National Consumer Disputes Redressal
Sanjiv Puri & Anr. vs Suncity Projects Pvt. Ltd. on 10 November, 2022
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 1384 OF 2018 1. SANJIV PURI & ANR. S/o. Sh. H.C. Puri,
R/o. B-140, Farmer Appt., 1st Floor,
Sector-13, Rohini, Delhi - 110 085 2. MANJU PURI W/o. Sh. Sanjiv Puri,
R/o. B-140, Farmer Appt., 1st Floor,
Sector-13, Rohini, Delhi - 110 085 ...........Complainant(s) Versus 1. SUNCITY PROJECTS PVT. LTD. Through its Managing Director,
Registered Office at LGF-10, Vasant Square Mall,
Plot-A, Sector-B,
Pocket-V,
Community Centre,
Vasant Kunj,
South West Delhi, New Delhi - 110 070 ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE RAM SURAT RAM MAURYA,PRESIDING MEMBER HON'BLE DR. INDER JIT SINGH,MEMBER
For the Complainant : Mr. Roshan Santhalia, Advocate For the Opp.Party : Mr. Pravin Bahadur, Mr. Saurabh Kumar
and Mr. S. Anjani Kumar, Advocates
Dated : 10 Nov 2022 ORDER
DR.INDER JIT SINGH, MEMBER
1. The present Consumer Complaint (CC) has been filed by the Complainants against the Opposite Party (OP) as detailed above, inter aila praying for:-
to direct the OP to refund the entire amount of Rs.70,60,402/- paid by the complainants to the opposite party alongwith interest @24% p.a. from the respective dates of deposit,
(ii) to pay Rs.17,88,496/- on account of the expenses, charges, interest paid by the complainants in order to purchase the apartment in question.
(iii) to pay Rs.75,000/- towards cost of litigation.
2. Notice was issued to the opposite party on 10.07.2018 giving them 30 days' time to file their written statement.
3. It is averred/stated in the complaint that:-
i) That the complainants booked a flat in the residential Project launched by the OP in the name of "Parikarma" situated in Village Kundli, Sector-20, District-Panchkula, Haryana and was allotted Apartment No. 302, on the 3rd Floor with a Super Area 1850 sq.ft. Apartment Buyer's Agreement dated 13.07.2012 was entered between the parties. The total consideration for the flat was Rs.1,20,20,000/-, out of which, the complainants paid Rs.70,60,402/-. The payment was to be made under the construction linked plan. The OP was liable to handover the possession of the unit within 36 months from the date of execution of the Apartment Buyer Agreement, i.e. by 13.07.2015.
ii) After having paid a huge amount of the flat, the OP failed to hand over the possession within the stipulated period. The complainants took loan from Tata Capital in the sum of Rs.81,50,000/- . This loan was to be repaid within a span of 120 months along with interest @11.15% culminating into monthly EMI of Rs.1,12,959/-. A sum of Rs.49,99,502/- was disbursed by the Bank.
iii) As the OP failed to deliver the possession, within the stipulated time period i.e., till 13.07.2015, the complainants wrote a letter to the OP on 23.04.2016 for refund of amount paid by the complainants along with interest @24% p.a. to be calculated from the respective dates of deposits. In addition to this damages to the tune of Rs.17,88,496/- was also requested on account of loan interest, expenses, other charges etc. paid by the complainants in order to arrange for funds to pay for this apartment. But the OP completely ignored the request of the complainants and instead raised an additional demand of Rs.16,76,334/- which includes interest @24% p.a. amounting to Rs.93,660/-. It is also contended by the complainants in the complaint that when the OP is charging interest @24% p.a. for the delay in payment then in that case the complainants should also be liable for payment of interest @24% p.a. on the deposits on the deposits which have been made by the complainants.
iv) As the complainants were left with no other option, the complainants filed a Complaint No. 762/2016 before the State Consumer Disputes Redressal Commission, New Delhi for deficiency of service committed by the OP, which was disposed of by the State Commission vide its order dated 17.01.2018 stating that 'this Commission has no jurisdiction to try and entertain the present complaint. Accordingly, the present complaint is returned to the complainants for presenting the same before appropriate forum in accordance with law." Hence, the complainants filed complaint before this Commission. The complainants also contended that they are entitled to the benefit under Section 14 of the Limitation Act as the complainants had already filed a complaint before the State Commission and the period between 14.07.2016 (date of filing complaint before the State Commission) to 17.01.2018 (date of dismissal of complaint by the State Commission) is to be excluded. As such, the present complaint is within the limitation period of 2 years as prescribed under Section 24A of the Consumer Protection Act, 1986.
4. OP in their written statement/reply stated that :-
The present complaint is liable to be dismissed in limine with costs, for suppression of material facts with malafide intent. The complainants are guilty of suppression/concealment of material facts. As the complainants have approached this Commission with unclean hands by suppressing material facts with a malafide intent.
