State Consumer Disputes Redressal Commission
Nagneet Saran vs M/S Ats Estates Pvt.Ltd. & Others on 6 February, 2023
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
Consumer Complaint No.6 of 2021
Date of institution : 29.01.2021
Reserved On : 13.12.2022
Date of decision : 06.02.2023
Mr. Nagneet Saran son of Mr. Amarjeet Singh, resident of Flat No.503,
Tower-2, Highland Park, near Air Force Highground, Zirakpur Patiala
Highway, Zirakpur, District S.A.S. Nagar, Mohali.
E-mail ID:[email protected]
....Complainant
Versus
1.M/s ATS Estate Private Limited, having its site office at 'ATS Golf Meadows', Derabassi, District S.A.S. Nagar (Mohali) through its Managing Director/Authorized Officer/Branch Officer. E-mail ID:[email protected]
2. M/s ATS Estate Private Limited, having its Corporate Office at ATS Tower, Plot No.16, Sector 135, NOIDA, through its Managing Director/Authorized Officer.
E-mail ID:[email protected]
3. Mr. Geetamber Anand, Managing Director, M/s ATS Estate Private Limited, having its Corporate Office at ATS Tower, Plot No.16, Sector 135, NOIDA.
E-mail ID:[email protected]
4. Housing Development Finance Corporation Limited, having its Registered Office at Raman House, 169, Backbay Reclamation, Mumbai and having its Branch Office at HDFC Limited, SCO 153-154, Madhya Marg, Sector 8-C, Chandigarh-160008. E-mail ID:[email protected] ....Opposite Parties Consumer Complaint under Section 47 read with Section 49(2) of the Consumer Protection Act, 2019 for setting aside the terms and conditions of the Buyer's Agreement/contract dated 28.06.2016 as null and void.
Consumer Complaint No.6 of 2021 2Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President
1) Whether Reporters of the Newspapers may be allowed to see the Judgment? Yes/No
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported in the Digest? Yes/No Present:
For the complainant : Sh. Sandeep Khunger, Advocate For OPs No.1 to 3 : Sh. S.S. Bedi, Advocate For OP No.4 : Ms. Neetu Singh, Advocate.
JUSTICE DAYA CHAUDHARY, PRESIDENT By this order of mine, the four (4) complaints i.e. Consumer Complaint No.6 of 2021, Consumer Complaint No.12 of 2021, Consumer Complaint No.16 of 2021 and Consumer Complaint No.17 of 2021 shall be disposed off as the questions of facts and law involved in all the complaint are the same and the complaints have been preferred by the complainant(s) against the same opposite parties. However, the facts are being extracted from Consumer Complaint No.6 of 2021.
Consumer Complaint No.6 of 2021
2. The complainant namely Mr. Nagneet Saran has filed the present complaint under under Section 47 read with Section 49(2) of the Consumer Protection Act, 2019 (in short, "the Act") with the prayer to declare the terms of Buyer's Agreement dated 28.06.2016 to be null and void being unfair to the interest of the complaint and to set aside the agreement.
3. Briefly, the facts of the case, which are necessary for Consumer Complaint No.6 of 2021 3 reaching to the conclusion by considering the stand taken by the complainant in the complaint and also the stand of the opposite parties as given in their replies, are that the complainant was working in Kuantum Paper Ltd., Chandigarh having its office in Industrial Area Phase-1, Chandigarh. He was in need of a residential apartment stating that he was not having any house or flat in his name and was residing in a rented accommodation along with two minor children. He was in search of a suitable residential flat for him and his family. There was an advertisement in newspaper, which was got published at the instance of M/s ATS Estates Pvt. Ltd. (opposite parties No.1 to 3) regarding launching of an integrated residential township after purchasing a chunk of 300 acres of land situated in village Madhopur, Tehsil Derabassi, District Mohali. It was also claimed by opposite parties No.1 to 3 that the said township was being set up after obtaining necessary approvals of local authorities and Chief Administrator, GMADA etc. Further, it was mentioned that all the necessary formalities including clearances were completed and sanction was also accorded for setting up the integrated township. The project was in the name and style of 'ATS Gold Meadows Life Style'.
At the time of booking, it was informed that the flat shall be completed and the possession would be offered to the complainant within a period of 42 months from the date of booking. By considering the assurances, the complainant booked a flat and total amount of ₹8,40,058/- was paid i.e. ₹5,65,000/-, ₹2,00,000/- and ₹75,058/- through cheques/NEFT. Out of said amount, some amount was paid at Consumer Complaint No.6 of 2021 4 the time of booking and some thereafter. After receiving the said amount, a 'Buyer's Agreement' dated 28.06.2016 (Ex.C-3) was also executed between the complainant and opposite parties No.1 to 3, wherein the total sale consideration of the flat was mentioned as ₹48,50,000/-. Clause-14 was added, wherein it was mentioned that the possession of the flat was to be delivered to the complainant within a period of 42 months with the grace period of 6 months from the date of actual start of construction of a particular tower/building. As per Clause-6 of the said agreement, in case of delay in paying the amount, opposite parties No.1 to 3 were to charge interest at the rate of 18% per annum on the due amount. Vide Clause-15, it was stipulated that in case of delay in delivery of possession of the flat, opposite parties No.1 to 3 were liable to pay only an amount of ₹5/- per sq.ft. of super area per month and in case the allottee was to quit on the ground of delay, the Company was to refund the amount so paid by the allottee within a period of 90 days from the date of re-sale of the apartment to third party.
4. It has also been mentioned in the complaint that the complainant was not to change or alter any clause/condition of the agreement and was to sign on the dotted lines of pre-printed agreement. The complainant was not having any choice and any other option except to sign the pre-printed agreement with the terms and conditions suitable to the builder. The terms and conditions being totally unfair to the interest of the complainant are liable to be declared null and void. Further, it has been mentioned that the complainant was Consumer Complaint No.6 of 2021 5 not having any ready cash and he had to obtain loan of ₹38,80,000/- from Housing Development Finance Corporation (HDFC) Ltd. with interest at the rate of 9.45%. There was a Tripartite Agreement dated 28.06.2016, which was executed between the complainant, opposite parties No.1 to 3 and HDFC Ltd. (opposite party No.4). After execution of said Tripartite Agreement, an amount of ₹15,59,034/- was disbursed through cheque dated 30.06.2016 in favour of opposite parties No.1 to 3. It has been further mentioned that the complainant kept on paying ₹9,730/- per month towards principal amount for a period of 3 years and on the expiry of period of 3 years, he was to pay an amount of ₹11,954/- per month as EMI. However, HDFC Ltd. had illegally reflected an amount of ₹1,08,908/- as internal adjustment in the Statement of Account without giving any details of said amount whereas an amount of ₹15,59,034/- was disbursed to the builder through cheque on 30.06.2016 but in the loan account of the complainant, the disbursed amount was reflected to be ₹16,67,942/-. The copy of Home Loan Agreement dated 30.06.2016 is Ex.C-6 and copies of Statement of Account for the period 01.04.2016 to 07.01.2021 are Ex.C-7 (colly.).
5. It has further been mentioned that the complainant visited the office of the opposite parties to inquire about the possession of the flat but was informed that it would be delivered very soon. An assurance was given that the construction would be started very soon but there was no progress and even the foundation of Tower No.10 was not laid. The complainant requested opposite parties No.1 to 3 to Consumer Complaint No.6 of 2021 6 refund the amount so paid by him along with interest. A legal notice dated 15.10.2019 was also served upon the opposite parties but still nothing was done. Various emails were exchanged but neither the possession of the flat was delivered nor the amount was refunded.
