National Consumer Disputes Redressal
Vipin Gupta & Anr. vs M/S. Imperia Strutures Ltd. on 18 April, 2022
Author: R.K. Agrawal
Bench: R.K. Agrawal
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 969 OF 2019 1. VIPIN GUPTA & ANR. ...........Complainant(s) Versus 1. M/S. IMPERIA STRUTURES LTD. REGD OFFICE AT A-25,MPHAN CO-OPERATIVE INDUSTRIAL ESTATE MATHURA ROAD NEW DELHI-110044 THROUGH ITS MANAGING DIRECTOR ...........Opp.Party(s) CONSUMER CASE NO. 970 OF 2019 1. MADHU KUMARI ...........Complainant(s) Versus 1. M/S. IMPERIA STRUTURES LTD. ...........Opp.Party(s) CONSUMER CASE NO. 971 OF 2019 1. AMIT RANJAN ...........Complainant(s) Versus 1. M/S. IMPERIA STRUTURES LTD. ...........Opp.Party(s) CONSUMER CASE NO. 972 OF 2019 1. JITENDER SAINI ...........Complainant(s) Versus 1. M/S. IMPERIA STRUTURES LTD. ...........Opp.Party(s) CONSUMER CASE NO. 973 OF 2019 1. NIMESH MAHESHWARI & ANR. ...........Complainant(s) Versus 1. M/S. IMPERIA STRUTURES LTD. ...........Opp.Party(s) CONSUMER CASE NO. 974 OF 2019 1. SHARDA DEVI & ANR. ...........Complainant(s) Versus 1. M/S. IMPERIA STRUTURES LTD. ...........Opp.Party(s) CONSUMER CASE NO. 975 OF 2019 1. SANDEEP AGGARWAL & ANR. ...........Complainant(s) Versus 1. M/S. IMPERIA STRUTURES LTD. ...........Opp.Party(s) CONSUMER CASE NO. 976 OF 2019 1. GUR DAYAL SHARMA & ANR. ...........Complainant(s) Versus 1. M/S. IMPERIA STRUTURES LTD. ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT HON'BLE DR. S.M. KANTIKAR,MEMBER
For the Complainant : For the Complainants : Ms. Priyanjali Singh, Advocate For the Opp.Party : For the Opposite Party : Mr. Pravin Bahadur, Advocate
Dated : 18 Apr 2022 ORDER
The bunch of present Consumer Complaints has been filed under Section 12(1) (a) read with Sections 21 and 22 of the Consumer Protection Act, 1986 (for short "the Act") by the Complainants/Purchasers of the Flats/Apartments in Group Housing Residential Project, under the name and style "THE ESFERA" proposed to be developed at Sector 37 C, Gurgaon 92, District Gurugram, Haryana (hereinafter referred to as the "Project"), by the Opposite Party, i.e. M/s. Imperia Structure Ltd. (hereinafter referred to as the Developer), inter-alia, alleging deficiency in service in not handing over the possession of the booked Flat/Apartment within stipulated period and seeking refund of amount deposited by them along with reasonable interest and compensation.
Since the facts involved in these Complaints are similar except for minor variations in the Unit Numbers and their Sale Consideration, these Complaints are being disposed of by this common Order. However, for the sake of convenience, the facts as enumerated in Consumer Complaint No. 969 of 2019 have been discussed at length herein.
Facts as narrated in the Complaint are that the Developer decided to develop a Residential Group Housing Project called "THE ESFERA" at Sector 37 Gurgaon 92, Haryana. Being allured by the representations of the Developer, Complainants, husband and wife, applied for booking of a Residential Apartment for use of self and family on 17.09.2011, and subsequently, Complainants were allotted Apartment No. 303 in Tower C on 3rd floor having Super Area of 1650 Sq. Ft, for a total Sale Consideration of ₹71,56,250/-. After a span of two years, a pre-printed set of papers christened as "Apartment Buyer Agreement" (hereinafter referred to as "the Agreement) were sent to the Complainants for signatures. According to the Complainants, these papers were actually a standard form adhesion contract having several unconscionable Clauses. It is averred that the Developer threatened to cancel the allotment and forfeit the earned money if the Agreement is not signed, therefore, the Complainants executed the Agreement on 24.01.2013.