The complainants had obtained Home Loan from Tata Capital Housing Finance Limited (TCHFL). Accordingly, a Tripartite Agreement dated 25.07.2012 was executed amongst the complainants, OP and TCHFL. In terms of the said Tripartite Agreement, the complainants had agreed to execute an equitable mortgage in favour of TCHFL qua their right, title and interest in the said apartment. The said charge was also duly noted by the OP in its records and accordingly, a letter dated 28.07.2012 was issued by the OP to TCHFL.
The total sale consideration for the apartment in question was more than Rs.1.20 crores, however, loan taken by the complainants was for a sum of Rs.81,50,000/- , which was payable by them in EMIs. The complainants did not pay their EMIs and defaulted on their loan agreement executed with TCHFL. The TCHFL instituted an arbitration against the complainants and also arrayed the OP as party to the said arbitration proceedings. As such, the claimant in the said arbitration was TCHFL and the complainants and the OP were arrayed as Respondents to the said arbitration proceedings. The Arbitrator has passed the order on 22.12.2017, in which the respondents are directed to pay Rs.44,86,021/- jointly and severally with interest @9.50% and also passed the other awards as well. Copy of the said Award dated 22.12.2017 was provided to the OP only on 27.06.2018. Without prejudice to the fact that no arbitration proceedings could have been initiated against the OP, even otherwise, the award passed against the OP herein is completely malafide and is bad in the eyes of law, and the OP reserves its rights to take appropriate proceedings in relation thereto. Without prejudice to the aforesaid and without going into the merits of the award and also without prejudice to the fact that the entire arbitration proceedings were collusive in nature as the OP has been directed to refund an amount of Rs.81,50,000/- to TCHFL with interest @9.50% p.a., which is even more than the sum received by the OP from the complainants, which is about Rs.70.00 lakhs. It is reiterated that the said Award is illegal and the OP reserves its right to take appropriate action against the same, but till the said Award is not set aside, the complainants cannot make any claim before this Commission or before any other Court or Forum, in relation to the said apartment or qua the money paid by them towards allotment in the said apartment.
The OP offered the possession to the complainants on 01.09.2017. The complainants have made false statements on affidavit that "even till date the OP is in no position to handover the possession of the said Apartment to the Complainants". As submitted the OP had already sent the offer of possession vide letter dated 01.09.2017, therefore, the statement that till date the OP is in no position to handover possession shows the deliberate intent on the part the complainants to mislead the Commission.
Even though the complainants were in default and not eligible for possession, the OP offered possession of the apartment in September 2017, but the complainants neither came forward to make payment nor take physical possession of the apartment. As such, the OP is entitled to levy holding charges on the complainants in terms of the Agreement between the parties. After the OP came to know on 27.06.2018 that the complainants have defaulted in payment of EMIs to TCHFL has obtained an Award in the Arbitration proceedings, the OP immediately wrote a final notice dated 03.07.2018, which is issued prior to cancellation of allotment, to the complainants. By way of the said notice, the OP requested the complainants to make complete payment to the OP and settle the dispute with the TCHFL but the complainants failed to do so within the time of 10 days, given by the OP in their notice.
The complaint is bad for non-joinder of necessary party i.e. TCGFL. Therefore, without TCHFL being made a party to the present complaint, the complaint cannot be adjudicated.
Under clause 25 of the agreement, possession is contemplated within three years of the signing of the agreement. The same clause 25 further states that in case of delay, the developer shall pay compensation at the rate of Rs.10/- per sq.ft. per month and the allottee agrees and have no other rights/claims against the developer in this regard provided the allottee is not in breach of any terms of this agreement. Further clause 27, envisages delay on account of "force majeure" conditions, which would not be considered as delay. Therefore, both the aspects of delay are envisaged for which compensation is not payable. It is contended by the OP that the terms of the agreement can neither be ignored nor modified nor amended by this Commission.
The complaint is barred by limitation as the complaint can be filed within two years from the date when the cause of action arose. The present complaint has been filed almost six years after entering into the agreement or almost after six years after the cause of action arose.
It is also contended by the OP that the complainants booked this apartment for an additional investment for better returns and appreciation in value. The complainants have not even disclosed their current residential address, and whether the same is owned by the. The complainants have averred in the complaint that they have been residing outside the country. The complainant No.1 availed Home Loan in an NRI status, and there is no statement in the complaint as to whether the complainants are still residing in foreign or are back India. The complainants have given the address of Delhi in the complaint and the apartment in question is located in Panchkula, which clearly shows the apartment in question has been booked for investment purposes.
The complainants have claimed an exorbitant and baseless claim compensation in the nature of interest @24% p.a. in addition to Rs.17,88,496/- on account of expenses, charges and interest and Rs.75,0000/- towards litigation expenses, without supporting material on record. The said claim ought to be rejected and the complaint ought to be dismissed.