6. Stating it to be a case of 'unfair contract' as per provisions of Section 2 (46) of the Act, 'unfair trade practice' and 'deficiency in service', the complaint was filed with the following prayer:
i) To declare the terms and conditions of the Buyer's Agreement dated 28.06.2016 as null and void being unfair to the interest of the complainant;
ii) Opposite parties No.1 to 3 be directed to refund an amount of ₹23,99,092/- paid by the complainant as well as HDFC Ltd. from the loan account of the complainant;
iii) Opposite parties No.1 to 3 be directed to pay interest at the rate of 18% per annum from the respective dates of deposit by the complainant as well as HDFC Ltd. from his loan account;
iv) Opposite party No.4-HDFC Ltd. be directed to reverse the amount of ₹1,08,908/- along with interest, shown as internal adjustment in the Statement of Account without giving any detail of the said amount or in the alternative opposite parties No.1 to 3 be directed to pay the said amount of ₹1,08,908/- along with interest at the rate of 18% per annum
v) Grant compensation of ₹5 lac for causing inconvenience, mental harassment and damages to the complainant due to 'deficiency Consumer Complaint No.6 of 2021 7 in service' on the part of opposite parties No.1 to 3;
vi) to pay ₹1 lac towards costs of litigation, documentation charges, representation, legal notice etc.
vii) Any other relief to which the complainant is found entitled to under the facts and circumstances of the case be also granted;
and
viii) to pay the cost of complaint.
7. Upon issuing notice in the complaint, the opposite parties appeared through counsel. Opposite parties No.1 to 3 filed joint reply, whereas opposite party No.4 filed separate reply to the complaint.
8. Opposite parties No.1 to 3 raised certain preliminary objections in their reply stating therein that that the complainant has not approached this Commission with clean hands, as certain material facts have been concealed and all efforts have been made to mislead this Commission. Further it has been mentioned that the complaint is barred by limitation as per the provisions of the Act as limitation to file the complaint had already expired in the year 2018. Further it has been mentioned that the compliant has been filed under Section 47 read with Section 49 (ii) of the Act and the validity of Clause-14 of the agreement which was executed on 28.06.2018 has been challenged. Moreover, the complainant being aware of all the clauses has signed the agreement after going through all the terms and conditions but after a period of approximately 4 years and 9 months, the complaint has been filed to declare the terms of the agreement to be null and void. Further an objection has been raised in the reply that the Consumer Complaint No.6 of 2021 8 complaint is beyond the pecuniary jurisdiction of this Commission as the amount involved in this case is approximately ₹26 lac, whereas the State Commission has the jurisdiction to entertain and decide the cases, where the amount involved is more than ₹1 Crore (now more than ₹50 lac). Therefore, the jurisdiction lies with the District Commission only. Further an objection has been raised is that the complainant is not covered under the definition of 'consumer' and the property was purchased for earning profits for commercial purpose. It has further been mentioned that in case of violation of the contractual obligations, such dispute is required to be dealt with by the Arbitrator in accordance with the terms of the agreement. It has further been mentioned that the complaint is also liable to be dismissed on the ground that as per terms of the agreement, both the parties have agreed to exclude the jurisdiction of all other Courts except the Courts at Noida. The other averments made in the complaint have specifically been denied parawise.
9. Opposite party No.4 in its separate reply has also raised certain preliminary objections regarding pecuniary jurisdiction of this Commission to entertain and try the complaint etc. It has also been mentioned that the complainant has been irregular in repaying the loan amount, which is clear from the Account Statement Annexure OP-4/2 and opposite party No.4 has a right to proceed in accordance with the terms and conditions of the Loan Agreement in case of default. An amount of ₹16,67,942/- is still outstanding and recoverable by opposite party No.4.
Consumer Complaint No.6 of 2021 9
10. Rejoinder to the reply filed by opposite parties No.1 to 3 has also been filed by the complainant, wherein the preliminary objections raised by opposite parties No.1 to 3 have been denied and efforts have been made to prove that the compliant was not barred by limitation in view of judgment in the case of Smt. Madhvi Sinha & Anr. v. Gaursons Realtech Pvt. Ltd. (CC No.235 of 2020) decided on 02.03.2021. In such like cases, the cause of action is recurring as till date as neither the construction has been completed nor the actual and legal physical possession has been offered/delivered. Other pleas taken by opposite parties No.1 to 3 have also been controverted. It has further been mentioned that the copies of cheques/receipts regarding deposit of ₹8,40,058/- have been produced on record, which have not been denied by opposite parties No.1 to 3.
11. Parties have led their respective evidence in support of their contentions.
12. Mr. Sandeep Khunger, learned counsel for the complainant has vehemently argued that opposite parties No.1 to 3 have failed to develop the project and deliver possession of the flat in question along with complete development and Completion Certificate within the stipulated period despite receipt of substantial amount from the complainant. The complainant has requested them to deliver possession of the flat so many times but no effect. They have utilized the amount so deposited by the complainant for their own purpose without bothering to complete the project and to deliver possession of the flat to the complainant. Opposite parties No.1 to 3 have also failed Consumer Complaint No.6 of 2021 10 to obtain the requisite approvals/sanctions from the competent authorities prior to setting up the project. It has been further submitted that the prayer for declaring the terms of contract(s), as unfair, null and void, has been made as only the State Commissions and Hon'ble National Commission has power to adjudicate this type of dispute. Therefore, this Commission has territorial and pecuniary jurisdiction to try and adjudicate the present complaint. Learned counsel has also made reference to various clauses of the agreement as mentioned above and has submitted that said terms are unfair and the agreement/contract is required to be declared null and void. Learned counsel has further submitted that no opportunity was afforded to the complainant to read and go through the contents of agreement. At the end, learned counsel has submitted that the terms of the contract are unilateral, unfair and detrimental to the interest of the complainant and be declared null and void. The opposite parties have committed 'deficiency in service' and have also indulged in 'unfair trade practice' and the complainant is entitled to all the reliefs as prayed for in the complaint. Learned counsel has also relied upon judgment of case Smt. Madhvi Sinha's case (supra) in support of his contentions.
13. Mr. S.S. Bedi, learned counsel for opposite parties No.1 to 3 has submitted that this Commission has no pecuniary jurisdiction to try and adjudicate the present complaint as the amount involved in the present case is approximately ₹26 lac, whereas the State Commission has the jurisdiction in cases where the amount involved is more than ₹1 Crore (now more than ₹50 lac). Learned counsel has further Consumer Complaint No.6 of 2021 11 submitted that the complainant does not falls under the definition of 'consumer', rather he is an investor. Learned counsel has further submitted that the complainant was given option to shift the unit to Tower No.7 which was near completion but he was adamant and did not accept the said offer. The flat was booked under subvention scheme under which the opposite party No.1 Company has paid an amount of ₹1,08,909/- as pre EMI on behalf of the complainant. The project of opposite parties No.1 to 3 is approved and sanctioned and there is no 'deficiency in service' on their part.
