National Consumer Disputes Redressal
Amit Puri & 3 Ors. vs M/S. Imperia Structure Ltd. on 9 August, 2018
Author: R.K. Agrawal
Bench: R.K. Agrawal
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 1605 OF 2017 1. PINKI SAINI W/O. SH. ASHOK JAIN, R/O. 106/E-19, SECTOR 3 ROHINI, NEW DELHI-110085 ...........Complainant(s) Versus 1. M/S. IMPERIA STRUCTURE LTD. THROUGH ITS AUTHORIZED SIGNATORY A-25, MOHAN CO-OPERATIVE INDUSTRIAL ESTATE, NEW DELHI-110044 ...........Opp.Party(s) CONSUMER CASE NO. 1606 OF 2017 WITH
IA/12129/2017(Condonation of delay) 1. PRADEEP KUMAR DOGRA S/o. Sh. Prakash Chand Dogra,
Flat No. 333, Kamal Vihar CGHS, Plot No. 5, Sector - 7, Dwarka, Delhi - 110075 ...........Complainant(s) Versus 1. M/S. IMPERIA STRUCTURE LTD. Through its Authorized Signatory, A - 25, Mohan Cooperative Industrial Estate, New Delhi - 110044 ...........Opp.Party(s) CONSUMER CASE NO. 1607 OF 2017 WITH
IA/12130/2017(Condonation of delay) 1. AMIT PURI & 3 ORS. S/O. SH. RAVINDER NATH PURI, R/O. M-1101, JMD GARDEN SECTOR 33, SOHNA ROAD, GURGAON HARYANA 2. MEGHNA PURI W/O. AMIT PURI, R/O. M-1101, JMD GARDEN SECTOR 33, SOHNA ROAD, GURGAON HARYANA 3. RAVINDER NATH PURI, S/O. PRAKASH CHAND PURI, R/O. M-1101, JMD GARDEN SECTOR 33, SOHNA ROAD, GURGAON HARYANA 4. URMIL PURI W/O. RAVINDER NATH PURI,R/O. M-1101, JMD GARDEN SECTOR 33, SOHNA ROAD, GURGAON HARYANA ...........Complainant(s) Versus 1. M/S. IMPERIA STRUCTURE LTD. THROUGH ITS AUTHORIZED SIGNATORY, A-25, MOHAN CO-OPERATIVE INDUSTRIAL ESTATE, NEW DELHI-110044 ...........Opp.Party(s) CONSUMER CASE NO. 1608 OF 2017 WITH
IA/12131/2017(Condonation of delay) 1. SANJAY KUMAR S/O SH. MAHAVIR SINGH ANSHU W/O SH. SANAJAY KUMAR RESIDENTOF CW-03, GF MALIBU TOWNE, SECTOR - 47 GURGAON HARYANA - 122001 ...........Complainant(s) Versus 1. M/S. IMPERIA STRUCTURE LTD. THROUGH ITS AUTHORIZED SIGNATORY A-25, MOHAN CO-OPERATIVE INDUSTRIAL ESTATE NEW DELHI - 110044 ...........Opp.Party(s) CONSUMER CASE NO. 1609 OF 2017 WITH
IA/12132/2017(Condonation of delay) 1. AMARJIT SINGH S/o. Sh. Rajinder Singh, R/o. H. No. 258, First Floor - B, Housing Board, Sector - 40, Gurgaon Haryana ...........Complainant(s) Versus 1. M/S. IMPERIA STRUCTURE LTD. Through its Authorized Signatory, A - 25, Mohan Cooperative Industrial Estate, New Delhi - 110044 ...........Opp.Party(s) CONSUMER CASE NO. 1610 OF 2017 WITH
IA/12133/2017(Condonation of delay) 1. RAJ KUMAR PHOGAT & ANR. S/O. SH. DESH RAM, R/O. RZ-G-14, DHARAMPURA COLONY, NAJAFGARH NEW DELHI-110043 2. PAWAN KUMAR S/O. SH. DESH RAM, R/O. RZ-G-14, DHARAMPURA COLONY, NAJAFGARH NEW DELHI-110043 ...........Complainant(s) Versus 1. M/S. IMPERIA STRUCTURE LTD. THROUGH ITS AUTHORIZED SIGNATORY, A-25, MOHAN CO-OPERATIVE INDUSTRIAL ESTATE, NEW DELHI-110044 ...........Opp.Party(s) CONSUMER CASE NO. 1611 OF 2017 WITH
IA/12134/2017(Condonation of delay) 1. SANJEEV KUMAR & ANR. S/o Sh. Ram Saroop,
R/o C-108, Rail Vihar, Sector 15, Part-II, Gurgaon Haryana 2. DEEPTY W/o Sh. Sanjeev Kumar,
R/o C-108, Rail Vihar, Sector 15, Part-II, Gurgaon Haryana ...........Complainant(s) Versus 1. M/S. IMPERIA STRUCTURE LTD. Through its Authorized Signatory
A-25, Mohan Co-operative Industrial Estate, New Delhi-110044 ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT HON'BLE MRS. M. SHREESHA,MEMBER
For the Complainant : Ms. Himanshi Singh, Advocate For the Opp.Party : Mr. Rohan Ahuja and Mr. Harsh Vardhan,
Advocates.