5. Evidence by way of affidavit was filed by the complainants and affidavit of evidence was filed by the OP broadly on the lines of averments made in the complaint.
6. Heard counsels of both sides. The details of the flat allotted to the Complainants/other relevant details of the case are given in the Table below:-
Sr No
Particulars
1
Project Name/Location etc.
'Parikarma', Tower No.7B, Third Floor, Sector-20, Panchkula, Haryana
2
Apartment no.
Apartment No. 302,
3
Size (Built up/Covered/Super Area)
1850 sq.ft.
4
Date of application
In the year 2012
5
Date of signing Buyers' Agreement
13.07.2012
6
Committed date of possession as per Buyers' Agreement (with Grace period, if any)
13.07.2015
7
D/o Offering Possession
01.09.2017
8
Total Consideration
Rs.1,20,00,000/-
9
Amount Paid
Rs.70,60,402/-
10
D/o Filing CC in NCDRC
04.06.2018
11
D/o Issue of Notice to OP
10.07.2018
12
D/o Filing Reply/Written Statement by OP
21.08.2018
13
D/o filing Rejoinder by the Complainants
13.03.2019
14
D/o Filing Evidence by way of Affidavit by the Complainants
15.04.2019
15
D/o Filing Evidence by way of Affidavit by the OP
01.07.2019
16
D/o filing Written Synopsis by the Complainants
09.12.2021
17
D/o filing Written Synopsis by the OP
-
It was argued by complainants that since OP had defaulted on completing the project on time, TCHFL stopped disbursement of loan to the OP. The complainants had not defaulted towards EMIs to TCHFL till 09.09.2016. The present complaint was filed on 14.07.2016, much prior to the invocation of arbitration proceedings by TCHFL, which was on 28.06.2017. Arbitration proceedings do not put a bar on the consumer complaint. The Arbitration award has been passed ex-parte without giving any opportunity to contest. Both complainants and OP have filed separate petitions against the said ex-parte arbitration award, which are pending before the Hon'ble Bombay High Court.
8. The contention of OP that this Commission lacks pecuniary jurisdiction is not valid. Under Section 21 of the Act, Commission has the jurisdiction where value of goods and services and compensation, if any, claimed exceeds Rs. one crore. The objection that the Complaint is barred by limitation is also not accepted. The OP has failed to deliver the possession of the unit to the complainants till date and therefore, the cause of action is continuing. The contention that complainants are not the consumers as they have purchased the unit for commercial purpose is also rejected as no such evidence has been adduced by the OP in this regard. The plea of OP that delay was due to force majeure circumstances is not valid as even after a gap of more than 05 years from the committed date given in the ABA, possession of flat has not been given. There is no documentary evidence to support the contention of the Opposite Party that the reasons pleaded by them, can be construed as 'Force Majeure. The contention of the OP that the parties are bound by the agreement is also not acceptable. Hon'ble Supreme Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raglivan II (2019) CPJ 34 (SC) decided on 02.04.2019 held that "a term of a contract will not be final and binding if it is shown that the flat purchasers had no option to sign on the dotted line, on a contract framed by the builder ......... the incorporation of one sided clause in an agreement constitute an unfair trade practice as per Section 2 (r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling flats by the builder ........., the appellant-builder cannot seek to bind the respondent with such one sided contractual terms."
9. In the instant case, there is a delay in handing over the possession of flat by the OP. The complainants cannot be made to wait for an indefinite time and suffer financially. Hence, the complainants in the present circumstances have a legitimate right to claim refund along with fair delay compensation/interest from the OP The plea of OP for entitlement of compensation to the complainants in accordance with provisions of the ABA is not valid. Considering that TCHFL have pursued their arbitration proceedings, the entitlement of refund to the Complainants in the present case is limited to the amount directly paid by complainants to the Opposite Party.
10. For the reasons stated hereinabove, and after giving a thoughtful consideration to the entire facts and circumstances of the case, various pleas raised by the learned Counsel for the Parties, the Consumer Complaint is allowed/disposed off with the following directions/reliefs: -
(i) The OP shall refund the amount of Rs.20,69,900/- (Rupees twenty lakh sixty nine thousand nine hundred only) to the complainants, along with compensation in the form of simple interest @ 9% per annum from the date of each payment till the date of refund. The amount refundable mentioned in this para is subject to verification of actual amount paid by the complainants based on receipts etc.
(ii) The OP shall pay a sum of Rs.25,000/- as cost of litigation to the complainants.
(iii) OP may settle the dues of TCHFL and take back the possession of the unit in question or pursue other remedies available to them against TCHFL.
11. The pending IAs, if any, also stand disposed off.
......................J RAM SURAT RAM MAURYA PRESIDING MEMBER ...................... DR. INDER JIT SINGH MEMBER