National Consumer Disputes Redressal
Jitendra Pal vs M/S. Chd Developers Ltd. on 26 November, 2019
Author: R.K. Agrawal
Bench: R.K. Agrawal
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 3775 OF 2017 1. RAJNISH BHARDWAJ S/O SH.M.L BHARDWAJ,
R/O 204-B, DDA MIG FLAT,
RAJOURI GARDEN NEW DELHI - 110027 ...........Complainant(s) Versus 1. M/S. CHD DEVELOPERS LTD. THROUGH ITS AUTHORIZED REPRESENTATIVES,
HAVING ITS REGISTERED OFFICE AT,
SF-16-17, FIRST FLOOR, MADAME BHIKAJI CAMA BHAWAN, BHIKAJI CAMA PLACE, NEW DELHI - 110066 ...........Opp.Party(s) CONSUMER CASE NO. 3776 OF 2017 1. ANIL KUMAR S/O SH.S.P GUPTA,,
R/O FLAT NO-904, TOWER NO-2, PARK VIEW RESIDENCY, PALAM VIHAR, GURGAON HARYANA ...........Complainant(s) Versus 1. M/S. CHD DEVELOPERS LTD. THROUGH ITS AUTHORIZED REPRESENTATIVES, HAVING ITS REGISTERED OFFICE AT, SF-16-17, FIRST FLOOR, MADAME BHIKAJI CAMA BHAWAN, BHIKAJI CAMA PLACE,
NEW DELHI - 110066 ...........Opp.Party(s) CONSUMER CASE NO. 3810 OF 2017 1. JITENDRA PAL S/O MR.R.S SINGH,
R/O B-201, JOYKUNJ APARTMENTS, SECTOR-56 GURGAON HARYANA - 122001 ...........Complainant(s) Versus 1. M/S. CHD DEVELOPERS LTD. REGISTERED OFFICE AT. SF-16-17, FIRST FLOOR,MADAME BHIKAJI CAMA BHAWAN,
BHIKAJI CAMA PLACE NEW DELHI - 110066 ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT HON'BLE MRS. M. SHREESHA,MEMBER
For the Complainant : For the Opp.Party :
Dated : 26 Nov 2019 ORDER
(Pronounced on 26th_day of November, 2019)
R.K. AGRAWAL, J., PRESIDENT
1. All these Consumer Complaints, under Section 21(a)(i) read with Section 22 of the Consumer Protection Act, 1986 (for short "the Act"), have been filed by the Complainants, the allottees of Residential Flats/Apartments in a Group Housing Project, namely, "106 Golf Avenue" (for short "the Project"), to be developed and constructed by the Opposite Party in Sector 106, Gurgaon, Haryana, seeking injunctive relief and compensation for the losses suffered by them on account of Unfair and Restrictive Trade Practices adopted and the deficient services rendered by the Opposite Party in not handing over the possession of the allotted Flats/Apartments within the stipulated time.
2. All the Complainants have entered into identical "Agreements to Sell'/"Flat Buyer Agreements" with the Opposite Party; the facts and question of law involved in their cases are similar, inasmuch as physical possession of the allotted Flats, has not been handed over within the committed period and almost similar reliefs have been prayed for by all the Complainants.
3. For the sake of convenience, the material facts, enumerated hereinafter, are taken from the Consumer Complaint No. 3775 of 2017 titled as Rajnish Bhardwaj Vs. M/s. CHD Developers Limited.
4. The brief facts as stated in the Complaint are that allured with the advertisements and the various lucrative representations made by the Officials and Brokers of the Opposite Party that the houses in the Project will be delivered within a period of 42 months, the Complainant applied on 26.11.2012 for allotment of an Apartment in the Group Housing Scheme launched by M/s CHD Developers Ltd., known as "106 Golf Avenue" in Sector 106, Gurgaon, Haryana. On 31-01-2013, an Apartment Buyer's Agreement was executed between the parties and the Complainant was allotted an Apartment/Unit No. T01-09/03, Tower No.01 having Saleable Area of 1633 sq. ft. and Built Up Area of 1342 sq ft. in the said Project. The total sale consideration payable by the Complainant was ₹1,13,20,795/-, out of which the Complainant paid a sum of ₹1,04,50,559/- to the Opposite Party. It is stated that as per Clause 13 of the Buyer's Agreement, the Complainant was assured that the possession of the Apartment would be delivered by 30-07-2016 that is within 42 months from the date of signing of the Agreement.
