State Consumer Disputes Redressal Commission
Shafali Agarwal vs Ireo Grace Realtech Private Limited on 23 October, 2024
C.NO.-151/2021 DOD: 23.10.2024
MS. SHAFALI AGARWAL & ANR. VS IREO GRACE REALTECH PRIVATE LIMITED
IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL
COMMISSION
Date of Institution: 18.08.2021
Date of hearing: 08.04.2024
Date of Decision: 23.10.2024
COMPLAINT CASE NO. 151/2021
IN THE MATTER OF
Ms. SHAFALI AGARWAL,
W/O MUKUL AGARWAL,
R/O HOUSE NO. 10, CHATTARPUR,
MINI FARM, MANDIR ROAD,
NEW DELHI
.... COMPLAINANT
(Through: PSP LEGAL, Advocates & Solicitors)
VERSUS
IREO GRACE REALTECH PRIVATE LIMITED,
THROUGH ITS DIRECTORS,
HAVING ITS REGISTERED OFFICE AT:
C-4, 1ST FLOOR, MALVIYA NAGAR,
SOUTH DELHI, DELHI-110017.
.... OPPOSITE PARTY
(Through: Sastra LEGAL, Advocates & Solicitors)
ALLOWED Page 1 OF 12
C.NO.-151/2021 DOD: 23.10.2024
MS. SHAFALI AGARWAL & ANR. VS IREO GRACE REALTECH PRIVATE LIMITED
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL, PRESIDENT
HON'BLE MR. J.P. AGRAWAL, MEMBER (GENERAL)
Present: Mr. Siddharth Karnawat (Ph. No. 7665503214), Counsel for
Complainant.
Mr. Akash Gupta (Ph No. 9868043624), Counsel for the OP.
PER: HON'BLE MR. J.P. AGRAWAL, MEMBER (GENERAL)
JUDGMENT
1. The Complainant has filed the present complaint against the Opposite Party on 18.08.2021 seeking following reliefs:
a) Direct the Opposite Party, for an immediate 100% refund of the total amount paid by the Complainant, along with a penal interest of 18% per annum from the date of the receipt of each payment made to the Opposite Party.
b) Direct the Opposite Party, to pay compensation of Rs. 5,00,000/-
(Rupees Five Lakhs Only) to the Complainant for the mental agony, harassment, discomfort and undue hardship caused to the Complainant as a result of the above acts and omissions on the part of the Opposite Party;
c) Direct the Opposite Party, to pay a sum of Rs.1,00,000/- (Rupees One Lakh Only) to the Complainant towards litigation costs; and
d) That any other and further relief in favor of the Complainant as the Hon'ble Commission may deem fit and proper in the facts and circumstances of the case.
2. Brief facts necessary for the adjudication of the present complaint are that Complainant booked an Apartment for a total consideration of Rs. 1,63,86,121.28/- in the Project "The Corridors" situated at Sector- 67A, Gurugram, Haryana being developed by the Opposite Party. The ALLOWED Page 2 OF 12 C.NO.-151/2021 DOD: 23.10.2024 MS. SHAFALI AGARWAL & ANR. VS IREO GRACE REALTECH PRIVATE LIMITED Complainant had booked an Apartment to provide for a residence for herself and her family members and the same was not booked for any commercial purpose. The Opposite Party announced and advertised the Project in dispute as a luxurious residential complex with spacious houses and 10 (ten) acres of interlinked contiguous landscaped greens along with various other amenities ranging from plush restaurants and elaborate banqueting facilities to a large swimming pool and specialised services such as spa, a separate kid's club, reading room, community retail and a meditation centre.
