National Consumer Disputes Redressal
Apoorv Bansal vs M/S. Vatika Ltd. on 28 January, 2022
Author: R.K. Agrawal
Bench: R.K. Agrawal
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 1119 OF 2018 1. APOORV BANSAL R/o A-54, East of Kailash New Delhi - 110065 ...........Complainant(s) Versus 1. M/S. VATIKA LTD. Vatika Group
7th Floor, Sushant Lok-I, Block-A, Mehrauli-Gurgaon Road, Gurgaon - 122002 Haryana ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT HON'BLE DR. S.M. KANTIKAR,MEMBER
For the Complainant : For the Complainant : Ms. Himani Aggarwal, Advocate For the Opp.Party : For the Opposite Party : Mr. Ayshwarya Chander, Advocate
Dated : 28 Jan 2022 ORDER
1. The present amended Consumer Complaint has been filed under Section 21 of the Consumer Protection Act, 1986 (for short "the Act")by the Complainant, Shri Apoorv Bansal against Opposite Party Builder, M/s. Vatika Ltd. (hereinafter referred to as 'the Builder') seeking refund of the amount paid by him to the Builders towards purchase of the Residential Unit alongwith interest and compensation.
2. The facts as narrated in the Complaint are that the Complainant had booked a Residential Apartment in the Project, namely "Tranquil Heights - Vatika India Next", Sector 82A, Gurgaon to be developed by the Opposite Party Builder,by paying a booking amount of ₹8 lakh on 2.11.2013. The total Sale Consideration of the Apartment was ₹1,36,25,625/- (Rupees One Crore Thirty Six Lakh Twenty Five Thousand Six Hundred and Twenty Five only) which was to be paid in terms of Construction Linked Plan. Vide Allotment Letter, dated 29.09.2014,the Complainant was allotted Unit No. E-703 located on7th Floor in Tower No. E having Super Area of 2290 sq. ft. It is alleged by the Complainant that the terms of the allotment were simply dictated to him and he had no option except to sign the Allotment letter under duress. Further, in the Allotment Letter, no date for handing over the possession of the allotted Unit was mentioned and it was orally affirmed by the Builder that the possession of the subject Apartment would be handed over within three years from the date of booking i.e., by November, 2016.
The Complainant made all the payments from time to time as demanded by the Opposite Party Builder. It is averred that after a long communication, the Opposite Party Builder finally sent the Builder Buyer Agreement to the Complainant for execution Vide Letter dated 23.06.2015, whereby the total sale consideration of the allotted Unit was stated to be ₹1,65,73,875/- (Rupees One Crore Sixty Five Lacs Seventy Three Thousand Eight Hundred and Seventy Five Only). As per Clause 13 of the Agreement, the construction of the Building/Apartment was to be completed by the Builder within 48 months from the date of execution of the Builder Buyer Agreement, meaning thereby that the possession should have been handed over to the Complainant on or before 22.05.2019. Since, some of the terms and conditions of the Builder Buyer Agreements were one sided and totally in favour of the Opposite Party Builder, the Complainant refused to sign the same and requested the Builder either to change the disputed terms and conditions of the Builder Buyer Agreement or refund the amount deposited by him. However, no Builder Buyer Agreement was executed between the Complainant and the Opposite Party Builder. While the Complainant was awaiting the amended/fresh Builder Buyer Agreement, he came to know that the Tower E where he was allotted the Residential Unit, was not approved by the Competent Authorities and only Towers A and B were approved that too in October 2015. However, the Opposite Party Builder started raising demands from November 2013. Vide e-mail dated 09.11.2015, the Complainant requested the Opposite Party Builder to refund the deposited amount with interest @ 18% p.a. In response, vide email dated 10.11.2015, the Opposite Party Builder informed the Complainant that his request for cancellation of the booking could not be acceded to. Again, vide email dated 11.03.2017, the Complainant pointing out shortcoming on the part of Opposite Party Builder, requested them to refund the deposited amount. In reply, vide email dated 16.03.2017, the Opposite Party Builder informed the Complainant that in case of cancellation of the booking, they would be entitled to make deductions out of the deposited amount, as per the terms and conditions of the Builder Buyer Agreement which the Complainant protested vide email dated 03.07.2017 and again requested the Builder to refund the deposited amount. The Opposite Party Builder neither replied the said email nor refunded the amount to the Complainant. In April 2018, Complainant visited the site and found that there was no development