5. It is averred that though the booking and allotment of the Flats/Apartments in the Project was over, the Brokers of the Opposite Party introduced the proposed buyers with the original Allottees for resale of the houses. The buyers were assured by the Opposite Party that the construction will be completed within the promised time and date of possession as committed to the original Allottees in Buyer's Agreement will remain unchanged. After negotiations with the Broker and the Original Allottee, the sale consideration to be paid by the proposed buyer was decided and paid to the Original Allottee along with Broker's Commission. The Opposite Party transferred the respective Apartments in the name of resale buyers after receiving the transfer charges and an acknowledgement letter was issued to the resale purchasers authenticating the transfer. It is stated that at the time of applying for Apartment and payment of Application money, the Buyer's Agreement was not shown to the Complainant and some of the clauses of the Buyer's Agreement were one sided and totally unreasonable which were in favour of the Opposite Party. There was also a gap of substantial period between the date of application and signing of Buyer's Agreement. It is pleaded that despite having paid the entire amount demanded by the Opposite Party on time and making several requests through letters, emails and phone calls, the Opposite Party has failed to fulfill its promise to deliver the possession of the allotted Apartment to the Complainant till the date of filing of the present Complaint. On several occasions, the Complainant has visited the construction site but was shocked to find out that the construction was never in progress and no one was present at the site to answer the queries of the Complainant. The site was looking an abandoned piece of land with only a skeleton structure of semi constructed building. It is pleaded that as per Clause 13 of the Buyer's Agreement, it was agreed by the Opposite Party that in case they are not able to hand over the possession to the Complainant within the grace period of six months, the Opposite Party shall pay to the Complainant compensation, at the rate of ₹10/-per sq. ft. per month the for the period of delay and if the said amount is calculated in terms of financial charges, it comes to approximately @ 1.4% p.a only. It is alleged that the Opposite Party has found a cheap source of funding the commercial Projects from the hard earned savings and borrowed money of innocent Apartment Buyers. Further, as per Clause 8, of the Buyer's Agreement, if there is any amount due from the Complainant, the Opposite Party would charge interest @ 18% p.a. on the said amount. The Opposite Party has collected the substantial amount for providing the common areas, parks, roads, boundary wall, security gates, generator sets, parking etc. in advance. No reason has been communicated to the Complainants despite repeated requests about the status of Construction and the Opposite Party is not in a position to give the committed date of handing over of possession. Same is the grievance of the Complainants in other Complaints.
6. It is pleaded in the Complaints that the buyers are suffering from tremendous financial losses as they have invested their hard-earned moneys, lifetime's savings and in some of the cases, the Complainants have taken Loan from the Financial Institutions and paying huge EMIs. The Opposite Party has miserably failed in delivering the possession within the promised time period, which squarely falls within the ambit of definition of "deficiency of services" and "Unfair Trade Practices" as defined under the Consumer Protection Act 1986, and hence Complainants deserve to be adequately compensated. Complainants have lost all faith in the Project of the Opposite Party and do not now wish to reside in such a defective building even if the Opposite Party delivers the possession of the same to them in the near future. Hence, the Complainants have filed these complaints seeking refund of the amount paid along with interest @ 18% p.a. and compensation of ₹5,00,000/- towards mental agony and harassment. However, in the Complaint No. 3810 of 2017, the Complainant has sought a direction to the Opposite Party to hand over the possession of the Apartment, complete in all respect, along with 18% interest on delayed period of possession or alternatively to refund the deposited amount with interest @ 18% p.a. and pay ₹10,00,000/- as compensation for mental harassment, rental accommodation and EMIs on housing loan and Rs.1,00,000/- towards litigation costs.