3. Complainant booked the Apartment by paying a booking amount of Rs. 14,00,000/- to the Opposite Party on 01.03.2013. That the Complainant was allotted an Apartment bearing no. CD-C8-06-0602, on the 6th floor, in tower C8, admeasuring 1483.93 sq. ft. vide Allotment Letter dated 07.08.2013, after a delay of 5 months from the date of Booking the Apartment with the Opposite Party. Thereafter, the Opposite Party executed an Apartment Buyer's Agreement dated 07.11.2014 in favor of the Complainant, after a delay of more than one year from the date of booking of the Apartment. The Opposite Party has charged exorbitant Preferential Location- Charges @ Rs. 1196 per sq. ft. as per Clause 3.2.2 of the Agreement. That the Agreement contained various arbitrary, one-sided and unreasonable terms and conditions, however the Complainant could not negotiate any of the clauses. That the Complainant feared cancellation of the Apartment and forfeiture of the earnest money, i.e 20% of the total sale consideration as per Clause 6 of the Agreement, and thus had no other option but to sign on the dotted lines. The Complainant had opted for the construction linked payment plan as set out in Annexure IV of the Agreement.
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MS. SHAFALI AGARWAL & ANR. VS IREO GRACE REALTECH PRIVATE LIMITED
4. It is the case of the Complainant that as per Clause 13.3 of the Agreement, the Opposite Party was obligated to deliver possession of the Apartment within a period of 42 (forty-two) months from the date of approval of the building plans and/or fulfillment of the preconditions imposed thereunder along with a grace period of 6 (six) months. Opposite Party has collected an amount of Rs. 1,90,35,870/- (Rupees One Crore Ninety Lakh Thirty-Five Thousand Eight Hundred and Seventy Only) in lieu of consideration of the Apartment till date. It has been submitted that despite having collected more than 100% of the entire consideration, the Opposite Party has inordinately delayed the completion of the Project and has also failed to provide any justification for the delay. That the inordinate delay caused in completion of the Project is solely attributable to the Opposite Party and inordinate delay in delivering possession of the Apartment clearly shows the deficiency of service on the part of the Opposite Party.
5. Complainant has stated that Opposite Party kept raising demands from the Complainant without reaching the requisite stage of construction, contrary to the Construction Linked Payment Plan as per Annexure-IV of the Agreement. That the Opposite Party arbitrarily raised a demand of Rs. 1,07,09,903/- (Rupees One Crore, Seven Lakh, Nine Thousand, Nine Hundred and Three Only) vide demand letter dated 02.06.2016 without reaching the requisite stage of construction. That the Opposite Party in order to strong arm the Complainant to make the payment, cancelled the Apartment booked by the Complainant vide letter dated 01.09.2016. That the Opposite Party restored the Apartment booked by the Complainant vide letter dated 05.10.2016 only after collecting an amount of Rs. 1,20,15,188/- (Rupees One Crore, Twenty Lakh, ALLOWED Page 4 OF 12 C.NO.-151/2021 DOD: 23.10.2024 MS. SHAFALI AGARWAL & ANR. VS IREO GRACE REALTECH PRIVATE LIMITED Fifteen Thousand, One Hundred and Eighty-Eight) towards consideration of the Apartment and further an amount of Rs. 22,89,577/- (Rupees Twenty Two Lakh, Eighty Nine Thousand, Five Hundred and Seventy Seven Only) towards delayed payment interest as on 05.10.2016.
6. It is the case of the Complainant that that the Hon'ble Supreme Court in Ireo Grace Realtech Put. Ltd. v. Abhishek Khanna [Civil Appeal No.5785 of 2019; decided on 11.01.2021] against the same Opposite Party and for the same Project has directed the Opposite Party to refund the entire amount deposited by the Respondents (Complainants) along with interest @ 9% simple interest per annum within a period of 4 weeks, failing which the developer would be liable to pay interest @ 12% simple interest per annum till the payment is made. Furthermore, with respect to the Towers wherein the Opposite Party has failed to obtain Occupation Certificate and offer possession, the Hon'ble Apex Court has held as follows:
"Chart B allottees
(i) In so far as the allottees in Chart B are concerned, they have paid part consideration, in most cases up to the 4th instalment till 2017, when they found that there was no progress being made in respect of the Towers in which the apartments had been allotted to them. It is an admitted position that Occupation Certificate for Towers A1, A2, A3, B7, C9 and C11, in which the allotments have been made for this category has not been issued by the Municipal Corporation. The apartments have not been ready for allotment even as on 30.06.2020, as per the date fixed before the RERA Authority.
