National Consumer Disputes Redressal
Sunil Sikka vs M/S. Ramprastha Promoters And ... on 23 March, 2023
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 746 OF 2018 1. SUNIL SIKKA A-1/103, SAFDARJUNG ENCLAVE, NEW DELHI-110029 ...........Complainant(s) Versus 1. M/S. RAMPRASTHA PROMOTERS AND DEVELOPERS PVT. LTD. & 7 ORS. REGD. OFFICE AT:
C-10, C BLOCK MARKET,
VASANT VIHAR, NEW DELHI-110057 2. BALWANT CHAUDHARY SINGH, MANAGING DIRECTOR, REGD. OFFICE AT:
C-10 C-BLOCK MARKET,
VASANT VIHAR, NEW DELHI-110057 3. ARVIND WALIA, DIRECTOR, REGD. OFFICE AT:
C-10, C BLOCK MARKET,
VASANT VIHAR, NEW DELHI-110057 4. SANDEEP YADAV, DIRECTOR, REGD. OFFICE AT:
C-10, C BLOCK MARKET,
VASANT VIHAR, NEW DELHI-110057 5. BLUE BELL PROPTECH PRIVATE LIMITED REGD. OFFICE AT:
C-10, C BLOCK MARKET,
VASANT VIHAR, NEW DELHI-110057 6. AMIT YADAV, DIRECTOR SECTOR-44, PLOT NO. 114, GURGAON-122002 HARYANA 7. SANJAY DAROLIA, NOMINEE DIRECTOR SECTOR-44, PLOT NO. 114, GURGAON-122002 HARYANA 8. VIJAY KRISHNA CHAUDHARY, NOMINEE DIRECTOR HAVING OFFICE AT:
C-10, C-BLOCK MARKET,
VASANT VIHAR, NEW DELHI-110057 ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE RAM SURAT RAM MAURYA,PRESIDING MEMBER HON'BLE DR. INDER JIT SINGH,MEMBER
For the Complainant : Mr. Rishi Kapoor, Advocate For the Opp.Party : Ms. R. Gayathri Manasa, Advocate
Dated : 23 Mar 2023 ORDER
DR.INDER JIT SINGH, MEMBER
The present Consumer Complaint (CC) has been filed by the Complainant against Opposite Parties (OPs) as detailed above, inter alia praying for directions to the OP(s) to:-
Refund amount of Rs. 62,87,441/- as principal amount received by OP(s) alongwith an interest @ 24% on principal amount from date of receiving the principal amount from complainants up to actual realization of payment and;
Compensate the complainant with an amount of Rs. 5,00,000/- to the complainants in lieu of default in offering possession;
Pay an amount of Rs. 5,00,000/- towards damages, pain, mental agony, hardships, suffered by the complainants;
Pay Rs.2,00,000/- as to cost of legal expenses.
Notice was issued to the OP(s) on 10.09.2018. Parties filed Written Statement/Reply and Evidence by way of an Affidavit as per details given in the Table at Annexure-A. The details of the flats allotted to the Complainant /other relevant details, based on pleadings of the parties and other records of the case are also given in the Table at Annexure-A.
It is averred/stated in the Complaint that:
That the complainant booked a flat in the residential Project launched by the Opposite Parties in the name of "RISE", situated in RP City, Sector 37-D, Gurgaon, Haryana and was allotted flat No. 1003, on the 10th Floor, tower D with a Super Area 1765 sq.ft. Buyer's agreement dated 04.08.2012 was entered between the parties. The total consideration for the flat was Rs. 79,71,112/- out of which, the complainants paid Rs.62,87,441/-. The OPs were liable to handover the possession of the unit by 01.09.2015 with a grace period of 120 days.
OPs have deliberately, wilfully, dishonestly and intentionally cheated and defrauded the complainants of their hard earned money. That there is deficiency in services on the part of OPs and OPs are indulged in unfair trade practices. After having paid almost 95% of the total cost of the flat, the OPs failed to hand over the possession within the stipulated period and it is alleged that the construction has not been completed so far. The Complainants are the original allottee.
As per ABA clause 15 (a), OPs were bound to give possession of the apartment to complainants by September, 2015. There is a significance delay in handing over the possession hence OPs are deficient in rendering services. It is further stated that the complainants have now lost all faith in the project of the OPs. The complainants do not now wish to reside in the apartment even if the OPs deliver the possession of the same to him in the near future. Hence the complainants wish refund of the amount paid by them along with interest.
The OP-1 in their written statement/reply stated that:
OP-1 is a company incorporated under the Companies Act 1956, and is a real estate developer. OP-1 denies the fact of deficiency in providing its services and being involved in unfair trade practices and restrictive trade practices as alleged in the complaint. The OP has received an extension for completion and development of project up till 31.12.2023 vide memo no. 278 of 2017/7/2021/2 of RERA dated 20.07.2021. That the present project "RISE" has received funding from Govt. of India under the SWAMIH (Special Window for Affordable and Mid-Income Housing). The written statement filed by OP-1 shall also be considered to be on behalf of OP-2, OP-3, OP-4, OP-6.
