National Consumer Disputes Redressal
Shaheena Chadha & Anr. vs Ireo Grace Real Tech Pvt. Ltd. & 4 Ors. on 28 August, 2020
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 303 OF 2018 1. SHAHEENA CHADHA & ANR. ...........Complainant(s) Versus 1. IREO GRACE REAL TECH PVT. LTD. & 4 ORS. Through its Managing Director Office At: 304, Kanchan House, Karampura, Commercial Complex, New Delhi-110015 2. M/S. PRECISION REALTORS PRIVATE LIMITED Through its Managing Director Office At:305, 3rd Floor, Kanchan House, Karampura, Commercial Complex, New Delhi-110015 3. M/S BLUE PLANET INFRA DEVELOPERS PVT. LTD. Through its Managing Director Office At:40/16, East Patel Nagar, New Delhi. 4. M/S. MADEIRA CONBUILD PVT,. LTD. Through its Managing Director Office At: 304, 3rd Floor, Kanchan House, Karampura Commercial Complex, New Delhi-110015 5. M/S. GLOBAL ESTATE (A PARTNERSHIP FIRM) Through its Partner Office At: G-23, Ashok Vihar, Phase-I, Delhi-110052 ...........Opp.Party(s)
BEFORE: HON'BLE MR. PREM NARAIN,PRESIDING MEMBER HON'BLE MR. C. VISWANATH,MEMBER
For the Complainant : Mr. Nitraj Gupta, Advocate with
Mr. Ritesh Khare, Advocate For the Opp.Party : Ms. Renu Gupta, Advocate
Dated : 28 Aug 2020 ORDER
This consumer complaint has been filed by the complainants Shaheena Chadha & anr. against the opposite party M/s. Ireo Grace Realtech Pvt. Ltd. & ors.
2. Brief facts of the case are that complainants booked a residential apartment bearing No.CD-A1-03-302 in group housing (in the project of opposite party no.1) known as "The Corridors" situated in Sector 67, Gurgaon, Haryana. The total cost of the apartment/flat was Rs.2,02,71,390/-. The main prayers made in the complaint are as under:-
"1. Direct opposite parties to refund the entire amount of Rs.62,31,906/- with interest @20% per annum from the date of deposit until the realization.
2. Direct opposite parties to pay compensation of Rs.15,00,000/- towards mental and physical harassment.
3. Direct opposite parties to pay Rs.2,50,000/- towards litigation cost and allied expenses."
3. The complaint has been resisted by the opposite party by filing the written statement. It has been stated by the opposite party that the present complaint is pre-mature, as the proposed time for handing over of possession has still not expired. As per clause 43 of Schedule-I of the booking application and clause 13.3 of the Agreement, the OP had proposed to handover the possession of the apartment in question, within 42 months plus 6 months grace period from the date of approval of building plan and/or fulfillment of the preconditions imposed thereunder. Therefore, the present complaint filed on 31.01.2018 alleging delay in delivery of possession, which in terms of the agreement and the booking application is proposed to be handed over on 27.11.2018, is completely pre-mature. It has been stated that this commission has no jurisdiction to amend/modify/re-write the terms of the agreement and therefore, the basis on which relief is claimed is not maintainable. It has been stated that the complainants are not the consumers and are investors who have invested in project only for the commercial purpose. It has been stated that the issues raised in the complaint are of contractual nature, which can only be agitated before and dealt with by a Civil Court. It has been stated that the compensation is awarded only if the conditions of Clause (d) of Sec. 14(1) of the Act are satisfied. Thus, the relief claimed for payment of amounts mentioned in the prayer clauses of the complaint towards compensation, cannot be entertained as there is no allegation of 'negligence' on the part of the OP on account of which any loss or injury is caused to the complainants. It has been further stated that the dispute arising in respect of an agreement to sell an apartment does not relate to rendering of any service within the meaning of Sec 2(1) (o) of the Act. Therefore, it has been requested to dismiss the complaint.