and eventhe environment clearance was not obtained by the Builder for construction of Tower E. On approaching the Builder, they failed to give any expected date of handing over the possession of the Unit. The Complainant alleges that the Opposite Party, utilizing its dominant position, has extracted a sum of ₹45,05,435/- (Rupees Forty Five Lacs Five Thousand Four Hundred and Thirty Five Only), however they have failed to utilize the funds towards the construction of the Unit as the present stage of construction has not even reached the laying of the Ground Floor Level. The Complainant had lost faith in the Builder and sought refund of the amount deposited from the Builder vide emails dated11.03.2017 and 03.07.2017 but the Opposite Party Builder did not refund the money. It is further stated that in terms of clause 7 of the Builder Buyer Agreement, the Opposite Party Builder was entitled to recover simple interest @ 18% p.a. on the unpaid amount from the Complainant but as per clause 17 and 18 of the said Agreement, only a compensation of ₹7.50 per sq. ft of the super area per month was payable for delay in handing over the possession. Alleging deficiency in service and Unfair Trade Practice on the part of the Opposite Party Builder, the Complainant has filed the present Complaint before this Commissionwith following prayer:-
"a) Direct the Opposite Party to refund the amount paid so far by the Complainant i.e., ₹45,05,435/- (Rupees Forty Five Lacs Five Thousand Four Hundred and Thirty Five Only) to the Complainant together with interest of ₹41,50,013/- (Rupees Forty One Lacs Fifty Thousand and Thirteen Only) calculated @18% p.a. compounded annually from the date of respective payments by the Complainant till 02.04.2018, in favour of the Complainant. Also, interest at the same rate for the period after 02.04.2018 till the date of payment of entire amount by the Opposite Party to the Complainant may also be awarded in favour of the Complainant.
b) Direct the Opposite Parties to pay a sum of ₹30,00,000/- (Rupees Thirty Lakhs Only) to the Complainant as per para 34 above, towards damages/compensation for the deficient services, unethical trade practices and restrictive trade practices adopted by the Opposite Party, and towards the physical and mental torture, agony, discomfort and undue hardships suffered by the Complainant as a result of the above acts/omissions on the part of the Opposite Party;
c) Direct the Opposite Party to pay a sum of ₹1,50,000/- (Rupees One Lac and Fifty Thousand Only) to the Complainant towards the cost of litigation"
3. The Opposite Party Builder resisted the Complaint and filed its Written Version raising the preliminary objections that the Complaint is not maintainable for want of pecuniary jurisdiction since the total consideration paid by the Complainant is only ₹45,05,435/- which is less than the pecuniary jurisdiction of ₹1,00,00,000/- (Rupees One Crore Only) of this Commission and the Complainant is merely an investor and had booked the subject Apartment for an investment. Hence, the Complainant is not a "Consumer" as defined in Section 2(1)(d) of the Act. It is further contended that there has been a substantial delay in filing the present Complaint in May 2018 as the cause of action has arose in favour of the Complainant on 09.11.2015 when he sought the refund of the deposited amount through an email and as such the Complaint is hopelessly barred by limitation. On merits, it is pleaded that; the issues relating to diversion of funds, grant of environmental clearance etc. can be adjudicated only after detailed trial and on adducing cogent evidence which cannot be done in summary proceedings of the Consumer Fora and, therefore, the parties ought to have been relegated to a Civil Court; the Complaint is replete with misrepresentation and concealment of important facts; Complaint is nothing but gross abuse of the process of law; Vide letter dated 23.06.2015, the Builder Buyer Agreement was sent to the Complainant for signatures and it was made clear that in case the Complainant fails to sign and return the Agreement within 30 days, the Opposite Party Builder shall have the right to terminate the booking and refund the deposited amount after making deduction of the earnest money, brokerage and other non-refundable charges; as per clause 13 of the Agreement, the construction of the Unit was to be completed within a period of 48 months from the date of execution of the Agreement and hence, the Complaint filed in May 2018 is pre-mature; the Complainant is a defaulter in making the payment of installments at time; since, there was no deficiency in service on the part of the Opposite Party Builder, the Complaint deserves to be dismissed with heavy cost.