OP-1 stated that the delay in handing over the possession of the Apartment was on account of force majeure and unforeseeable circumstances beyond the control of OPs, including a ban on use of ground water by Hon'ble High Court of Punjab & Haryana vide its order dated 16.07.2012 directing to use only treated water from available Sewerage Treatment Plants followed by a letter dated 01.9.2012 from Dy. Commissioner, Gurgaon in this regard, heavy shortage of supply of construction material pursuant to orders of Hon'ble Supreme Court in the Case Deepak Kumar etc. Vs. State of Haryana, Demonization announced by Government of India on 08.11.2016, shortage of labour/workforce in the real estate market due to implementation of Government Programmes like NREGA, JNNURM, etc.
That the complainants have filed the present complaint with malafide intention to extract huge sums of money from the OPs. It is also averred that clause 15(a) of the ABA is subject to Clause 31-Force Majeure, and in certain circumstances the date of possession gets extended automatically. Moreover, as per Clause 17(a) of ABA, in the eventuality of delay in handing over possession beyond the period stipulated in Clause 15(a), the allottee will be compensated with Rs5/- per sq ft per month of super area. It is contended that, time is not the essence in respect of delivering the possession of the apartment, and the stipulated date of delivery was only tentative and was not a firm date.
That by the amendment of section 2(1)(d)(ii) of the Consumer Protection Act, 1986, definition of "consumer" has been redefined to oust the person availing services for commercial purposes, the Hon'ble Commission has held in catena of cases that a person whose sole objective is to make a profit in relation to its claim and not to redress any alleged injury or the one who obtains an Apartment not for their own use, does not fall under the ambit of definition of "consumer". That the parties have agreed in Clause 37 of the agreement, where in case of a dispute it should be initially referred to conciliation and if not resolved, be finally settled by arbitration under provisions of Arbitration and Conciliation Act, 1966. This Commission lacks pecuniary jurisdiction since the amount involved is less than Rs. One crore.
OP-5 in their written statement/reply stated that they are not a proper and necessary party to the present complaint. OP-5 is only a financer of the project and in order to secure and recover its funding has executed a Joint Development Agreement (JDA) dated 29.11.2011 with OP-1, which is also referred to in the ABA dated 26.12.2012. The OP-5 is neither the owner of the land nor liable for the construction and development works in any way whatsoever. OP-5 is in no way responsible for the financial transactions between the Complainant and OP-1, therefore no amount of liability in any manner can be imposed on OP-5. Thereafter, the OP-5 in its written statement has made averments similar to OP-1 and has supported the stand taken by OP-1.
Heard counsels of both sides. Contentions/pleas of the parties, on various issues raised in the Complaint, based on their Complaint/Reply, Evidence, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.
It was argued by the OP that they have utilized all resources towards completion of the project. However, the delay is attributable to reasons beyond the control of the Opposite Party. Another major reason contributing to the impossibility of performance is that of COVID-19 which caused a major havoc and sudden halt in every industry, specially, in the real estate industry. The Complainants are only entitled to the Compensation as provided under Clause 17 of the Agreement. The Apex Court of India in Puri Constructions Pvr Ltd Vs Harish Chawla etc, Civil Appeal no. 4472-75 of 2019 vide an Order dated 07.05.2019 observed that " However, having regard to the market conditions, we are of the view that 12% per annum is on the higher side. We accordingly direct that the interest shall be payable at the rate of 8% per annum." The construction has begun in full swing after disbursement of funds in favour for the project "PRIMERA" and thereafter, the Opposite Party has been rapidly pacing towards completion of the project RISE and will be able to deliver possession of the apartments soon. It is essential that any cash outflow is properly planned and provided and is not random which will have a negative impact on the project.
The contention of OP(s) that this Commission lacks pecuniary jurisdiction is not valid. Under Section 21 of the Act, Commission has the jurisdiction where value of goods and services and compensation, if any, claimed exceeds Rs. one crore. The contention that complainant is not a consumer as he has purchased the unit for commercial purpose is also rejected as no such evidence has been adduced by the OP(s) in this regard. It has been observed by this Commission in various cases (Kavita Ahuja Vs Shipra Estates Ltd, CC 137 of 2010, decided on 12.02.2015, Santosh Johri Vs M/s Unitech Ltd, CC 429 of 2014 and connected Cases, decided on 08.06.2015, Aloke Anand Vs M/s Ireo Grace Pvt Ltd & Others, CC no 1277 of 2017 decided on 01.11.2021) that purchase of a house can only be for a commercial purpose if the purchaser is engaged in the business of purchasing and selling houses or plots on a regular basis, solely with a view to make profit by way of sale of such houses, if the house is purchased purely as an investment and the purchaser is not undertaking the trading of houses on regular basis, then it would be difficult to say that he had purchased it for commercial purpose. The plea of OP(s) that delay was due to force majeure circumstances is not valid as even after a gap of more than 07 years from the committed date given in the ABA, possession of flat has not been given. There is no documentary evidence to support the contention of the Opposite Parties that the reasons pleaded by them, can be construed as 'Force Majeure. The contention of the OP(s) that the parties are bound by the agreement is also not acceptable. In Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghvan (2019) 5 SCC 725, Hon'ble Supreme Court observed that "a term of a contract will not be final and binding if it is shown that the flat purchasers had no option but to sign on the dotted line, on a contract framed by the builder ......... the incorporation of one sided clause in an agreement constitute an unfair trade practice as per Section 2 (r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling flats by the builder ........., the appellant-builder cannot seek to bind the respondent with such one sided contractual terms." Plea of the OP(s) for Arbitration as per conditions in the Agreement is also not accepted. It was held by Hon'ble Supreme Court in Imperia Structures Ltd Vs Anil Patni and Anr (2020)10 SCC 783 "Remedies under the Consumer Protection Act are in addition to the remedies under special statutes".