14. Ms. Neetu Singh, learned counsel for opposite party No.4 has submitted that the main dispute involved in the complaint is between the complainant and opposite parties No.1 to 3. Opposite party No.4 has only advanced the loan amount in favour of the complainant for making payment of the sale price of the flat as per terms and conditions of the Tripartite Agreement. The parties are bound by the terms and conditions thereof. There is no 'deficiency in service' on the part of opposite party No.4.
15. Heard the arguments raised by learned counsel for the parties. I have also gone through the averments of the complaint, replies thereof, written arguments filed on behalf of the complainant as well as opposite parties No.1 to 3 and other documents available on the file.
16. The first objection which has been raised by the opposite parties is that the complainant does not fall under the definition of 'consumer'. It is relevant to mention that the definition of 'consumer' is Consumer Complaint No.6 of 2021 12 given under Section 2(7) of the Act, which reads as under:
"2. Definitions.- In this Act, unless the context otherwise requires,-
(7) "consumer" means any person who--
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such service other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person, but does not include a person who avails of such service for any commercial purpose.
Explanation.--For the purposes of this clause,-- (a) the expression "commercial purpose" does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment;
(b) the expressions "buys any goods" and "hires or avails any services" includes offline or online transactions through electronic means or by teleshopping or direct selling or multi-level marketing."
17. The complainant had applied for allotment of a flat in the said project of opposite parties and vide Buyer's Agreement dated 28.06.2016, Ex.C-3, he was allotted unit No.10024, 2nd Floor of Tower/Building No.10 having super area of approx.1900 sq.ft. (176.51 sq.mtr.). The total price of the said flat was ₹48,50,000/-. The complainant has specifically averred in the complaint that he has purchased the said flat for his and his family's residential purpose. It is settled proposition of law that the housing construction and building activities by the builders, where the consumers seek allotment, fall Consumer Complaint No.6 of 2021 13 under the definition of 'service'. So, the complainant falls under the definition of 'consumer' as defined in Section 2(7) of the Consumer Protection Act, 2019. In the case of Narne Construction P. Ltd. etc. v. Union of India & Ors. AIR 2012 SC 2369, the Hon'ble Supreme Court has held that housing construction and building activities come under the definition of "service", as defined under Section 2(1)(o) of the Consumer Protection Act, 1986 (now Section 2(42) of the Act of 2019). The Hon'ble National Commission has also held in Meghna Singh Khera and Ors. v. Unitech Ltd., 1 (2020) CPJ 93 (NC) as under:-
"....
15. Another contention of the Opposite Party was that the purchase of the residential unit was for commercial purpose and the complainants were not consumers within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986. The expression commercial purpose used in Section 2(1)(d) of the Act came up for consideration of this Commission in Kavita Ahuja Vs. Shipra Estates Ltd., CC 137 of 2010 decided on 12-02-2015 and the following view was taken:
"The expression 'commercial purpose' has not been defined in the Act and therefore, as held herein below by the Hon'ble Supreme Court in Laxmi Engineering Works Vs. P.S.G. Industrial Institute (1995) 3 SCC 583, we have to go by the dictionary meanings, "In the absence of a definition, we have to go by its ordinary meaning 'Commercial' denotes "pertaining to commerce"
(Chamber's Twentieth Century Dictionary); it means "connected with, or engaged in commerce; mercantile, having profit as the main aim" (Collins English Dictionary) whereas the word 'commerce' means "financial transactions especially buying and selling of merchandise on a large scale" (Concise Oxford Dictionary)".
6. Going by the Dictionary meaning of the expression 'Commerce' as far as hiring or availing services are concerned, a person can be said to have hired or availed services only if they are connected or related to the business or commerce in which he is engaged. In other words, the services in order to exclude the hirer from the ambit of Section 2(1)(d) of the Act should be availed for the purpose of promoting, advancing or augmenting an activity, the primary aim of which is to earn profit with use of the said services. It Consumer Complaint No.6 of 2021 14 would ordinarily include activities such as manufacturing, trading or rendering services. In the case of the purchase of houses which the service provider undertakes to construct for the purchaser, the purchase can be said to be for a commercial purpose only where it is shown that the purchaser is engaged in the business of purchasing and selling houses and / or plots on a regular basis, solely with a view to make profit by sale of such houses. If however, a house to be constructed by the service provider is purchased by him purely as an investment and he is not undertaking the trading of houses on a regular basis and in the normal course of the business profession or services in which he is engaged, it would be difficult to say that he had purchased houses for a commercial purpose. A person having surplus funds available with him would not like to keep such funds idle and would seek to invest them in such a manner that he gets maximum returns on his investment. He may invest such funds in a Bank Deposits, Shares, Mutual Funds and Bonds or Debentures etc. Likewise, he may also invest his surplus funds in purchase of one or more houses, which is/are proposed to be constructed by the service provider, in the hope that he would get better return on his investment by selling the said house(s) on a future date when the market value of such house (s) is higher than the price paid or agreed to be paid by him. That by itself would not mean that he was engaged in the commerce or business of purchasing and selling the house (s).
7. Generating profit by way of trading, in my view is altogether different from earning capital gains on account of appreciation in the market value of the property unless it is shown that the person acquiring the property was engaged in such acquisition on a regular basis and it was by way of a business activity."
16. The Complainants are senior citizens. Complainant No.1 is a retired Professor and Complainant No.2 is a homemaker. No evidence, whatsoever has been adduced to show that they are involved in any commercial activity. There is no merit in the contention of the Opposite Party that they are not consumers as per the Consumer Protection Act, 1986. It is just another routine, technical objection raised in the reply."
18. In view of the above discussion, the complainant falls under the definition of "Consumer", as defined under section 2(7) of the Act as he has hired the "service" of the opposite parties under section 2(42) of the Act.
19. The further objection raised by the opposite parties is that this Commission has no pecuniary and territorial jurisdiction to try and Consumer Complaint No.6 of 2021 15 adjudicate the complaint. They have also raised a plea that as per terms of the agreement, both the parties have agreed to exclude the jurisdiction of all other Courts except the Courts at Noida. Admittedly, the complainant has been allotted flat in the project of opposite parties No.1 to 3 located in the area of Derabassi District S.A.S. Nagar (Mohali). The property in question is situated in the territorial jurisdiction of Punjab and the complainant had paid ₹23,99,092/- to opposite parties No.1 to 3 towards the sale price of the flat and other charges. Moreover, the jurisdiction has been conferred by the Statute itself and not only by mutual arrangement between the parties. Even in view Section 47(4) of the Consumer Protection Act, 2019, this Commission has territorial jurisdiction to decide this complaint. Reliance can be placed upon the judgment passed by the Hon'ble National Commission in the case of Polymech Plast Machines Ltd. and Anr. v. Apple Plast Pvt. Ltd. IV (2006) CPJ 172(NC) wherein it was held that any such clause restricting the jurisdiction to one of the District Forums/State Commissions is contrary to Section 11(2) [17(2)] of the Act of 1986.