07. Upon notice, the Opposite Party has contested the Complaints by filing its reply on almost identical grounds. The Preliminary Objections have been raised that; (i) the Complainants are not the "Consumers" as defined under Section 2(1)(d)(i) of the Act inasmuch as the Property was purchased for the purpose of investment/re-sale/speculation; (ii) some of the Complainants have made the inflated claims to bring the Complaint within the pecuniary jurisdiction of this Hon'ble Commission; and (iii) Complainants in Complaint Nos. 3776 & 3810 of 2017 are not the original alottees of the flat and resale of flat does not come within the purview of the Act;
08. On merits, it is, inter-alia, contended that; in Clause 13 of the Apartment Buyer's Agreement, the time was not an essence and period for delivery of possession was tentative and was subject to Force Majeure events, court indulgence etc.; the delay in handing over possession was due to reasons beyond the control of the Opposite Party; in Clause 13 of the Agreement, a provision was also made for payment of compensation to the Complainant in case of delay in delivery of possession; the construction at the Project site is complete and only the interior and finishing work is required to be completed which is already in progress; the construction activities were required to be stopped during the period from May 2015 to August 2015 on receiving a letter No. HSPCB/GRN/2015/516 dated 01.05.2015 from the Regional Office North, Haryana State Pollution Control Board informing that Vide order dated 07.04.2015 and 10.04.2015 in Original Application No.21 of 2014 titled as "Vardhaman Kaushik Vs. Union of India" the Hon'ble National Green Tribunal, New Delhi has taken serious views regarding pollution emanating from construction and other allied activities due to dust emission; on 10.11.2017, the office of the District Town Planner Enforcement has again directed to stop all construction activities; no Broker was authorized by the Opposite Party for resale of the property; there was no one-sided or unreasonable clause in the Agreement and the Complainants have signed the same with their free will without any undue influence; there was no substantial period gap between the date of application and signing of Buyer's Agreement; the Complainants were made aware of the status of the work/construction from time to time; the Complainants have defaulted in making the payments on time; the amount paid by the Complainants was utilized only in the construction work of the Towers in the Project and not for any other purpose; no amount was collected for any work which was yet to be started; no act of Unfair Trade Practice and Restrictive Trade Practices and deficiency in service was committed by the Opposite Party; Complainants are not entitled for refund of the amount paid by them as the same has been used in carrying out the construction activities; because of the severe slump in the Real Estate prices, the Complainants are not interested to take possession of the allotted Units and hence seek refund; Complainants are not entitled for any relief as claimed in the prayer clause;
09. The Opposite Party has denied all the allegations made in the Complaints and prayed dismissal of the Complaints with exemplary costs.
10. During the proceedings of the Complaints, the Opposite Party has filed I.A.Nos. 11781 to 11784 of 2019 seeking amendment in the Written Statement on the ground that Haryana Real Estate Regulatory Authority has granted HARERA Registration Certificate No.08 of 2019 dated 21.02.2019 with respect to the Project, namely, "106 Golf Avenue" which is valid from 21.02.2019 to 30.06.2021 and as such the Opposite Party has been granted time period of 30.06.2021 for completion of the Project.
11. We have heard the Learned Counsel appearing for the parties at some length and also perused the material available on record as well as the Written Arguments.
12. In brief, it is the case of the Complainants that despite being paid the substantial amount towards the total sales consideration of the allotted Unit to the Opposite Party, they have miserably failed to hand over the possession of the Unit, complete in all respect, within the stipulated time as promised in Clause 13 of the Apartment Buyer's Agreement and hence they are entitled for refund of the deposited amount with interest and reasonable compensation.
13. The first contention of the Learned Counsel for the Opposite Party that the Complainants are not "Consumers" and only "investors" is not supported by any documentary evidence. In a catena of judgments, this Commission has laid down that the onus of proof shifts to the Opposite Party to prove that the Complainant is "investor" and it is observed that the Opposite Party did not discharge their onus of proof regarding this aspect. Hence, we are of the considered view that the Complainants are "Consumers" as defined under Section 2 (1) (d) of the Consumer Protection Act, 1986.