(ii) The allottees submitted that they were facing great hardship since they had obtained loans from Banks for purchasing these apartments, and were paying high rates of interest. In 2017, when they realised that there was no construction activity in progress, they were ALLOWED Page 5 OF 12 C.NO.-151/2021 DOD: 23.10.2024 MS. SHAFALI AGARWAL & ANR. VS IREO GRACE REALTECH PRIVATE LIMITED constrained to file consumer complaints before the National Commission, and then discontinued payment of further instalments.
(iii) The Developer made an alternate offer of allotment of apartments in Phase 1 of the project. The allottees are however not bound to accept the same because of the inordinate delay in completing the construction of the Towers where units were allotted to them. The Occupation Certificate is not available even as on date, which clearly amounts to deficiency of service. The allottees cannot be made to wait indefinitely for possession of the apartments allotted to them, nor can they be bound to take the apartments in Phase 1 of the project. The allottees have submitted that they have taken loans, and are paying high rates of interest to the tune of 7.9% etc. to the Banks.
Consequently, we hold that the allottees in Chart B are entitled to refund of the entire amount deposited by them."
7. Dasti notice of the Complaint along with a copy of the entire complaint was served by hand to the Opposite Party at their registered office situated at Ireo Campus, Archview Drive, Golf Course Extension Raod, Sector-59, Near Behrampur, Gurgaon on 06.02.2023, as per an affidavit of service dated 16.02.2023 (duly supported by documentary evidence) filed by Mr. Arjun Kumar, Clerk for the Advocates of the Complainant. However, despite service of the dasti notice and emails, written statement was not filed on behalf of the Opposite Party. Therefore, vide order dated 11.04.2023, the right of the Opposite Party to file written statement was closed.
8. Complainant has filed evidence by way of Affidavit and has stated that she anticipated possession the apartment in dispute would be offered within the time promised i.e. by November, 2018. The Opposite Party kept raising demands from her without reaching the requisite stage of construction, contrary to the Construction Linked Payment Plan as per annexure - IV of the Agreement. However, no ALLOWED Page 6 OF 12 C.NO.-151/2021 DOD: 23.10.2024 MS. SHAFALI AGARWAL & ANR. VS IREO GRACE REALTECH PRIVATE LIMITED offer of possession was issued by November, 2018. The Opposite Party falsely assured that the Project would be completed and delivered soon and she was under constant threat by the Opposite Party of being charged exorbitant interest @ 20% simple interest per annum as per Clause 7.4 of the Agreement for any delay in making payment to the Opposite Party. The Opposite Party has collected an amount of Rs. 1,90,35,870/- in lieu of consideration of the apartment and despite having collected more than 100% of the entire consideration, the Opposite party has inordinately delayed the completion of the project. The inordinate delay in delivering possession of the Apartment clearly shows the deficiency of service on the party of the Opposite Party.
9. Both parties have filed short written submissions along with judgments, being relied upon.
10. In written synopsis, the Complainant has relied on the Judgment of Hon'ble Supreme Court in the case of Ireo Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna [Civil Appeal No. 5785 of 2019] decided on 11.01.2021 and Hon'ble National Consumer Disputes Redressal Commission in Consumer Complaint No. 2236 of 2016 titled as Sanjay Gopinath v. M/S. Ireo Grace Realtech Private Ltd. against the same Opposite Party and for the same project. It was directed that Opposite Party shall refund the entire amount deposited by the Complainants along with interest @ 9 % simple interest per annum within a period of four weeks, failing which the developer would be liable to pay interest @ 12% simple interest per annum till the payment is made. In this case, it was also directed that the Opposite Party-Developer shall not deduct the Earnest Money of 20 % from the principal amount, or any other amount as mentioned in Clause 21.3 of ALLOWED Page 7 OF 12 C.NO.-151/2021 DOD: 23.10.2024 MS. SHAFALI AGARWAL & ANR. VS IREO GRACE REALTECH PRIVATE LIMITED the Agreement, on account of the various defaults committed by the Developer, including the delay of over 7 months in obtaining the Fire NOC.