Dated : 09 Aug 2018 ORDER
These Consumer Complaints u/s 21 (a) (i) of the Consumer Protection Act, 1986 have been filed by Ms. Pinki Saini (CC No. 1605 of 2017), Mr. Pradeep Kumar Dogra ( CC No. 1606 of 2017), Mr. Amit Puri & Ors. (CC No. 1607 of 2017), Mr. Sanjay Kumar (CC No. 1608 of 2017), Mr. Amarjit Singh (CC No. 1609/2017), Mr. Raj Kumar Phogat & Ors. (CC No. 1610/2017) and Mr. Sanjeev Kumar & Anr. (CC No. 1611/2017) respectively, seeking refund of the entire amount collected from them by the Opposite Party (hereinafter referred to as "the Developer") with interest @ 18% p.a. on the amount paid by them from the date of each deposit till realization together with compensation of ₹50,000/- and other reliefs.
2. For the sake of convenience CC bearing No. 1605/2017 has been taken up as a lead case.
3. The brief facts set out in the Complaint are that the Developer, after obtaining licence bearing No. 64 of 2011 dated 07.03.2011 from the Director, Town and Country Planning Haryana and Chandigarh, for setting up a group housing complex, launched a housing scheme known as the "The ESFERA" in the land acquired by them in Sector 37-C, Gurgaon, Haryana. It is stated that the project was widely advertised by the Developer and on seeing the advertisements, the Complainants approached the Developer and were assured that the entire project would be completed and possession would be delivered within 42 months. On the basis of the assurance given, the Complainant made an application on 12.01.2012 for Unit No. 704, 7th Floor, H Block admeasuring 1435 sq. ft. and also entered into a Builder Buyer Agreement on 12.09.2012 for a total sale consideration of ₹65,22,172/-. It is averred that the promised date of delivery was 11.09.2015 and in all the Complainant paid an amount of ₹60,51,027/- towards a major part of the sale consideration. It is stated that the Builder Buyer Agreement was already a prepared document and the Complainant was made to sign on the same though some of the Clauses were unreasonable and in favour of the Developer.
4. It is pleaded that as per Clause 10.1 of the Buyer's Agreement, the Developer was bound to give possession of the subject flat to the Complainants within 42 months which has already expired. The Complainants made regular visits to the site but were surprised to note that the construction was not in progress. No one was present on the site to address the enquiries of the purchasers including the present Complainant. It is also stated that some of the Complainants had taken housing loans and despite payment of a major portion of the total sale consideration there was no progress. As per Clause 11.4 of the Buyer's Agreement it was agreed that in the case of any delay, the Developer shall pay to the purchasers, a compensation @ 5/- per sq. ft. p.m. for the period of delay. It is averred that this Clause 11.4 was a one sided Clause as ₹5/- per sq. ft. is a meagre amount and if the same is calculated in terms of the financial charges, it would amount to 1.4% p.a. rate of interest. Even these charges are to be paid after 42 months of the time period taken by the Developer to construct the houses. It is pleaded that the Developer has not only calculated the cost of the flat but also the amounts towards the fixed cost for which the work has not even started, yet as the same is done only after all the towers are ready and further the Developer has also realized his profits. As per Clause 8 of the Buyer's Agreement, the Developer charges interest @ 18% p.a. from the purchasers on any delayed payment. Therefore applying the same parity, the Developer should refund the amounts collected with the same rate of interest.
5. The Complainants also stated that despite repeated enquiries from the Developer between 2011 to 2017 there was no specific date given for the delivery of possession. Vexed with their attitude the Complainants approached this Commission as the value of all goods and services in CC No. 1605/2017 is ₹65,22,172/-, in CC No. 1606/2017 is ₹79,76,575/-, in CC No. 1607/2017 is ₹84,78,300/-, in CC No. 1608/2017 is ₹1,05,29,286/-, in CC No. 1609/2017 is 65,99,426/-, in CC No. 1610/2017 is ₹71,61,200/- and in CC No. 1611/2017 is ₹75,16,200/- respectively and together with the compensation claimed is more than ₹1 crore and attracts the pecuniary jurisdiction of this Commission.