14. With regard to the second contention of the Learned Counsel for the Opposite Party that this Commission does not have pecuniary Jurisdiction to entertain the Complaints as the claims made by some of the Complainants are inflated, a larger Bench of this Commission in the case of "Ambrish Kumar Shukla & Ors. Vs. Ferrous Infrastructure Private Limited - I (2017) CPJ 1 NC" has decided this issue and held that pecuniary Jurisdiction should be construed considering the total value and goods and services in addition to the compensation prayed for. The Complainants in the present Complaints, have sought refund of the amount paid along with damages by way of interest @ 18% p.a., compensation of ₹5,00,000/- and other reliefs which total goes beyond One Crore and definitely comes within the pecuniary Jurisdiction of this Commission. Hence, this contention of the Opposite Party is also rejected.
15. So far as the issue raised by the Opposite Party that the Complainants are not the original allottees of the flat and resale of flat does not come within the purview of this Act, is concerned, in our view, having issued the Re-allotment letters on transfer of the allotted Unit and endorsing the Apartment Buyer's Agreement in favour of the Complainants, this plea does not hold any water.
16. As far as the contention of the Opposite Party that the Complainants did not adhere to the payment schedule and defaulted in making payments is concerned, the said default was condoned by the Opposite Party by charging interest from them. Having charged interest for the said delay and having condoned the default instead of cancelling the allotment, the Opposite Party, in our view, cannot deny refund with compensation on account of the aforesaid condoned defaults. Even if, some of the Complainants have defaulted in making the payments to the Opposite Party, the Complainants who admittedly did not commit any default cannot be penalized for the default on the part of the other buyers. This is more so when there is delay in completing the construction and handing over the physical possession.
17. The stand taken by the Opposite Party that the period of delivery of possession in 42 months as defined in Clause 13 of the Apartment Buyer's Agreement is not sacrosanct as it is stated in the said Clause that the "physical possession of the said Apartment is proposed to be delivered by the Company to the allottee within 42 months from the date of execution of the Agreement" and, therefore, time is not the essence of the contract and the delay is attributable to Force Majeure events, and, therefore, no deficiency of service can be attributed to them, is totally unsustainable, as the Opposite Party could not establish by means of any documentary evidence that the Project was delayed due to Force Majeure events. It is stated by the Opposite Party that the construction work was stopped during the period from May 2015 to August 2015, i.e. only four months, due to a letter received from the Haryana State Pollution Control Board informing them that the Hon'ble National Green Tribunal has passed an order taking serious view regarding pollution emanating from construction and other allied activities due to dust emission. Except this, no other ground has been taken by the Opposite Party for delay in construction and in our view such a ground cannot be termed, by any stretch of imagination to be a "force majeure event".
18. As per the Apartment Buyer's Agreement which were executed between December 2012 to March 2013 in these Complaints, the possession of the allotted Units, complete in all respect, was promised to be delivered within 42 months from the date of execution of the respective Agreement with the grace period of six months i.e. in any case in March 2017. However, the Complainants are still waiting for possession. If a Builder/Developer fails to deliver possession of the flat/apartment booked with them, within the time period committed for this purpose and has failed to file documentary evidence to justify the delay in construction or handing over the possession, this, in our opinion, would tantamount to a defect or deficiency in the services rendered by them to the buyers and in such a situation, this Commission exercising the powers conferred upon it by the Act, would be competent to direct refund of the amount paid by the buyers to the Builder, along with appropriate compensation for the loss or injury suffered by the buyers on account of delayed possession.