The Complainants opted for a construction linked payment plan and in order to pay the Sale Consideration, also took a Home Loan from State Bank of India for which the Complainants are still paying the EMIs. In terms of Clause 10.1 of the Agreement, possession of the booked Apartment, complete in all respect, was supposed to be handed over by the Developer within a period of three and half years (42 months) from the date of execution of the Agreement that is 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 period of three and half years from the date of the execution of this Agreement unless there shall be delay or there shall be failure due to reasons mention in Clause 11.1, 11.2, 11.3 and Clause 41 or due to failure of the intending allottee(s) to pay in time the price of the said Apartment along with other charges and 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 of ₹71,56,250 have been paid to the Developer but still they have miserably failed to deliver the possession of the Apartment purchased by them. Complainants kept pursuing with the Developer with respect to the status of construction of the Project and the exact date of handing over the possession of the Apartment, however, the Officials did not respond. Since the Developer had been deficient in providing services by failing to deliver the possession of the apartment within the stipulated time and therefore, the Complainants sought refund from the Developer via email dated 14.05.2019, however, no amount has been refunded till date. It is also alleged that the terms of the Agreement were unjust, unreasonable, unfair and in favour of the Developer and the Complainants were forced to sign the Agreement. The Developer has been charging interest @ 18% p.a. for delay in payment of instalments by the Complainant, however, on the contrary if there are any delay on their part in handing over the possession, they were liable to pay only ₹5/- per Sq. Ft. per month which is totally arbitrary and amount to Unfair Trade Practice. The Complainants have lost trust in the Developer and no more interesting in taking the possession of the Apartment purchased by them. Hence, alleging deficiency in service and Unfair Trade Practice on the part of the Opposite Party Developer, the Complainants have filed the present Complaint with following prayer:-
"i) Direct the Opposite Party to refund to the complainants, the entire amount paid by the complainants along with interest at the rate of 18% per annum on the said amount 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 as EMIs on home loan alongwith 18% interest on the same;
iii) pay a sum of ₹5,00,000/- to Complainants as compensation for mental harassment and anxiety:
iv) Direct the Opposite Party to pay a sum of ₹1,00,000/- to complainants as litigation cost.
06. 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 possession offered till date
1.
Vipin Gupta & Anr CC/969/ 2019 C-303 1650 24.01.13 24.07.2016 61,90,860 NO
2. Madhu Kumari CC/970/ 2019 E-203 1650 01.10.12 01.10.2015 65,17,625 NO
3. Amit Ranjan CC/971/ 2019 A-1102 1850 21.02.13 21.08.2016 81,71,552 NO
4. Jitender Saini CC/972/ 2019 D-602 1435 22.04.13 22.10.2016 63,94,717 NO
5. Nimesh Maheshwari & Anr CC/973/ 2019 C-1001 1650 20.04.13 20.10.2016 70,70,856 NO
6. Sharda Devi & Anr.
CC/974/ 2019 D-1102 1435 28.02.14 05.08.2017 61,014,32 NO
7. Sandeep Aggarwal & Anr.
CC/975/ 2019 C-304 1435 15.10.12 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 no possession till date.
64,68,116 NO
07. Upon notice, the Opposite Party Developer tendered their Written Version denying the contents of the Complaint and raising the preliminary issues that; (i) the Complainants purchased the Apartments/Flats for investment and gaining profit and as such they are not the "Consumers" as defined u/s 2(1)(d) of the Act; (ii) complaint is pre-mature as possession has to be given in 2019 as informed before RERA; (iii) this Commission does not have the pecuniary jurisdiction to entertain the complaint; (iv) the complaint is bad for want of territorial jurisdiction to this Commission.