4. Both parties have filed their evidence by way of affidavits which have been taken on record.
5. Heard the learned counsel for the parties and perused the record. Learned counsel for the complainants stated that as against the total consideration of Rs.2,02,71,390/-, the complainants have already paid Rs.62,31,906/-. The builder-buyer agreement was executed on 24.03.2014 and the possession was to be given within 42 months with a grace period of six months from the date of approval of the plan. The learned counsel for the complainants stated that allotment letter was issued on 07.08.2013. The plan was approved by the competent authority on 25.07.2013. Thus, the possession was due in January, 2017. There was no demand from the opposite parties and therefore, right from 2013, no further amount was paid by the complainant. In 2016, the opposite parties wanted to change their plan, however, they could not get the requisite permission, therefore, plan could not be changed. The opposite parties raised the demand in 2017 for IV instalment (stage of casting lower basement roof) on 10.01.2017. The opposite parties have taken a stand that though the plan was approved on 25.07.2013, however, final approval from the fire department was received only on 26.11.2014. Thus, the opposite parties' view is that the due date of possession would be 26.11.2018 and not 25.07.2017. Learned counsel for the complainants argued that even if the due date is taken to be 25.11.2018, still the building is pending for completion and there is no hope that the building will be completed in near future and possession could be handed over. Thus, there is already long delay in getting the possession and therefore, the complainants have applied for refund. Learned counsel further stated that Clause 7.4 of the agreement states that the allottee will pay 20% interest on the delayed instalments, therefore, the complainants are also entitled to get interest @20% on the amount of refund.
6. On the other hand, learned counsel for the opposite parties stated that this Commission does not have the pecuniary jurisdiction to decide the present complaint as the total amount paid by the complainants is only Rs.62,31,906/-. It was stated that there is already a larger bench of this Commission which is looking into the aspect of pecuniary jurisdiction in refund cases in the matter of Renu Singh, Vs. Experion Developers Private Limited, Consumer Complaint No.1703 of 2018. In this case, the larger bench is considering following two issues:-
(i) What should be the value of goods or services where the refund of paid amount has been sought?
(ii) What should be the period for which the interest should be taken as compensation for adding to the value of goods or services for the purpose of availing the pecuniary jurisdiction of a consumer forum?
7. It was stated that in the refund cases only the amount deposited will be considered and clearly this amount is much less than rupees one crore and therefore, this Commission does not have the pecuniary jurisdiction. Moreover, even if the interest is added to this amount of Rs.62,31,906/-, it will have to be added only for two years and not till filing of the case. It was argued by the learned counsel that the matter should not be decided till the disposal of the case Renu Singh, Vs. Experion Developers Private Limited (supra) by the larger bench. In response to this argument of the learned counsel for the opposite parties, the learned counsel for the complainants stated that till any final decision comes from the larger bench, the decision of the larger bench of this Commission in Consumer Case No.97 of 2016, Ambrish Shukla and Ors. Vs. Ferrous Infrastructure Pvt. Ltd., decided on 07.10.2016 shall remain valid and as per this decision the interest is to be added to the total consideration of the subject matter. Thus, clearly, there is no issue relating to pecuniary jurisdiction in the present matter.
8. Learned counsel for the opposite parties further stated that the Clause 13.3 of the agreement is very clear and it reads as under:-
"Subject to Force Majeure, as defined herein and further subject to the Allottee having complied with all its obligations under the terms and conditions of this Agreement and not having defaulted under any provision(s) of this Agreement including but not limited to the timely payment of all dues and charges including the total Sale Consideration, registration charges, stamp duty and other charges and also subject to the Allottee having complied with all formalities or documentation as prescribed by the Company, the Company proposes to offer the possession of the said Apartment to the Allottee within a period of 42 (forty Two) months from the date of approval of the Building Plans and/or fulfillment of the preconditions imposed thereunder ("Commitment Period"). The Allottee further agrees and understands that the Company shall additionally be entitled to a period of 180 days ("Grace Period"), after the expiry of the said Commitment Period to allow for unforeseen delays beyond the reasonable control of the Company."
9. It was argued by the learned counsel for the opposite parties that if the approval of the plan is subject to fulfilment of any condition, then the period of 42 months will be countered from the date of fulfillment of that condition. In the present case the approval from the fire department was received on 26.11.2014 and therefore, the duration of 42 months will start from this date. Thus, the possession was due on 26.11.2018. The construction work is in progress. In the agreement, there is already a provision for compensation for delay in possession @Rs.7.50/- per sq.ft. per month. The complainants are also bound by the different clauses of the agreement and the agreement provides for compensation for delay in possession. No deficiency can be attributed to the opposite parties for delay in possession and complainants cannot seek refund on this ground.
10. Learned counsel for the opposite parties further stated that the demand of interest @20% p.a. by the complainants is not justified. There is no such agreement between the complainants and the opposite parties. The opposite parties are charging interest so that the allottees paid installments in time and the construction work does not suffer.