19. The Complainants are not willing to take possession of the allotted Units as according to them, there is no possibility of completion of the project in the near future. Even the Haryana Real Estate Regulatory Authority has granted the Registration Certificate to the Opposite Party valid upto 30.06.2021 to complete the Project. In the case of Emmar MGF Land Ltd. & Ors. vs. Amit Puri - [II (2015) CPJ 568 NC], this Commission has held that after the promised date of delivery, it is the discretion of the Complainant whether to accept the offer of possession, if any, or to seek refund of the amounts paid by him with some reasonable compensation and it is well within his right to seek for refund of the principal amount with interest and compensation as the construction is still not complete. In the matter of Mrs. Anila Jain Vs. Emaar MGF Land Ltd. - Consumer Complaint No. 2208 of 2017 decided on 11.11.2019, the Coordinate Bench of this Commission confirming the said view of the Commission has observed as under:-
" In any case, the complainant cannot be compelled to accept possession when it is offered after such a long period of say at least three years from the timeline stipulated for this purpose, in the agreement executed between the parties. A reference in this regard can be made to the decision of the Hon'ble Supreme Court in Civil Appeal No. 12238 of 2018 Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan & Connected Matter decided on 02.04.2019 and the decision of the Hon'ble Supreme Court in Civil Appeal No. 3182 of 2019 Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra decided on 25.03.2019, in support of his contention that in a case of an unreasonable delay in offering possession of the allotted flat, the consumer cannot be compelled to accept possession at a belated stage and is entitled to seek refund of the amount paid by him to the builder with compensation.
20. The Hon'ble Apex Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, - II (2019) CPJ 34 (SC), has observed as follows:-
"6.7. A terms 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 contractual terms of the Agreement dated 08.05.2012 are ex-facie one sided, unfair and unreasonable. The incorporation of such one-sided clauses in an agreement constitutes 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 the flats by the Builder.
7. In view of the above discussion, we have no hesitation in holding that the terms of the Apartment Buyer's Agreement dated 08.05.2012 were wholly one-sided and unfair to the Respondent-Flat Purchaser. The Appellant-Builder cannot seek to bind the Respondent with such one-sided contractual terms."
21. Further, in the case of Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra - II (2019) CPJ 29 SC, the Hon'ble Apex Court has observed as under :-
".....It would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession. By 2016, nearly seven years had elapsed from the date of the agreement. Even according to the developer, the completion certificate was received on 29 March 2016. This was nearly seven years after the extended date for the handing over of possession prescribed by the agreement. A buyer can be expected to wait for possession for a reasonable period. A period of seven years in beyond what is reasonable. Hence, it would have been manifestly unfair to non-suit the buyer merely on the basis of the first prayer in the reliefs sought before the SCDRC. There was in any event a prayer for refund.
In the circumstances, we are of the view that the orders passed by the SCDRC and by the NCDRC for refund of moneys were justified."
22. For the reasons stated above, we are of the opinion that in the present case also, the Complainants cannot be asked to wait indefinitely for the delivery of possession in the absence of a committed date and the act of the Opposite Party in relying on Force Majeure clause while enjoying the hard earned money of the Complainants for a long period of about seven years without any valid reason, is not only an act of deficiency of service but also amounts to Unfair Trade Practice, more pertinently when the Opposite Party charge interest @ 18% p.a. for any delay in the payments on the part of Buyers and offers compensation only of ₹10/- per Sq. Ft. per month for the period of delayed possession, which comes to approximately 1.4% p.a. Undisputedly, such terms in Clauses are extremely unfair and one sided and fall within the definition of 'Unfair Trade Practice' as defined under Section 2(r) of the Act.
23. It is trite that although the word 'Compensation' is not defined in the Act, but it is of very wide connotation. It not only constitutes actual loss or expected loss, it may extend to mental or even emotional sufferings. In Lucknow Development Authority v. M.K. Gupta - (1994) 1 SCC 243, explaining the width and scope of the powers invested in the Consumer Fora under the Act, the Hon'ble Supreme Court has observed that the Commission has been vested with jurisdiction to award value of goods or services and determine compensation for any loss or damage suffered by a consumer, which in law is otherwise included in the wide meaning of compensation. The Consumer Fora is entitled to award not only the value of the goods or services but also to compensate a Consumer for the injustice suffered by him due to deficiency in service in sale of goods or rendering of service, as the case may be.