08. On merits, it is contended that; (i) the entire Project was divided into two phases i.e. Phase I comprises of towers F, G and H and Phase II comprises of Towers A, B, C, D and E (ii) construction of Phase-I is already complete for which the Occupancy Certificate was applied on 20.06.2017 and subsequently granted to the Developer on 07.02.2018; (ii) more than 70 families are residing in Phase I; (iii) 85% of construction of Phase II is complete and possession whereof will be handed over as per timelines provided to the RERA; (iv) the delay, if any, has occasioned due to extra time consumed in obtaining statutory clearances from the Statutory Authorities, lack of availability of raw materials, labour strike, ban on construction activities, restrictions imposed by Hon'ble High Court of Punjab and Haryana in C.W.P. 20032 of 2008 and subsequent orders passed by the Town and Country Planning Department and these circumstances were not within the control of the Developer and therefore are events of force majeure; (v) the Agreement was signed by the Complainants after going through the contents of the same and time and again they have informed by the Developer about the reasons for delays which were beyond their control; (vi) as per Clause 11.1 of the Agreement, the Developer is entitled for extension of time for the delivery of possession if there is any delay due to force majeure reasons; (vii) parties are bound by terms and conditions of the agreement and the Complainants have further failed to terminate the agreement if there was delay in completion of the project; (viii) since there was no delay attributable to the Opposite Party Developer, no cause of action has arose against the Developer and as such the Complaint is liable to be dismissed; (ix) even assuming that there was some delay in handing over the possession of the booked Flats/Apartments to the Complainants, as per clause 11.4 of the Agreement, the Complainants are entitled for compensation @₹5/- per Sq. Ft. per month.
09. We have heard Ms. Priyanjali Singh, learned Counsel appearing on behalf of the Complainants, Mr. Pravin Bahadur, learned Counsel appearing on behalf of the Opposite Party Developer and have given a thoughtful consideration to the written arguments filed by them.
10. Learned Counsel appearing for the Complainants has argued that the Developer has violated the terms of the contract since it has failed to hand over the possession of the booked Flats/Apartments till date. That the onus is on the Developer to prove that the Complainants are not the "Consumers" and are involved in the business of real estate. She further submitted that the Developer is not bound to handover possession as per RERA deadlines but as per the terms of the Contact , as has been envisaged by the Hon'ble Supreme Court in C.A. No. 3581-3590 of 2020 titled M/s Imperia Structures Ltd. vs. Anil Patni, decided on 02.11.2020. It is further strenuously urged by her that the delay in handing over the possession is wholly attributable to the Developer and they have completely failed to lead any cogent and valid documentary evidence to substantiate that the delay was for the reasons which were beyond their control. She further submitted that the present Consumer Complaints are squarely covered by the decision of the Hon'ble Supreme Court in the case 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 direction by this Commission to the Developer to refund the deposited amount with interest @9% p.a. was upheld.
11. Per contra, learned Counsel for the Opposite Party Developer has vehemently argued that the delay has occasioned on account of reasons which were beyond their control such as compliance of new rules, regulations, orders, notifications, etc coupled with statutory clearances. He further submitted that the Real Estate Sector has been reeling under pressure for last many years and the demonetization along with the pandemic has had unfathomable adverse effect on the entire economy. However, he submitted that the Developer is still willing to provide the possession of the Apartment to the Complainants which had been booked by them according to the terms of the Agreement, since the Project is at its final stage of completion. He vigorously asserted that the Project got delayed owing to delays in making timely payments by the Complainants, lack of raw material, labour strike, ban on construction by the Punjab and Haryana High Court, delay in getting water supply etc.