20. Section 47 of the Act is relevant in the present context, which is reproduced as under:
"47. Jurisdiction of the State Commission.-
(1) Subject to the other provisions of this Act, the State Commission shall have jurisdiction--
(a) to entertain--
(i) complaints where the value of the goods or services paid as consideration, exceeds rupees one crore, but does not exceed rupees ten crore:
Provided that where the Central Government deems it necessary so to do, it may prescribe such other value, as it deems fit;Consumer Complaint No.6 of 2021 16
(ii) complaints against unfair contracts, where the value of goods or services paid as consideration does not exceed ten crore rupees;
(iii) appeals against the orders of any District Commission within the State; and
(b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any District Commission within the State, where it appears to the State Commission that such District Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested or has acted in exercise of its jurisdiction illegally or with material irregularity. (2) The jurisdiction, powers and authority of the State Commission may be exercised by Benches thereof, and a Bench may be constituted by the President with one or more members as the President may deem fit:
Provided that the senior-most member shall preside over the Bench. (3) Where the members of a Bench differ in opinion on any point, the points shall be decided according to the opinion of the majority, if there is a majority, but if the members are equally divided, they shall state the point or points on which they differ, and make a reference to the President who shall either hear the point or points himself or refer the case for hearing on such point or points by one or more of the other members and such point or points shall be decided according to the opinion of the majority of the members who have heard the case, including those who first heard it:
Provided that the President or the other members, as the case may be, shall give opinion on the point or points so referred within a period of one month from the date of such reference.
(4) A complaint shall be instituted in a State Commission within the limits of whose jurisdiction,--
(a) the opposite party or each of the OPs, where there are more than one, at the time of the institution of the complaint, ordinarily resides or carries on business or has a branch office or personally works for gain; or
(b) any of the OPs, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office or personally works for gain, provided in such case, the permission of the State Commission is given; or
(c) the cause of action, wholly or in part, arises; or
(d) the complainant resides or personally works for gain.
21. The complainant has also challenged the unfair terms of the contract/agreement and had sought to declare said contract as null and void. Under section 47(1)(i) of the Act, the State Commission has pecuniary jurisdiction to entertain complaint with the value of goods or services paid as consideration exceeds Rupees One Crore but did not exceed Rupees Ten Crore. As per Section 47(1)(ii) of the Act reproduced above, it is specifically mentioned that the complaint can be entertained by the State Commission against unfair contracts Consumer Complaint No.6 of 2021 17 where the value of goods or services paid as consideration does not exceed ₹10 Crore. Later on, vide Notification dated 30.12.2021, the pecuniary jurisdiction of the District Commission, State Commission and National Commission was revised. As per Section-4 of said Notification, Section 47(1) (a) (i) of the Consumer Protection Act, 2019 has been amended, which reads as under:
"4. Jurisdiction of the State Commission:-Subject to the other provisions of the Act and in pursuance of proviso to sub- clause (i) of clause (a) of sub-section (1) of Section 47, the State Commission shall be jurisdiction to entertain complaints where the value of the goods or services paid as consideration exceeds fifty lakh but does not exceed two crore rupees."
22. However, under Section 47 (1) (a) (ii), minimum value of the goods or services paid has not been laid down, but maximum value of goods or services paid has been mentioned as not exceeding ₹10 Crore. Section 49 of the Act is also relevant in the present context, which reads as under:
"49. Procedure applicable to State Commission. -
(1) The provisions relating to complaints under sections 35, 36, 37, 38 and 39 shall, with such modifications as may be necessary, be applicable to the disposal of complaints by the State Commission.
(2) Without prejudice to the provisions of sub-section (1), the State Commission may also declare any terms of contract, which is unfair to any consumer, to be null and void."
23. Thus, the State Commission, under section 47(1)(a)(ii) read with section 49 (2) of the Act, has pecuniary jurisdiction to entertain and determine the issue of 'unfair contract' and can declare any term of the contract, which is unfair, as null and void. The Act has Consumer Complaint No.6 of 2021 18 given said power to the State Commission and the Hon'ble National Commission only to examine the unfair terms of the Contract. This power has not been conferred upon the District Commissions under the Act, 2019.
24. The next issue is as to whether the complaint is within the period of limitation of not? It is relevant to mention that neither possession of the flat complete in all respects with agreed facilities and Completion and Occupation Certificates has been delivered, nor the amount deposited by the complainant has been refunded till date. Hon'ble National Commission in "Navin Sharma (Dr.) & others v. Unitech Reliable Projects Pvt. Ltd. & Anr." 2016(2) CLT 457 has held that unless or until the Complainants get possession of the flats, complete in all respects, they have got continuous cause of action. In Para-8 of the said judgment, it has been observed as under:-
"8. The first submission made by the counsel for the opposite party was that the case is barred by time. This argument was raised merely for the sake of cavil. It is now well settled that unless or until the complainants get the possession of the flats, they have got continuous cause of action. This view finds support from this authority reported in "Raghava Estates Ltd. v. Vishnupuram Colony Welfare Association" Special Leave to Appeal (Civil) No.35805 of 2012, decided on 07.12.2012."
25. In another case Satish Kumar Pandey & Anr. v. M/s Unitech Ltd. 2015 (3) CPJ 440 (NC), the Hon'ble National Commission held in Para-17 as follows:
"17. It was next contended by the learned counsel for the respondent that since the last date stipulated in the buyers agreement for giving possession of the flat to them expired more than two years ago, the complaint is barred by limitation prescribed in Section 24A of the Consumer Protection Act. It is now settled legal proposition that failure to deliver possession being a continuous wrong it constitutes a recurrent cause of action and, therefore, so long as the possession is not delivered Consumer Complaint No.6 of 2021 19 to him the buyers can always approach a Consumer Forum. It is only when the seller flatly refuses to give possession that the period of limitation prescribed in Section 24A of the Consumer Protection Act would begin to run. In that case, the complaint has to be filed within two years from the date on which the seller refuses to deliver possession of the flats to the complainants at any point of time and, therefore, the cause of action continues to subsist in favour of the complainants. Reliance in this regard may be placed upon the decision of the Hon'ble Supreme Court in Meerut Development Authority v. M.K. Gupta IV (2012) CPJ 12, where the Hon'ble Supreme Court held that in such a case the buyer has a recurrent cause for filing a complaint for non-
delivery of possession of the plot."
26. In view of the law laid down in the above noted cases, since neither possession of the plot, in question, complete in all respects along with Completion and Occupation Certificates has been delivered, nor the amount has been refunded, so the complainant has continuous cause of action and the complaint is within limitation.
27. So far as the plea of opposite parties No.1 to 3 as raised in their reply that as per terms and conditions of the agreement, the dispute between the parties is liable to be referred to the Arbitrator is concerned, it is relevant to mention here that the Larger Bench of the Hon'ble National Commission, vide order dated 13.07.2017, passed in Consumer Complaint No.701 of 2015 titled as Aftab Singh v. EMAAR MGF Land Limited & Anr., has held that an arbitration clause in the afore-stated kind of Agreements between the complainants and the builder cannot circumscribe the jurisdiction of a Consumer Fora, notwithstanding the amendments made to Section 8 of the Arbitration Act, 1996. The Civil Appeal No.(s) 23512-23513 of 2017 (M/s EMAAR MGF Land Limited & Anr. Vs. Aftab Singh) filed against the said order of the Hon'ble National Commission has also been dismissed by the Apex Court, vide order dated 13.02.2018. Review Petition (C) Nos. Consumer Complaint No.6 of 2021 20 2629-2630 of 2018 in Civil Appeal Nos. 23512-23513 of 2017 filed against the above said order dated 13.02.2018 was also dismissed by the Hon'ble Supreme Court, vide order dated 10.12.2018. Consequently, it is held that the existence of an arbitration clause in the agreement is not a bar to resolve this dispute by this Commission. Consequently, the said plea of the opposite parties No.1 to 3 is also rejected.
