Estate Ltd. & Jai Krishna Estate developers Pvt. Ltd. & Ors. I (2016) CPJ 31 (NC). The arguments that there was no promise of a service amounting to deficiency in service and misrepresentation constituting an unfair trade practice do not hold water as these issues stand settled in Ireo Grace Realtech Pvt. Ltd., Vs Abhishek Khanna (supra) as well as in Pioneer Urban Land Infrastructure Ltd., vs Govindan Raghavan (supra). The principle of equity of obligations has been laid down by the Hon'ble Supreme Court in Abhishek Khanna (supra) in the very same project of the opposite party. In view of the settled position, the opposite party cannot deny the complainants their right to a full refund or to be kept waiting indefinitely. In Abhishek Khanna (Supra) the Hon'ble Apex Court has held that the committed date has to be reckoned from the date of the sanction of building plans which includes the date of approval of the fire safety scheme. Admittedly, this scheme was approved on 27.11.2014. Therefore, the period of 48 months committed by the opposite party to offer possession after obtaining the occupation certificate should be taken as 27.11.2018. As there is neither an occupancy certificate in respect of the flat available nor has an offer of possession been made, this case would fall under the category of flats that are incomplete/ un-commenced for which the opposite party (Builder) is obligated to refund the amount deposited by the complainant along with interest and costs.
13. We have also gone through the order of the Hon'ble Supreme Court in Ireo Grace Realtech Pvt. Ltd., (Supra) and we are satisfied that the current appeal/ complaint is covered by this judgment as it relates to the same project in which the complainant had booked its flat and the Hon'ble Supreme Court has ordered full refund with interest from the date of the promise of offer of possession till repayment.
14. Accordingly, we consider it appropriate to allow the complaint with the following directions:
(a) Opposite Party shall refund the amount of Rs.1,83,55,760/- along with simple interest @ 9% per annum thereon from the date of promised possession, till the date of payment;
(b) Opposite party shall pay litigation costs of Rs.50,000/- to the complainant;
(c) Order to be complied within 3 months of the receipt of the certified copy of the order;
(d) Opposite party shall be liable to pay a penal interest of 12% simple interest per annum in case of default.
15. With these directions, the consumer complaint stands disposed of.
......................J DEEPA SHARMA PRESIDING MEMBER ...................... SUBHASH CHANDRA MEMBER