12. We have given our thoughtful consideration to the arguments advanced by the learned Counsel for the parties.
13. Recently, this Commission in the case of Brigadier Harir Pant and Ors. Vs. Imperia Structure 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 the Project and handing over the possession of the Flats/Apartments purchased by the Buyers, has 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 Project 'The ESFERA' have been dealt with in detail by this Commission in "CC No. 1605 of 2017 titled as Pinki Saini vs Imperia Structure Ltd. and connected matters" decided on 09.08.2018 and in "CC No. 3011 of 2017 titled as "Anil Patni & Anr. Vs. M/s. Imperia Structures Ltd." and other connected matters, vide Order dated 12.09.2018, this Commission partly allowed the Consumer Complaints by observing as under:-
"9. The Developer in their Affidavit of Evidence submitted that-the Complainant is not a 'Consumer' as the subject flat was purchased for commercial purpose. This Commission in FA No. 530 of 2015, Sai Everest Developers & Anr. Vs. Harbans Singh, has laid down the principle of law that when the plea that the said flat has been purchased for commercial purpose is raised by the Developer, the onus of proof shifts to the Developer to establish whether the Complainant has purchased the subject flat for trading/dealing in real estate. In the instant case there is no documentary evidence to establish that the Developer has discharged this onus. In the absence of any evidence to substantiate this contention, we are of the considered view that the Complainant is a' consumer' as defined u/s. 2(1)(d) of the Consumer Protection Act, 1986. We are also of the view that this Commission has the Territorial Jurisdiction to entertain these Complaints and the plea raised by the Developer regarding Arbitration has already been settled by the decision of a Larger Bench of this Commission in Consumer Complaint No. 701 of 2015, Aftab Singh Vs. Emar MGF Land Limited & Anr., which has also been recently affirmed by the Hon'ble Apex Court. The contention of the Developer that the Complainants have not paid the demands made on casting of 17th floor, 20th floor and for outside painting is untenable as the construction itself is still not complete and there is no pleading in the Written Version giving any specific date of offer of possession.
10. It is pertinent to note that the Developer has not filed any evidence to support his contention that the delay occurred due to force majeure events. In fact demonetization, non-availability of contractual labour, delay in notifying approvals cannot be construed to be force majeure events from any angle.
11. Learned Counsel for the Developer vehemently argued that the Complainants were offered alternative accommodation vide letter dated 03.04.2017 which was not 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, we hereby offer that till we complete construction of your subject matter fiat we shall arrange alternative accommodation/flat for you in Group Housing Colony named "Takshila Heights" situated at Sector-37C, Gurgaon on lease/rent with immediate effect. We will bear the rent of alternative accommodation/flat at "Takshila Heights". However, you shall have to pay the common area maintenance charges and other user based charges like electricity, etc., which you would have borne for your flat in "Esfera" as well."
12. It is significant to mention that in the afore-noted letter there is an admission by the Developer that the construction is still not completed. Additionally, even the specific date of delivery of possession has not been mentioned anywhere either in the Written Version or in the Affidavit or even in the letter dated 03.04.2017 which the Counsel is relying upon.
13. This Commission in Emmar MGF Land Ltd. & Ors. Vs. Amit Puri : II (2015) CPJ 568 (NC) has laid down the ratio that if the construction is incomplete and the money deposited by the Complainants is lying with the Developer it is the discretion of the Complainants whether to await for the project to be completed or seek refund. In the instant case the facts and circumstances and the material on record evidence that the promised date of delivery of possession is 42 months from the date of the Builder Buyer Agreement and till date the construction is not complete. Hence we are of the considered view that there is deficiency in service on the part of the Developer and we direct refund of the amount deposited by each of the Complainants with reasonable interest. Ld. Counsel on instructions from the Complainants, who are also present in person, submitted that to put a quietus to this matter and not to be engaged in any further litigation, interest @ 9% p.a. is acceptable to each of the Complainants as the same was promised by the Developer in Clause 11.4 of the Builder Buyer Agreement. The relevant portion of the Clause 11.4, reproduced in paragraph 7, clearly stipulates that the Developer's liability, in the event of becoming unable to offer possession within 3 years from the date of the execution of the agreement, shall be limited to refund of the amounts paid by the intending allottees with simple interest @ 9% p.a. for the period such amounts were lying with the Developer.
14. Keeping in view the admitted incomplete construction, the fact that some of the Complainants have also taken bank loans and are paying EMIs and considering the stipulation provided in Clause 11.4, this Complaint is partly allowed directing the Developer to refund the amounts deposited with simple interest @ 9% p.a. from the 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 four weeks from the date of receipt of a copy of the order, failing which, the amount shall attract interest @ 12% p.a. for the said period."