28. The plea of opposite parties No.1 to 3 that their project has been registered with RERA, vide Certificate dated 03.09.2019, Ex.OP- 1/3, will also not help them as the flat in dispute was allotted long back vide Buyer's Agreement' dated 28.06.2016 (Ex.C-3). Moreover, when they had failed to complete the developments in the project and to deliver possession of the flat to the complainant within the stipulated period, so registration of the project with RERA does not make any difference.
29. Now, it is to determined as to whether the terms and conditions of the Buyer's Agreement dated 28.06.2016 Ex.C-3 are unfair and unilateral in view of the provisions of the Consumer Protection Act, 2019 and as such the 'unfair contract' is liable to be declared as null and void or not?
30. The complainant has specifically challenged the terms and conditions of the Buyer's Agreement Ex.C-3. Section 2(46) of the Act defines "unfair contract" and it reads as under:
"Section 2 (46): "unfair contract" means a contract between a manufacturer or trader or service provider on one hand, and a consumer on the other, having such terms which cause significant Consumer Complaint No.6 of 2021 21 change in the rights of such consumer, including the following, namely:--
(i) requiring manifestly excessive security deposits to be given by a consumer for the performance of contractual obligations; or
(ii) imposing any penalty on the consumer, for the breach of contract thereof which is wholly disproportionate to the loss occurred due to such breach to the other party to the contract; or
(iii) refusing to accept early repayment of debts on payment of applicable penalty; or
(iv) entitling a party to the contract to terminate such contract unilaterally, without reasonable cause; or
(v) permitting or has the effect of permitting one party to assign the contract to the detriment of the other party who is a consumer, without his consent; or
(vi) imposing on the consumer any unreasonable charge, obligation or condition which puts such consumer to disadvantage."
31. Clause 6 (iii) of the agreement states that in case of delay of payments by the allottee, interest shall be charged at the rate of 18% per annum on the due amount for the delayed period. This Clause of the agreement is in contravention of Clause 15 of the agreement, which states that for delay in delivery of possession, the allottee is entitled to compensation of ₹5/- per sq.ft. per month of super area of the flat. No other compensation of any kind is prescribed. Both these clauses of the agreement are one sided. Meagre compensation of ₹5/- per sq.ft. per month against the charging of huge interest at the rate of 18% on account delay in making payment of sale price is contradictory. Therefore, both these clauses of the agreement being one sided and unfair are liable to be set aside.
32. Similarly, Clause 14 of the agreement states that possession of the unit is proposed to be delivered to the buyer within a period of 42 months with the grace period of six months from the date of actual start of the construction of a particular tower/building subject Consumer Complaint No.6 of 2021 22 to receipt of all payments subject to force majeure circumstances. If delay is due to force majeure circumstances, the time for completion shall be deemed to be reasonably extended. This Clause of the agreement is unfair, as it binds the buyer to pay the entire sale price and other charges before delivery of possession of the unit and even in case of non-development of the site and it condones the delay in completion of project on the basis of so-called force majeure circumstances out of which many can be well foreseen. This Clause is also unfair as no reciprocal benefit has been given to the buyer.
33. Likewise, Clause 16 of the agreement provides that in case the purchaser fails to take possession after expiry of 60 days from the date of offer letter, the buyer shall be liable to pay holding charges at the rate of ₹5/- per sq.ft. of the super area. This Clause is also unfair as the buyer is expected to take possession of the unit/plot etc. subject to provision of all the agreed and basic amenities and Completion and Occupation Certificates issued by the competent authorities, as per Section 14 of the Punjab Apartment and Property Regulation Act, 1995 (in short, "PAPRA"). In the absence of complete legal possession with all the agreed facilities, the demand of holding charges is one sided and unfair to the interest of the complainant.
34. Further, Clause 19 of the agreement states that the after taking possession of the unit, the purchaser shall have no claim against the developer in respect of any item of work, quality of work etc. and the purchaser is to occupy the flat without any interference. This Clause of the agreement is also totally unfair and one sided. It Consumer Complaint No.6 of 2021 23 illegally prohibits the purchaser from raising any kind of dispute with regard to shortcomings in construction of the flat or inferior quality of building material, if used. The purchaser has every right to complain against the hidden shortcomings in the construction, building materials or for any work remained to be completed by the developer. Hence, this Clause is also unfair and is liable to set aside.
35. The Hon'ble Supreme Court in the case of Ireo Grace Realtech Pvt. Ltd. v. Abhishek Khanna and Ors. Civil Appeal No.5785 of 2019 decided on 11.01.2021, relying upon the judgments rendered in cases of Wg. Cdr. Arifur Rahman Khan and Aleya Sultana and Ors. v. DLF Southern Homes Ltd. 2020 (3) RCR (Civil) 544, has upheld that the Consumer Commissions at State and National level have the power to declare such contracts as null and void. The relevant portion of said judgment is reproduced as under:-
"....
19. Whether the terms of the Apartment Buyer's Agreement are one-sided?
The second issue which has been raised by the Apartment Buyers is that the Agreement in this case, contains wholly one-sided clauses, and would not be bound by its terms.
19.1 We have carefully perused the terms of the Agreement, and an analysis of the same reveals that:
a) Under the construction-linked plan, Clause 6 provided that the apartment buyers would be required to deposit 20% of the sale consideration within 45 days of booking of the apartment.
b) Clause 7.4 of the Agreement provides that if there is a delay in payment of an instalment, the apartment buyer would be required to pay Interest on every delayed payment of such instalment @ 20% S.I. p.a.
c) Clause 13.2 of the Agreement provides that if the allottee fails, ignores or neglects to take possession of the said Apartment in accordance with the Notice of Possession, the allottee shall be liable to pay "Holding Charges" on the super area @ Rs.7.5 per sq. ft. per month.Consumer Complaint No.6 of 2021 24
d) In contrast, Clause 13.3 of the Agreement provides that if the Company fails to offer possession by the end of the Grace Period i.e. 42+6 months, it would be liable to pay Delay Compensation @ Rs.7.5 per sq. ft. of the super area for every month of delay.
Delay compensation at Rs. 7.5 per sq. ft. works out to approximately 0.9% to 1 % Interest per annum. The price per sq. ft of an apartment under the Apartment Buyer's Agreement was Rs. 10,350/- per sq. ft. The compensation payable for delay was Rs. 7.5 per sq. ft. The compensation payable by the Developer for delay in offering possession works out to :
7.5/10,350 x 100 x 12 = 0.9 % to 1% p.a.
e) Clause 13.5 provides that the allottee may opt for termination, only after 42 months from the date of issuance of Fire NOC + 6 months' Grace Period, plus a further period of 12 months.
The Delay Compensation would be payable to the allottee only if the termination was "validly opted". The compensation was limited to a fixed period of 12 months only, and that no other claim whatsoever, whether monetary or otherwise, was payable by the Developer.
f) Clause 13.8 of the Agreement provides that the allottee shall be deemed to have waived all its claims in respect of the area, specifications, quality, construction, any other provision in the apartment against the Developer upon taking possession of the apartment.
g) Clause 21 provides for termination of the Agreement and forfeiture of earnest money by the Developer, if the allottee neglects or fails to make timely payments as stipulated in the Agreement, or fails to exercise the options offered by the Developer.