4. It is relevant to mention here that vide Order dated 25.05.2018, the relief claimed in the Complaint was restricted to refund of the amount deposited by the Complainant along with reasonable compensation.
5. We have heard the learned Counsel for the Parties and perused the material available on record.
6. In support of his case, Learned Counsel appearing for the Complainant has placed reliance on the decision dated 22.01.2020 rendered by this Bench itself in the case of Yash Pal Sabharwal & Ors. Vs. Vatika Ltd.-Consumer Case No. 1874 of 2018 and Order dated 23.10.2017 passed by a Coordinate Bench of this Commission in Amit Kansal Vs. M/s. Vatika Limited-Consumer Case No. 1244 of 2015 which relate to the same Project, i.e. "Vatika Tranquil Heights", Sector 82, Gurgaon.
7. We find that the defence taken by the Builder in the present Complaint is more or less similar to that taken in the aforesaid Consumer Complaints. While dealing with the similar reasons taken by the Builder for delay in handing over the possession of the allotted Apartments in the afore referred Complaints, this Bench has observed as under:-
"4. Coming to the Preliminary Objections, it is admitted by the Opposite Party in the Written Statement that vide e-mail dated 26.04.2018 they had informed that the possession/completion of the Project was expected by 2022. But they submitted that the year had been inadvertently mentioned as 2022 instead of 2019. If this was the case, the Opposite Party should rectify the mistake and inform the Complainants that the possession will be given by 2019 but it failed to do so. It proves that it is an afterthought. Even today, in the year 2020, they are not in a position to handover the possession of the Unit. Seeing the overall position and conduct of the Opposite Party it is held that the Complaint is not pre-matured and Complaint has been filed within time. Further, the plea of the Opposite Party that the Complainants had booked the Unit for the purpose of investment and not for their own use, is not supported by any documentary evidence and, therefore, it cannot be said that the Complainant is not a consumer under Section 2 (1)(d) of the Consumer Protection Act, 1986. In so far as, the plea regarding forfeiture of Earnest Money is concerned, such one-sided clauses which are only in favour of the Builder, in the Builder Buyer Agreements are termed as 'Unfair Trade Practice' by the Hon'ble Supreme Court in "Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan (2019) 5 SCC 725" wherein the Apex Court 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."
5. On merits, the booking and the allotment made to the Complainants have neither been disputed nor has the Opposite Party disputed the payment received from the Complainants. We place reliance on the judgment of the Hon'ble Supreme Court in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra - II (2019) CPJ 29 SC, in which the Hon'ble Apex Court has observed as hereunder:-
".....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."
8. Similarly, in Amit Kansal's case (Supra), while dealing with the defence taken by the Opposite Party Builder, the Coordinate Bench of this Commission has held as under:-
"8. The first issue which needs consideration pertains to the pecuniary jurisdiction of the National Commission to entertain the instant consumer complaint. Section 21 (a) of the Consumer Protection Act, 1986 deals with the pecuniary jurisdiction of the National Commission and it provides that National Commission shall have jurisdiction to entertain the complaints where the value of goods or services and compensation, if any, exceeds ₹1.00 crore. Now, the question is what is the value of service offered by the opposite party to the complainant. In this regard, it is pertinent to mention that Larger Bench of this Commission in the matter of Ambrish Kumar Shukla and Ors. Vs. Ferrous Infrastructure Pvt. Ltd. in Consumer Case No. 97 of 2016 vide its order dated 07.10.2016 has observed as under:
" It is evident from a bare perusal of Sections 21, 17 and 11 of the Consumer Protection Act that it's the value of the goods or services and the compensation, if any, claimed which determines the pecuniary jurisdiction of the Consumer Forum. The Act does not envisage determination of the pecuniary jurisdiction based upon the cost of removing the deficiencies in the goods purchased or the services to be rendered to the consumer. Therefore, the cost of removing the defects or deficiencies in the goods or the services would have no bearing on the determination of the pecuniary jurisdiction. If the aggregate of the value of the goods purchased or the services hired or availed of by a consumer, when added to the compensation, if any, claimed in the complaint by him, exceeds ₹ 1.00 crore, it is this Commission alone which would have the pecuniary jurisdiction to entertain the complaint. For instance if a person purchases a machine for more than ₹1.00 crore, a manufacturing defect is found in the machine and the cost of removing the said defect is ₹10.00 lacs, it is the aggregate of the sale consideration paid by the consumer for the machine and compensation, if any, claimed in the complaint which would determine the pecuniary jurisdiction of the Consumer Forum. Similarly, if for instance, a house is sold for more than ₹1.00 crore, certain defects are found in the house, and the cost of removing those defects is ₹5.00 lacs, the complaint would have to be filed before this Commission, the value of the services itself being more than ₹1.00 crore."