6. The Developer filed its Written Version stating that this Commission does not have territorial jurisdiction to entertain the Complaint; that the Complaint pertains to commercial transaction; that it should be referred to an Arbitrator; that the delay in the completion of the project was on account of delay in the approvals/sanctions, contractual labour strikes, demonetization drive by the Government and delay in providing of external development works by the government authorities etc.
7. It is stated by the Developer that the Complainants vide a letter dated 10.08.2017 were offered an alternative accommodation in the Group Housing Colony named as "Takshila Heights" situated at Sector 37-C, Gurgaon on lease/rent with immediate effect which was not accepted and this gives an impression that the Complainants did not have any intention to shift their base to Gurgaon. In para 16 of the Written Version, the Developer reproduced clause 11.4 of the Apartment Buyer's Agreement which is detailed as hereunder:-
"The Intending Allotee(s) agrees that in consequence of the Developer/Company abandoning the Scheme or becoming unable to give possession within three years from the date of execution of this Agreement or such extended periods as permitted under the Agreement, the Developer/Company shall be entitled to terminate this Agreement whereupon the Developer/Company's liability shall be limited to the refund of the amounts paid by the Intending Allottee(s) with simple interest @ 9% per annum for the period such amounts were lying with the Developer/Company and to pay no other compensation whatsoever.
However, the Developer/Company may, at its sole option and discretion, decide not to terminate this Agreement in which event the Developer/Company agrees to pay only to the original Intending Allottee(s) and not to anyone else and only in cases other than those provided in Clauses 11.1 11.2, 11.3 and Clause 39 and subject to the Intending Allottee(s) not being in default under any term of this Agreement, compensation @ ₹5/- per sq. ft. equal to ₹53/- per sq. meter of the super area of the said Apartment per month for the period of such delay beyond three(3) years or such extended periods as permitted under this Agreement. The adjustment of such compensation shall be done only at the time of settling the final accounts for handing over/conveying the said Apartment to the Intending Allottee(s) first named in this Agreement and not earlier."
8. All other averments in the Complaints are denied by the Developer and it is stated that there is no deficiency in service on their behalf and they seek dismissal of the Complaints with costs.
9. The Complainant filed her affidavit by way of evidence. The Developer also filed their affidavit by way of evidence along-with exhibits OP-1 i.e. photographs depicting the status of construction; OP-2, the copy of the letter dated 10.08.2017 and OP-3 the Copy of the Board Resolution.
10. The facts not in dispute are that the Complainants entered into a Builder Buyer Agreement with the Developer in the years 2012-2014 and paid a major part of the sale consideration, but admittedly the subject flats are still not completed. For better understanding of the case the details of each Complaint is reproduced as under:-
CC No.
Name
Apartment Details
AREA
(sq. ft.)
BBA DATE
POSSESSION DATE
TOTAL CONSIDERATION
AMOUNT PAID
1605/17
Pinki Saini
Unit No. 704, Floor 07 Block H
1435
12/9/12
12/09/15 ₹65,22,172/-
₹60,51,027/-
1606/17 Pradeep Kumar Dogra Unit No. 804, Floor 08 Block E 1435 19/10/13 19/10/16 ₹79,76,575/-
₹62,99,473/-
1607/17 Amit Puri & Ors.
Unit No. 801, Floor 08 Block C 1650 14/1/13 13/1/16 ₹84,78,300 ₹70,44,437/-
1608/17 Sanjay Kumar Unit No. 1103 Floor 11 Block A 2400 20/7/14 20/7/17 ₹1,05,29,286/-
₹88,78,240/-
1609/17 Amarjit Singh Unit No. 504, Floor 5 Block E 1435 18/3/13 18/3/16 ₹65,99,426/-
52,36,492/-
1610/17 Raj Kumar Phogat & Anr.
Unit No. 603, Floor 6 Block D 1650 9/1/13 9/1/16 ₹71,61,200/-
₹61,94,543/-
1611/17 Sanjeev Kumar & Anr.
Unit No. 1103, Floor 11 Block D 1650 1/10/12 1/10/15 ₹75,16,200/-
₹58,78,826/-
11. 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.
12. 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.
13. Learned Counsel for the Developer vehemently argued that the Complainants were offered alternative accommodation vide letter dated 10.08.2017 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 flat 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." (Emphasis supplied).
14. 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 10.08.2017 which the Counsel is relying upon.
15. 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.
16. 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, these Complaints are 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 ₹50,000/- to be paid to each of the Complainants in each case.
17. In the result these Complaints are partly allowed to the extent indicated above. 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.
......................J R.K. AGRAWAL PRESIDENT ...................... M. SHREESHA MEMBER