Clause 21.3 provides that upon such termination, the Appellant Company shall be under no obligation, except to refund the amounts already paid by the allottee, without any interest, and after forfeiting and deducting the earnest money, interest on delayed payments, brokerage / commission / charges, service tax and other amounts due and payable to it. The principal amount after the aforesaid deductions are made, would be refunded at an uncertain future date i.e. after the Developer had sold the apartment allotted to the complainant.
In contrast, the allottee is given a very limited right to cancel the Agreement solely in the event of the clear and unambiguous failure of the warranties of the Company, which leads to frustration of the Agreement on that account. In such case, the allottee will be entitled to a refund of the instalments actually paid, along with interest @ 8% p.a. within a period of 90 days from the date of determination to this effect. No other claim, whatsoever, monetary or otherwise shall lie against the Company.
19.2 The aforesaid clauses reflect the wholly one-sided terms of the Apartment Buyer's Agreement, which are entirely loaded in favour of the Developer, and against the allottee at every step. Consumer Complaint No.6 of 2021 25
The terms of the Apartment Buyer's Agreement are oppressive and wholly one-sided, and would constitute an unfair trade practice under the Consumer Protection Act, 1986. .....
19.4 Clause 2(1)(r) of the Consumer Protection Act, 1986 defines "unfair trade practice" as follows :-
"2(1)(r) "unfair trade practice" means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including any of the following practices, namely:-
... .... ... " (emphasis supplied) The said definition is an inclusive one, as held by this Court in Pioneer Urban Land & Infrastructure Ltd. v. Govindan Raghavan, (2019) 5 SCC 725 wherein this Court speaking through one of us (J. Indu Malhotra) held :-
"6.1 .... The inordinate delay in handing over possession of the flat clearly amounts to deficiency of service. In Fortune Infrastructure v. Trevor D'Lima [Fortune Infrastructure v. Trevor D'Lima, (2018) 5 SCC 442 : (2018) 3 SCC (Civ) 1] , this Court held that a person cannot be made to wait indefinitely for possession of the flat allotted to him, and is entitled to seek refund of the amount paid by him, along with compensation.
6.2. The respondent flat purchaser has made out a clear case of deficiency of service on the part of the appellant builder. The respondent flat purchaser was justified in terminating the apartment buyer's agreement by filing the consumer complaint, and cannot be compelled to accept the possession whenever it is offered by the builder. The respondent purchaser was legally entitled to seek refund of the money deposited by him along with appropriate compensation.
6.3 The National Commission in the impugned order dated 23-10-2018 [GeetuGidwani Verma v. Pioneer Urban Land and Infrastructure Ltd., 2018 SCC OnLine NCDRC 1164] held that the clauses relied upon by the builder were wholly one-sided, unfair and unreasonable, and could not be relied upon. The Law Commission of India in its 199th Report, addressed the issue of "Unfair (Procedural & Substantive) Terms in Contract". The Law Commission inter alia recommended that a legislation be enacted to counter such unfair terms in contracts. In the draft legislation provided in the Report, it was stated that:
"a contract or a term thereof is substantively unfair if such contract or the term thereof is in itself harsh, oppressive or unconscionable to one of the parties."Consumer Complaint No.6 of 2021 26
6.8. 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 contractual terms of the agreement dated 8-5- 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(1)(r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling the flats by the builder." 19.5 In a similar case, this Court in Wg. Cdr.Arifur Rahman Khan & Others v. DLF Southern Homes Pvt. Ltd., 2020 SCC Online SC 667 affirmed the view taken in Pioneer (supra), and held that the terms of the agreement authored by the Developer does not maintain a level platform between the Developer and the flat purchaser. The stringent terms imposed on the flat purchaser are not in consonance with the obligation of the Developer to meet the timelines for construction and handing over possession, and do not reflect an even bargain. The failure of the Developer to comply with the contractual obligation to provide the flat within the contractually stipulated period, would amount to a deficiency of service. Given the one-sided nature of the Apartment Buyer's Agreement, the consumer fora had the jurisdiction to award just and reasonable compensation as an incident of the power to direct removal of deficiency in service.
19.6 Section 14 of the 1986 Act empowers the Consumer Fora to redress the deficiency of service by issuing directions to the Builder, and compensate the consumer for the loss or injury caused by the opposite party, or discontinue the unfair or restrictive trade practices. 19.7 We are of the view that the incorporation of such one-sided and unreasonable clauses in the Apartment Buyer's Agreement constitutes an unfair trade practice under Section 2(1)(r) of the Consumer Protection Act. Even under the 1986 Act, the powers of the consumer fora were in no manner constrained to declare a contractual term as unfair or one-sided as an incident of the power to discontinue unfair or restrictive trade practices. An "unfair contract" has been defined under the 2019 Act, and powers have been conferred on the State Consumer Fora and the National Commission to declare contractual terms which are unfair, as null and void. This is a statutory recognition of a power which was implicit under the 1986 Act.
In view of the above, we hold that the Developer cannot compel the apartment buyers to be bound by the one-sided contractual terms contained in the Apartment Buyer's Agreement."
36. In view of the above discussion and the law laid down by the Hon'ble Supreme Court, it clear that the terms of the agreement Ex.C-3 are unfair and one sided and favour the builder only. Said Consumer Complaint No.6 of 2021 27 terms being unfair cause a significant imbalance in the parties and obligations and the builder has undue advantage over the consumers. The standard form contracts are pretended contracts, which have only the name of contract. They are called contract of adhesion. The opposite parties get expert advice and introduce terms, in the printed forms, which are more favourable to them. They are drafted by the legally skilled persons and standard terms and conditions are prepared by one party and offered to the other on a "take it or leave it" basis. It amounts to 'deficiency in service' and 'unfair trade practice' on the part of opposite parties No.1 to 3. Accordingly, the Buyer's Agreement Ex.C-3 is declared as null and void.
37. Otherwise also, the agreement was executed on 28.06.2016 and as per Clause-14 thereof, the possession of the flat was to be handed over to the complainant within a period of 42 months with a grace period of 6 months from the date of actual start of construction of a particular tower/building. No evidence has been led by opposite parties No.1 to 3 to show as to on which date the construction of a particular tower/building was actually started. So, the said period of 48 months (42+6) is to be taken from the date of execution of the agreement i.e. 28.06.2016. Said period of 48 months expired on 27.06.2020. However, opposite parties No.1 to 3 have failed to complete the project and deliver possession of the flat in dispute complete in all respects with valid Completion and Occupation Certificate to the complainant.
Consumer Complaint No.6 of 2021 28
38. A query has been put to learned counsel for opposite parties No.1 to 3 as to what is the status of the construction. He has fairly admitted that till date no construction has been started. Some of the photographs relied upon by learned counsel for the complainant have been placed at Pages-96 & 97 of the file. Learned counsel for opposite parties No.1 to 3 has not disputed the status of the site as reflected in the said photographs. Therefore, it stands proved that the project is still incomplete and there is no likelihood of delivery of possession in near future.
39. Opposite parties No.1 to 3 have produced on record the copy of approval for raising construction issued by the office of Municipal Council, S.A.S. Nagar vide letter dated 16.12.2011 but it was issued subject to compliance of various terms and conditions mentioned therein. Opposite parties No.1 to 3 have not led any evidence to prove that they had complied with said terms and conditions in letter and spirit. Otherwise also, the other approvals from fire, water and sewerage, electricity departments etc. have not been produced on record. This amounts to violation of various provisions of the PAPRA. As per Section 5 (Development of land into Colony) of PAPRA, opposite parties No.1 to 3 were liable to obtain permission from the various competent authorities for developing the project, but they failed to produce on record all the requisite permissions. So, they also violated Section 5 of PAPRA.