11. We have carefully considered the arguments advanced by the learned counsel for the parties and have examined the record. It is true that the reference is pending with larger bench of this Commission in respect of pecuniary jurisdiction in refund cases as well as for taking the portion of the interest for considering the pecuniary jurisdiction. It has been suggested in the reference that for refund cases the amount of refund should be considered along with interest and not the total consideration as stated in the judgment of larger bench in Ambrish Shukla and Ors. Vs. Ferrous Infrastructure Pvt. Ltd. (supra). It has further been referred that the interest of 2 years should only be added to the total consideration in the cases of possession, to the amount paid in cases of refund. However, we are not sure when the decision of the larger bench will be delivered. The current ruling judgment is Ambrish Shukla and Ors. Vs. Ferrous Infrastructure Pvt. Ltd. (supra) and therefore, in the interest of complainants, the decision cannot be kept deferred till the disposal of the reference by the larger bench. The current practice as per the larger bench of this Commission in Ambrish Shukla and Ors. Vs. Ferrous Infrastructure Pvt. Ltd. is that the interest till filing of the complaint @18% p.a. is added to the consideration amount to decide the pecuniary jurisdiction and therefore, we find that this Commission has the pecuniary jurisdiction to decide the present complaint. The opposite parties have not filed any proof that the said apartment has been booked by the complainants for commercial purpose. Hence, the complainants are consumers within the purview of the Consumer Protection Act, 1986.
12. It is seen that in the year 2017, IV installment was demanded by the opposite parties, which corresponded with the stage of casting of lower basement roof. The learned counsel for the opposite parties did not clarify whether any progress has happened in the construction of the building after that stage. The opposite parties have not offered possession to the complainants so far. The opposite parties offered alternative property to the complainants, but the complainants have refused the same. After long delay the complainants cannot be compelled to take possession particularly when there is no time frame for completion of building and handing over of the possession in the light of judgment of the Hon'ble Supreme Court in Civil Appeal No.12238 of 2018 titled as "Pioneer Urban Land & Infrastructure Ltd. versus Govindan Raghavan" where the Apex Court has observed:
"3.8. The National Commission vide Final Judgment and Order dated 23.10.2018 allowed the Consumer Complaint filed by the Respondent - Flat Purchaser, and held that since the last date stipulated for construction had expired about 3 years before the Occupancy Certificate was obtained, the Respondent - Flat Purchaser could not be compelled to take possession at such a belated stage. The grounds urged by the Appellant - Builder for delay in handing over possession were not justified, so as to deny awarding compensation to the Respondent - Flat Purchaser. The clauses in the Agreement were held to be wholly one - sided, unfair, and not binding on the Respondent - Flat Purchaser. 6 The Appellant - Builder was directed to refund Rs.4,48,43,026/- i.e. the amount deposited by the Respondent - Flat Purchaser, along with Interest @10.7% S.I. p.a. towards compensation.
9. We see no illegality in the Impugned Order dated 23.10.2018 passed by the National Commission. The Appellant - Builder failed to fulfill his contractual obligation of obtaining the Occupancy Certificate and offering possession of the flat to the Respondent - Purchaser within the time stipulated in the Agreement, or within a reasonable time thereafter. The Respondent - Flat Purchaser could not be compelled to take possession of the flat, even though it was offered almost 2 years after the grace period under the Agreement expired. During this period, the Respondent - Flat Purchaser had to service a loan that he had obtained for purchasing the flat, by paying Interest @10% to the Bank. In the meanwhile, the Respondent - Flat Purchaser also located an alternate property in Gurugram. In these circumstances, the Respondent - Flat Purchaser was entitled to be granted the relief prayed for i.e. refund of the entire amount deposited by him with Interest."
13. From the above discussion, we are of the view that the complainants are entitled for refund of the deposited amount of Rs.62,31,906/-. Hon'ble Supreme Court in Kolkata West International Pvt. Ltd. Vs. Deva Asis Rudra, II (2019) CPJ 29 (SC) has reduced the rate of interest from 12% p.a. on the refund amount awarded by this Commission to 9% p.a.. Hon'ble Supreme Court in DLF Homes Panchkula Pvt. Ltd. & anr. Vs. D S Dhanda, ETC; Sudesh Goyal, ETC, 2019 Law Suit (SC) 1207 has also observed that in refund cases, interest @9% p.a. is reasonable and sufficient. Thus, we allow the complaint partially and pass the following order:-
ORDER
The opposite party No.1 shall refund an amount of Rs.62,31,906/- to the complainants along with interest @9% p.a. from the date of respective deposits till actual payment. The order be complied by the opposite parties within a period of 60 days from the date of receipt of this order.
...................... PREM NARAIN PRESIDING MEMBER ...................... C. VISWANATH MEMBER