Committed date of possession as per ABA, with grace period was 01.01.2016. Even after a gap of more than 07 years, construction is not complete, OC has not been obtained and OPs are not in a position to give any firm date for delivering the possession to the complainant. It was held by Hon'ble Supreme Court in Wg. Cdr. Arifur Rahman Khan and Aleya Sultana and Ors. vs DLF Southern Homes Pvt. Ltd. & Ors. (2020) 16 SCC 512, "failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within the contractually stipulated period, amount to deficiency". In Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra- (2020) 18 SCC 613, Hon'ble Supreme Court observed that "A buyer can be expected to wait for possession for a reasonable period."
In the instant case, there is an inordinate delay in handing over the possession of flat by the OP(s). The complainant cannot be made to wait for an indefinite time and suffer financially. Hence, the complainant in the present circumstances has a legitimate right to claim refund alongwith fair delay compensation/interest from the OP(s). The plea of OP(s) for entitlement of compensation to the complainant in accordance with provisions of the ABA is not valid.
This Commission in various CCs, against the same OP, involving similar/identical facts, keeping in view the submissions of counsel of the parties regarding rate of interest, have allowed refund to the concerned complainant along with interest @ 8%. During the argument, the counsel for Complainant in the present cases also relied upon some of these earlier judgements of this commission. Hence in the present cases also the interest is restricted @ 8%.
For the reasons stated hereinabove, and after giving a thoughtful consideration to the entire facts and circumstances of the case, various pleas raised by the learned Counsel for the Parties, the Consumer Complaint is allowed/disposed off with the following directions/reliefs: -
The OP(s) shall refund the entire principal amount of Rs. 62,87,441/- (Rupees Sixty Two Lakhs Eighty Seven Thousand Four Hundred and Forty One only) to the complainant, alongwith compensation in the form of simple interest @ 8% per annum from the date of each payment till the date of refund. The principal amount refundable mentioned in this para is subject to verification of actual amount paid by the complainant based on receipts etc. The OP(s) shall pay a sum of Rs.25,000/- as cost of litigation to the complainants.
The liability of the OP(s) shall be joint as well as several.
(iv) The payment in terms of this order shall be paid within three months from today.
(v) In case the complainant has/have taken loan from Bank(s)/other financial institution(s) and the same/any portion of the same is still outstanding, the refund amount will be first utilized for repaying the outstanding amount of such loans and balance will be retained by the complainant. The complainant would submit the requisite documents from the concerned bank(s)/financial institution(s) to the OP(s) four weeks from receipt of this order to enable them to issue refund cheques/drafts accordingly.
The pending IAs, in the Consumer Complaint, if any, also stand disposed off.
Annexure-A Details of the Unit and other related details Sr No Particulars 1 Project Name/Location etc. "RISE", situated in RP City, Sector 37-D, Gurgaon, Haryana 2 Apartment no.
D - 1003 3 Size (Built up/Covered/Super Area) 1765 sq.ft.
4Date of signing Agreement (ABA) 04.08.2012 5 Committed date of possession as per Agreement (with Grace period of 120 days) 01.01.2016 6 Total Consideration as per agreement Rs. 79,71,112/-
7Amount Paid Rs. 62,87,441/-
8D/o Filing CC in NCDRC 26.03.2018 9 D/o Issue of Notice to OP 10.09.2018 10 D/o Filing Reply/Written Statement by OP-1 11.07.2018 11 D/o Filing Reply/Written Statement by OP-2 12.07.2018 12 D/o Filing Reply/Written Statement by OP-5 20.08.2019 13 D/o Filing Rejoinder by the Complainant 20.08.2019 14 D/o Filing Evidence by way of Affidavit by the Complainant 20.08.2019 15 D/o Filing Evidence by way of Affidavit by the OP-1 16.07.2019 16 D/o Filing Evidence by way of Affidavit by the OP-2, OP-3, OP-4, OP-6 23.07.2018 17 D/o Filing Evidence by way of Affidavit by the OP-5 17.03.2020 18 D/o filing Written Synopsis by the Complainant 25.07.2022 19 D/o filing Written Synopsis by the OP-1 18.01.2023 ......................J RAM SURAT RAM MAURYA PRESIDING MEMBER ...................... DR. INDER JIT SINGH MEMBER