40. As per Section 9 of PAPRA, every builder is required to maintain a separate account in a scheduled Bank, for depositing the Consumer Complaint No.6 of 2021 29 amount deposited by the buyers, who intend to purchase the plots/flats/commercial space/unit, but no evidence has been led on the record by opposite parties No.1 to 3 to prove that any account has been maintained by them in this respect. As such, they have also violated Section 9 of the PAPRA.
41. In view of above discussion, I hold that the terms and conditions of the agreement Ex.C-3 are unfair and are held to be null and void and the agreement/contract is set aside. So, under these circumstances, I have no option but to direct opposite parties No. to 3 to refund the amount with interest at the rate of 9% per annum from the respective dates of deposit till realization on account of financial loss suffered by the complainant by depriving him of the utilization of the said amount during the period it remained with them. Besides this, the complainant is also entitled to suitable compensation for the mental agony and harassment etc. suffered by him due to the 'deficiency in service' and 'unfair trade practice' on the part of opposite parties No.1 to 3 including litigation costs and other expenses.
42. It also relevant to mention that the complainant got sanctioned loan of ₹38,40,000/- from opposite party No.4-HDFC Ltd., vide Loan Agreement dated 30.06.2016 (Ex.C-6). Tripartite Agreement Ex.C-4 was also executed on 28.06.2016 between the complainant, opposite party No.1 and opposite party No.4. Perusal of receipt dated 01.07.2016 at Page-76 shows that out of aforesaid sanctioned loan amount, an amount of ₹15,59,034/- was disbursed to opposite party Consumer Complaint No.6 of 2021 30 No.1. This fact is also evident from Page-85 of the file (which is part of the Loan Agreement). It has also been mentioned on said page that an amount of ₹1,08,908/- was deducted by of adjustment against loan processing. However, opposite party No.4-HDFC Ltd. in its reply pleaded that said amount of ₹1,08,908/- shown in the Account Statement reflects the Pre-EMI interest for subvention period. As per Clause-3 of the Tripartite Agreement, the builder agreed to pay the interest amount over and above 7% on behalf of the borrower to the financer during 36 months.
43. As per Clause-9 of the Tripartite Agreement, in case of default under loan agreement or cancellation of unit, firstly the outstanding amount of loan amount is to be paid to the HDFC Ltd. directly. Therefore, first of all the outstanding loan amount shall be refunded to opposite party No.4-HDFC Ltd. as per the terms and conditions of the Tripartite Agreement. The amount of ₹1,08,908/- paid/adjusted by opposite parties No.1 to 4 towards Pre-EMI interest to HDFC Ltd. as per terms and conditions of Tripartite Agreement Ex.C-4 shall be adjusted.
44. Accordingly, the complaint filed by the complainant is partly allowed and following directions are issued:
i) Opposite parties No.1 to 3 are directed to refund the entire amount so deposited by the complainant, i.e. ₹23,99,092/- along with interest at the rate of 9% per annum from the respective dates of deposit till its realization due to financial loss suffered by the complainant for depriving him of the utilization of the said Consumer Complaint No.6 of 2021 31 amount during the period it remained with opposite parties No.1 to 3;
It is also made clear that first of all, out of the refundable amount, the outstanding loan amount advanced by opposite party No.4 shall be refunded to opposite party No.4 as per terms of the Tripartite Agreement Ex.C-4 and thereafter the remaining amount, if any, shall be refunded to the complainant.
ii) The amount of ₹1,08,908/- which has been paid/adjusted against Pre-EMI Interest on behalf of the complainant shall be adjusted.
ii) Opposite parties No.1 to 3 shall also pay ₹50,000/- as compensation for causing mental harassment, agony and pain suffered by the complainant, including litigation costs of ₹15000/- Consumer Complaint No.12 of 2021 Misc. Application No.344 of 2021 (Joint Complaint):
45. The complainants have filed this application for seeking permission to file the complaint jointly.
46. Heard.
47. The said application has been supported by an affidavit. The flat in dispute was allotted in the joints names of both the complainants and this fact is evident from the Buyer's Agreement dated 23.02.2013 (Ex.C-2). Therefore, the application is allowed and the complainants are allowed to file the complaint jointly. Main Case:
48. In Consumer Complaint No.12 of 2021, the complainants who are husband and wife had booked a flat in the same project of opposite parties No.1 to 3 by paying booking amount of ₹1,00,000/- vide cheque No.004942 dated 01.01.2013. Thereafter also paid an Consumer Complaint No.6 of 2021 32 amount of ₹8,62,000/- vide cheque No.385083 dated 23.02.2013. The flat was booked by them for the purpose of their own residence in or around Chandigarh. A Buyer's Agreement was executed between the complainants and opposite parties No.1 to 3 on 23.02.2013 whereby apartment No.07021, 2nd Floor in Tower No.7 having super area of approx. 1900 sq.ft. along with one car parking was allotted to them for total sale consideration of ₹48,15,000/-. It has also been mentioned in the said complaint that the complainants had got sanctioned a loan of ₹37,32,000/- from opposite party No.4-HDFC Ltd. and a Tripartite Agreement was executed between the complainant, opposite party No.1 and opposite party No.4-HDFC Ltd. on 23.02.2013. Out of said loan amount, an amount of ₹35,31,834/- was disbursed vide cheque No.910540 dated 28.02.2013 in favour of opposite parties No.1 to 3 as is evident from payment receipts dated 28.02.2013 at Page-90 and 91 of the file. Thus, a total amount of ₹44,93,834/- stood paid towards the price of the flat. Other averments of the complaint are similar to that of Consumer Complaint No.6 of 2021. The terms and conditions of the Buyer's Agreement are same as that of the Buyer's Agreement in Consumer Complaint No.6 of 2021 and the same have been challenged in this complaint also. Similar prayer has been made in this complaint.
49. The said complaint has been contested by opposite parties No.1 to 4 by filing joint replies thereto on the same lines of their replies as mentioned in Consumer Complaint No.6 of 2021. Similar type of Consumer Complaint No.6 of 2021 33 evidence has been produced by all the parties in support of their respective contentions.
50. In view of the reasons and discussion held in Consumer Complaint No.6 of 2021, this complaint i.e. Consumer Complaint No.12 of 2021 is partly allowed and following directions are issued:
i) Opposite parties No.1 to 3 are directed to refund the entire amount so deposited by the complainants, i.e. ₹44,93,834/-
along with interest at the rate of 9% per annum from the respective dates of deposit till its realization due to financial loss suffered by the complainants for depriving them of the utilization of the said amount during the period it remained with opposite parties No.1 to 3;
It is also made clear that first of all, out of the refundable amount, the outstanding loan amount advanced by opposite party No.4 shall be refunded to opposite party No.4 as per terms of the Tripartite Agreement Ex.C-3 and thereafter the remaining amount, if any, shall be refunded to the complainants.
ii) Opposite parties No.1 to 3 shall also pay ₹50,000/- as compensation for causing mental harassment, agony and pain suffered by the complainants, including litigation costs of ₹15000/-.