10. The Opposite Party Developer challenged the Order dated 12.09.2018 passed by this Commission in "CC No. 3011 of 2017 titled as "Anil Patni & Anr. Vs. M/s. Imperia Structures Ltd." and other connected matters" by way of filing Civil Appeals before the Hon'ble Supreme Court. The Hon'ble Supreme Court dealt with all the contentions raised by the Opposite Party Developer and dismissed these Civil Appeals vide their Judgment dated 02.11.2020 in the case "M/s. Imperia Structures Ltd. vs. Anil Patni & Anr." [Civil 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 the Commission that; (i) all the Complainants were 'Consumers' within the meaning of the Act and that; (ii) there was delay on part of the Appellant in completing the construction within time. The stand taken by the Appellant at various stages, itself acknowledged that there was delay but the Appellant tried to rely on certain events as mentioned in ground (c) quoted hereinabove. In our view, the conclusions drawn by the National Commission in relation to these issues are absolutely correct and do not call for any interference.
....
33. We may now consider the effect of the registration of the Project under the RERA Act. In the present case the apartments were booked by the Complainants in 2011-2012 and the Builder Buyer Agreements were entered into in November, 2013. As promised, the construction should have been completed in 42 months. The period had expired well before the Project was registered under the provisions of the RERA Act. Merely because the registration under the RERA Act is valid till 31.12.2020 does not mean that the entitlement of the concerned allottees to maintain an action stands deferred. It is relevant to note that even for the purposes of Section 18, the period has to be reckoned in terms of the agreement and not the registration. Condition no. (x) of the letter dated 17.11.2017 also entitles an allottee in same fashion. Therefore, the entitlement of the Complainants must be considered in the light of the terms of the Builder Buyer Agreements and was rightly dealt with by the Commission.
34. Lastly, it may be noted that the Consumer Protection Act, 2019 (hereinafter referred as, "2019 Act") was enacted by the Parliament "to provide for protection of the interests of consumers and for the said purpose, to establish authorities for timely and effectively administration and settlement of the consumers' dispute and for matters connected therewith or incidental thereto". Sections 2(7), 2(33), 2(37), and 2(42) define expressions "Consumer", "Product", "Product Seller" and "Service" respectively. Sections 85 and 86 deal with liability of "Product Service Provider" and "Product Seller". Sections 100 and 107 of 2019 Act are to the following effect:-
"100. The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.
107. (1) The Consumer Protection Act, 1986 is hereby repealed.
(2) Notwithstanding such repeal, anything done or any action taken or purported to have been done or taken under the Act hereby repealed shall, in so far as it Is not inconsistent with the provisions of this Act, be deemed to 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 to prejudice or affect the general application of section 6 of the General Clauses 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 107 saves all actions taken or purported to have been taken under the C.P. Act. It is significant that Section 100 is enacted with an intent to secure the remedies under 2019 Act dealing with protection of the interests of Consumers, even after the RERA Act was brought into force.
Thus, the proceedings initiated by the complainants in the present cases and the resultant actions including the orders passed by the Commission are fully saved.
35. Resultantly, we reject all the submissions advanced by the Appellant. These appeals are accordingly dismissed affirming the view taken by the Commission. We quantify the costs at Rs. 50,000/- (Rupees Fifty Thousand only) to be paid by the Appellant in respect of each of the Consumer Cases, over and above the amounts directed to be made over to the Complainants and shall form part of the amount payable by the Appellant to the Complainants.
36. All the Complainants are entitled to execute the orders passed by the Commission in their favour, in accordance with law."
14. Respectfully following the ratio of the Judgment passed by the Hon'ble Supreme Court in the case of M/s. Imperia Structures Ltd. (supra), we partly allow all the Consumer Complaints and direct the Opposite Party Developer to refund the entire amounts deposited by the Complainants in the aforesaid Complaints alongwith simple interest @9% p.a. from the respective dates of deposits till the date of actual payment together with costs of ₹50,000/- to be paid to the each of the Complainants, within a period of six weeks from the date of passing of this order failing amount the amount shall attract interest @ 12% p.a. for the same period.
15. The Consumer Complaints are allowed in above terms. The pending applications, if any, also stand disposed of.
......................J R.K. AGRAWAL PRESIDENT ...................... DR. S.M. KANTIKAR MEMBER