24. Keeping in view the observations of the Hon'ble Apex Court in a catena of judgments with respect to awarding compensation/interest, the current market situation, the lower rate of interest being charged by the Banks on loans, interest rates by the Banks on FDRs and remarkable downfall in the values of Real Estate in the market, we are of the opinion that awarding interest @ 18% p.a. as prayed for by the Complainant is on the higher side and hold that the Complainants are entitled to the refund of the amount deposited by them with compensation by way of interest @ 12% p.a. from the respective dates of deposits till the date of realization in addition to reasonable costs.
Consumer Complaint No.3775 of 2017
25. As stated above, the Complainant entered into an Apartment Buyer's Agreement on 31.01.2013 and was allotted Apartment No. T01-09/03 admeasuring 1342 Sq. Fts. He paid an amount of ₹1,04,50,559/- and the promised date of delivery was 30.07.2016. For all the aforenoted reasons, this Complaint is allowed in part and the Opposite Party is directed to refund the amounts paid with interest @ 12 % p.a. from the respective dates of deposit till the date of realization together with costs of ₹25,000/- to be paid to the Complainant, within a period of four weeks from the date of receipt of a copy of this order, failing which the amount shall carry interest @ 14% p.a. for the same period.
Consumer Complaint No.3776 of 2017
26. Complainant in this case entered into an Apartment Buyer's Agreement on 02.03.2013 and was allotted Apartment No. T03-06/04 admeasuring 1546 Sq. Fts. He paid an amount of ₹68,98,133/- and the promised date of delivery was 02.09.2016. For all the aforesaid reasons, this Complaint is allowed in part and the Opposite Party is directed to refund the amounts paid with interest @ 12 % p.a. from the respective dates of deposit till the date of realization together with costs of ₹25,000/- to be paid to the Complainant, within a period of four weeks from the date of receipt of a copy of this order, failing which the amount shall carry interest @ 14% p.a. for the same period.
Consumer Complaint No. 3810 of 2017
27. M/s. Tinkle Bells Electronics Pvt. Ltd. applied for booking of an Apartment with the Opposite Party and allotted Apartment No. 106-T01-12/03 admeasuring 1633 St. Ft. The Apartment Buyer's Agreement was executed on 14.12.2012. Before executing the Agreement they paid a sum of ₹15,18,690/- to the Opposite Party and the promised date of possession was 15.06.2016. In August 2014, the Complainant purchased the said Apartment from them and the Opposite Party was informed about the transfer. The Apartment was re-allotted in the name of the Complainant by the Opposite Party and an amount of ₹27,63,048.10 was credited in his account. As averred in the Complaint, the Complainant has paid an amount of ₹87,68,583.28 to the Opposite Party. For all the reasons stated above, this Complaint is partly allowed and the Opposite Party is directed to refund the amounts paid with interest @ 12 % p.a. from the respective dates of deposit till the date of realization together with costs of ₹25,000/- to be paid to the Complainant, within a period of four weeks from the date of receipt of a copy of this order, failing which the amount shall carry interest @ 14% p.a. for the same period.
Consumer Complaint No.3776 of 2017
28. Complainant in this case entered into an Apartment Buyer's Agreement on 01.02.2013 and was allotted Apartment No. 106-T07-15/01 admeasuring 1183 Sq. Fts. He paid an amount of ₹79,23,765/- and the promised date of delivery was 01.06.2016. The Complaint is partly allowed for the aforesaid reasons and the Opposite Party is directed to refund the amounts paid with interest @ 12 % p.a. from the respective dates of deposit till the date of realization together with costs of ₹25,000/- to be paid to the Complainant, within a period of four weeks from the date of receipt of a copy of this order, failing which the amount shall attract interest @ 14% p.a. for the same period.
29. The Complaints stand disposed of.
30. Before parting, we may make it clear that the interest @12% p.a. on the refund of the amount which has been awarded as compensation and not factually as interest on refund and, therefore, there is no question of deducting any tax on source.
......................J R.K. AGRAWAL PRESIDENT ...................... M. SHREESHA MEMBER