Consumer Complaint No.16 of 2021 Misc. Application No.418 of 2021 (Joint Complaint):
51. The complainants have filed this application for seeking permission to file the complaint jointly.
52. Heard.
Consumer Complaint No.6 of 2021 34
53. The said application has been supported by an affidavit. The flat in dispute was allotted in the joints names of both the complainants and this fact is evident from the Buyer's Agreement dated 25.03.2013 (Ex.C-2). Therefore, the application is allowed and the complainants are allowed to file the complaint jointly. Main Case:
54. In Consumer Complaint No.16 of 2021, the complainants who are husband and wife had booked a flat in the same project of opposite parties No.1 to 3 by paying booking amount of ₹6,97,914/- vide cheques No.153401 dated 22.02.2016, No.153402 and 542413 both dated 27.02.2016 as is evident from receipts Ex.C-1 (colly.). The flat was booked by them for the residence of their younger son namely Sumit Kumar Verma. A Buyer's Agreement was executed between the complainants and opposite parties No.1 to 3 on 25.03.2016 whereby apartment No.8033, 3rd Floor in Tower No.8 having super area of approx. 1650 sq.ft. (153.29 sq.mtr.) along with one car parking was allotted to them for total sale consideration of ₹46,22,500/-. It has also been mentioned in the said complaint that the complainants had got sanctioned a loan of ₹35,00,000/- from State Bank of India and a Tripartite Agreement (Ex.C-3) was executed between the complainant, opposite party No.1 and State Bank of India on 14.04.2016. Out of said loan amount, an amount of ₹16,82,894/- was disbursed vide cheque No.577182 dated 29.04.2016 in favour of opposite parties No.1 to 3 as is evident from payment receipt dated 02.05.2016 (Ex.C-
4). Thus, a total amount of ₹23,80,808/- stood paid towards the price Consumer Complaint No.6 of 2021 35 of the flat. Other averments of the complaint are similar to that of Consumer Complaint No.6 of 2021. The terms and conditions of the Buyer's Agreement are same as that of the Buyer's Agreement in Consumer Complaint No.6 of 2021 and the same have been challenged in this complaint also. Similar prayer has been made in this complaint.
55. The said complaint has been contested by opposite parties No.1 to 3 by filing joint reply on the same lines of their replies as mentioned in Consumer Complaint No.6 of 2021. Similar type of evidence has been produced by all the parties in support of their respective contentions.
56. In view of the reasons and discussion held in Consumer Complaint No.6 of 2021, this complaint i.e. Consumer Complaint No.16 of 2021 is partly allowed and following directions are issued:
i) Opposite parties No.1 to 3 are directed to refund the entire amount so deposited by the complainants, i.e. ₹23,80,808/-
along with interest at the rate of 9% per annum from the respective dates of deposit till its realization due to financial loss suffered by the complainants for depriving them of the utilization of the said amount during the period it remained with opposite parties No.1 to 3;
It is also made clear that first of all, out of the refundable amount, the outstanding loan amount advanced by State Bank of India shall be refunded to State Bank of India as per terms of the Tripartite Agreement Ex.C-3 and thereafter the remaining amount, if any, shall be refunded to the complainants. Consumer Complaint No.6 of 2021 36
ii) Opposite parties No.1 to 3 shall also pay ₹50,000/- as compensation for causing mental harassment, agony and pain suffered by the complainants, including litigation costs of ₹15000/-.
Consumer Complaint No.17 of 2021 Misc. Application No.432 of 2021 (Joint Complaint):
57. The complainants have filed this application for seeking permission to file the complaint jointly.
58. Heard.
59. The said application has been supported by an affidavit. The flat in dispute was allotted in the joints names of all the complainants and this fact is evident from the Buyer's Agreement dated 25.06.2016 (Ex.C-2). Therefore, the application is allowed and the complainants are allowed to file the complaint jointly. Main Case:
60. In Consumer Complaint No.17 of 2021, the complainants who are mother, son and daughter had booked a flat in the same project of opposite parties No.1 to 3 by paying booking amount of ₹3,50,000/- vide cheque No.152722 dated 17.05.2016 and thereafter paid an amount of ₹1,98,122/- vide cheque No.152724 dated 12.06.2016 as is evident from receipts Ex.C-1 (colly.). The flat was booked by them for their residence. A Buyer's Agreement (Ex.C-2) was executed between the complainants and opposite parties No.1 to 3 on 25.06.2016 whereby apartment No.09114, 11th Floor in Tower No.9 having super area of approx. 1350 sq.ft. (125.42 sq.mtr.) along with one car parking was allotted to them for total sale consideration of Consumer Complaint No.6 of 2021 37 ₹35,50,000/-. It has also been mentioned in the said complaint that the complainants had got sanctioned a loan of ₹20,00,000/- from HDFC Ltd. and a Tripartite Agreement (Ex.C-3) was executed between the complainant, opposite party No.1 and HDFC Ltd. on 17.10.2016. Out of said loan amount, an amount of ₹10,00,000/- was disbursed vide cheque No.731511 dated 22.10.2016 in favour of opposite parties No.1 to 3 as is evident from payment receipt dated 02.11.2016 (Ex.C-
5). Thereafter, the complainants paid an amount of ₹2,80,123/- vide receipt dated 15.11.2016 (Ex.C-6). Thus, a total amount of ₹18,28,245/- stood paid towards the price of the flat. Other averments of the complaint are similar to that of Consumer Complaint No.6 of 2021. The terms and conditions of the Buyer's Agreement are same as that of the Buyer's Agreement in Consumer Complaint No.6 of 2021 and the same have been challenged in this complaint also. Similar prayer has been made in this complaint.
61. The said complaint has been contested by opposite parties No.1 to 3 by filing joint reply on same lines of their replies as mentioned in Consumer Complaint No.6 of 2021. Similar type of evidence has been produced by all the parties in support of their respective contentions.
62. In view of the reasons and discussion held in Consumer Complaint No.6 of 2021, this complaint i.e. Consumer Complaint No.17 of 2021 is partly allowed and following directions are issued:
Consumer Complaint No.6 of 2021 38
i) Opposite parties No.1 to 3 are directed to refund the entire amount so deposited by the complainants, i.e. ₹18,28,245/-
along with interest at the rate of 9% per annum from the respective dates of deposit till its realization due to financial loss suffered by the complainants for depriving them of the utilization of the said amount during the period it remained with opposite parties No.1 to 3;
It is also made clear that first of all, out of the refundable amount, the outstanding loan amount advanced by HDFC Ltd. shall be refunded to HDFC Ltd. as per terms of the Tripartite Agreement Ex.C-3 and thereafter the remaining amount, if any, shall be refunded to the complainants.
ii) Opposite parties No.1 to 3 shall also pay ₹50,000/- as compensation for causing mental harassment, agony and pain suffered by the complainants, including litigation costs of ₹15000/-.
63. The compliance of the orders passed in all the complaints shall be made by the opposite parties within a period of 30 days of the receipt of certified copy of the orders.
64. Since the main cases have been disposed of, so other pending Miscellaneous Applications, if any, are also accordingly disposed of.
65. The complaints could not be decided and pronounced within the statutory period due to heavy pendency of court cases and pandemic of COVID-19.
(JUSTICE DAYA CHAUDHARY) PRESIDENT February 06, 2023.
(Gurmeet S)