9. In view of the above, it is clear that for the purpose of pecuniary jurisdiction, the value of services hired or availed plus compensation shall be the value for the purpose of pecuniary jurisdiction. Admittedly, the subject apartment was allotted to the complainant in consideration of ₹1,50,50,925/- to be paid as per the payment schedule. Thus, it is clear that value of the services promised by the opposite party was more than ₹1.00 crore. Therefore, in our considered view, this Commission has jurisdiction to entertain the complaint.
10. Next contention of learned counsel for the opposite party is that the complaint is not maintainable because the complainant is not a consumer as he had booked the subject flat with intention to sell the same on profit in secondary market after some time. In order to succeed on this objection, the opposite party was required to lead evidence to show that complainant had booked the subject flat with intention to sell the same on profit. No evidence whatsoever to substantiate this plea has been led. Therefore, we do not find merit in the contention of learned counsel for the opposite party. Preliminary objection is, therefore, dismissed.
11. Coming to the merits of the case. It is not in dispute that complainant applied for booking of a flat alongwith initial payment of ₹8.00 lakhs in December 2013. It is also not disputed that the request made by the complainant vide such application was accepted and he was allotted priority number 170. It is also not in dispute that thereafter the complainant kept on making payment in instalments against the agreed consideration amount and in all he has paid ₹42,59,887/- till June 2014 and that thereafter vide letter dated 16.07.2015, the opposite party forwarded two copies of builder buyer agreement to the complainant calling upon him to sign the agreement and send it back to the opposite party.
12. Learned counsel for the complainant has contended that copy of builder buyer agreement received by him was one sided and fully loaded in favour of the opposite party having no protection for interest of the complainant. The complainant, therefore, called upon the opposite party to remove some arbitrary clauses but the opposite party refused to oblige. Therefore, the complainant was compelled to ask for refund. The opposite party instead of refunding the amount insisted on deducting the earnest money and certain other amounts stated to have been paid to the government against service tax and TDS. It is argued that aforesaid conduct of the opposite party is unjust and amounts to unfair trade practice as also deficiency in service. Learned counsel has contended that, therefore the opposite party is bound to refund the money received from the complainant with interest. Counsel for the opposite party has contended that since the complainant backed out of the contract, the opposite party is entitled to deduct the earnest money from the amount paid as also the amounts paid to the government towards service charges and TDS. It is argued that at the time of booking, the complainant was fully aware that he would be required to sign the standard terms and conditions of builder-buyer agreement and he was aware of those conditions. Learned counsel has contended that opposite party has deliberately concealed the fact that he was issued an allotment letter dated 14.10.2014 which contain the terms and conditions of the contract between the parties.
13. From the evidence of the parties and the documents placed on record, it is established that the builder-buyer agreement was sent to the complainant for his signatures vide letter dated 16.07.2015 and by that time, the opposite party has already received Rs42,59,887/- against the consideration amount. According to the complainant, the terms and conditions of the builder-buyer agreement sent to him for signatures were not acceptable to him, therefore, he sought changes but opposite party declined to make changes in the agreement. Therefore, the complainant was justified in seeking refund of his money with interest. Although learned counsel for the opposite party has contended that complainant was aware of terms and conditions of the builder-buyer agreement since beginning but no evidence to establish this fact has been led. Thus, it is amply clear on record that opposite party called upon the complainant to sign the builder buyer agreement after having received huge amount against the agreed consideration amount. It is pertinent to note that undisputedly, the copy of the builder buyer agreement was sent for signatures of the complainant vide letter dated 16.07.2015.
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16. The above terms and conditions do not contain forfeiture clause. The opposite party is seeking to forfeit the amount paid by the complainant on the basis of proposed builder buyer agreement, which has not been signed by the complainant and which has been the bone of contention. As the builder buyer agreement has not come into existence, it cannot take advantage of forfeiting the earnest money and any other amount deposited by the complainant. Mere fact that opposite party after having received huge amount from the complainant has forwarded the builder buyer agreement for signatures with a threat that failure of the complainant to return the same with signatures within 30 days would entitle the builder to terminate the booking and refund the money paid after deductions, is clear proof of undue coercion exerted by the builder on the complainant, which amounts to unfair trade practice. The complainant is, therefore entitled to sum of ₹42,59,887/- paid by the complainant against the consideration amount."
9. So far as the pecuniary jurisdiction is concerned, in terms of Section 21 of the Consumer Protection Act, 1986, this Commission possesses the requisite pecuniary jurisdiction where the value of the goods or services as the case may be and the compensation claimed exceeds ₹1 Crore. As held by a three Members Bench of this Commission in CC No.97 of 2016 Ambrish Kumar Shukla & Ors. Vs. Ferrous Infrastructure Pvt. Ltd., decided on 07.10.2016, the value of the services in such a case would mean the sale amount agreed to be paid by the flat buyer to the developer, which has been held to lay down the law correctly on the issue relating to pecuniary jurisdiction and the sale consideration which was agreed between the Parties for buying the goods or hiring or availing the services is relevant for determination of pecuniary jurisdiction in cases of refund also by a larger Bench of 5 Members of this Commission in "CC No. 1703 of 2018, Renu Singh vs. Experion Developers Private Limited" and other connected matters" decided on 26.10.2021. In the present case, the Total Sale Consideration (as per Account Statement issued by OP Developer as on 09.12.2016) was ₹1,73,02,0955/- with the Opposite Party Developer. If even a part of the compensation claimed by the Complainant is also added to the said sale consideration, the aggregate would be much above ₹1 Crore. Therefore, it would be difficult to say that this Commission does not possess the requisite pecuniary jurisdiction.
On 13.06.2018, the Learned Counsel appearing for the Complainant sought leave of this Commission to file a letter from the concerned Authorities certifying therein that Tower E in the Project "Tranquil Heights" - Vatika India Next, has not been approved. The Permission was granted. He filed an I.A. No. 14090/18 seeking permission to place on record a copy of letter dated 24.07.2018 received by him from State Environment Impact Assessment Authority, Haryana in response to his RTI application. The contents of the letter are reproduced as under:-
Sl.
No. Desired Information Reply
1.
As per records, please inform whether environment clearance of the project "tranquil heights" in Sector 82 A, Gurgaon by Developer "Vatika Group" has already been provided. In case the EC has been granted, kindly provide a copy of the same.
This case is still under consideration for obtaining Environment Clearance.
2. Please provide information pertaining to the date on which the Developer submitted the application of Environment Clearance.
The Project proponent submitted application on 23.12.2016. It is also accessible on website http://environmentclearance.nic.in/Staterecord.aspex?State Name =Haryana
3. As per record, please inform whether the application submitted for Environment Clearance contains any mention of "Tower E".
There is no mention of Tower "E"
A bare perusal of the aforesaid letter reveals that it is not clear as to when the Opposite Party Builder will be in position to complete the construction and hand over the possession of the Apartment allotted to the Complainant. Under these circumstances and in view of the afore-extracted judgments, the Complainant in the present case cannot be made to wait indefinitely for possession of the Apartment. The Opposite Party Builder is enjoying the benefits of hard-earning money deposited with it by the Complainant. Therefore, the Complainant is entitled for refund of the principal amount with reasonable interest and compensation.
Accordingly, following the decisions rendered by this Commission in the aforesaid cases, we partly allow the present Complaint and direct the Opposite Party Builder to refund the entire deposited amount to the Complainant alongwith compensation in the form of simple interest @ 9% p.a with effect from the date of each payment, till the date of refund. The Opposite Party Builder shall also be liable to pay a sum of ₹50,000/- as costs of litigation to the Complainant. The aforesaid directions shall be complied with within a period of six weeks from the date of receipt of a copy of the Order.
......................J R.K. AGRAWAL PRESIDENT ...................... DR. S.M. KANTIKAR MEMBER