11. It is the case of the Complainant that Opposite Party as per clause 13.3 of the Agreement promised to deliver possession of the Unit to the to the Complainant within 42 months from the date of approvals of building plans with an additional grace period of 180 days i.e. on 27.11.2018 as the date of Fire NOC was obtained by the Opposite Party on 27.11.2014 as considered in the case of Ireo Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna [Civil Appeal No. 5785 of 2019]. Thus, inordinate delay of more than 3 years for completion of project i.e. in the year 2022 is unreasonable and the Opposite Party is liable to compensate the Complainant by paying adequate interest and damages towards financial loss and mental agony and hardships cause to her.
12. The Complainant has further relied on the judgment of Fortune Infrastructure & Anr. V. Trevor D'Lima & Ors in Civil Appeal No(s). 3533-3534 of 2017, the 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. The Apex Court in Kolkata West International City Pvt Ltd. Vs. Devasis Rudra in Civil Appeal No. 3182 of 2019 (SLP(C) No (s). 1795 of 2017) (decided on 25.03.2019). The Court held that a buyer cannot be expected to wait for possession of the unit indefinitely and the delay cannot be unreasonable.
13. The Opposite Party, in written synopsis has stated that building plan was approved on 23.07.2013, Fire safety approval was obtained on 27.11.2014 and Occupation Certificate for C8 i.e. the building in which the flat of the Complainant was located, was granted on ALLOWED Page 8 OF 12 C.NO.-151/2021 DOD: 23.10.2024 MS. SHAFALI AGARWAL & ANR. VS IREO GRACE REALTECH PRIVATE LIMITED 27.01.2022/29.01.2022 and notice of possession was issued on 16.02.2022.
14. The Opposite Party has relied on the judgment dated 11.01.2021 in Civil Appeal No. 5785 of 2019 titled as Ireo Grace Realtech Pvt. Ltd. v. Abhishek Khanna & Ors. In this matter, Hon'ble Supreme Court has directed that the allottee in Chart B are entitled to refund of the entire amount deposited by them. Further, Hon'ble Court has directed - We think it would be in the interest of justice and fairplay that the amounts deposited by the Apartment Buyers is refunded with Interest @ 9 % S.I. per annum from 21.11.2018 till the date of payment of the entire amount.
15. The Opposite Party has further relied upon the judgment of Hon'ble National Consumer Disputes Redressal Commission in Consumer complaint No. 828 of 2020 titled as Tarun Kumar & Anr. V. Ireo Grace Realtech Pvt. Ltd. Hon'ble National Consumer Disputes Redressal Commission has directed the Opposite Party to refund the amount of Rs. 1,49,51,778.40/- deposited by the Complainants along with a delay compensation @ 9% p.a. from the proposed date of completion which is 27.11.2018 till the date of offer of possession i.e. 16.02.2022, within a period of two months of this order. Any delay beyond two months, will attract an interest rate of 12% p.a. for the same period.
16. The first question for consideration is whether the Opposite party is deficient in providing its services to the Complainant?
17. The expression Deficiency of Service has been dealt with by the Hon'ble Apex Court in Arifur Rahman Khan and Ors. vs. DLF Southern Homes Pvt. Ltd. and Ors. reported at 2020 (3) RCR (Civil) 544, wherein it has been discussed as follows:
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MS. SHAFALI AGARWAL & ANR. VS IREO GRACE REALTECH PRIVATE LIMITED "23. .......The expression deficiency of services is defined in Section 2 (1) (g) of the CP Act 1986 as:
(g) "deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.
24. A failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within a contractually stipulated period amounts to a deficiency. There is a fault, shortcoming or inadequacy in the nature and manner of performance which has been undertaken to be performed in pursuance of the contract in relation to the service. The expression 'service' in Section 2(1) (o) means a service of any description which is made available to potential users including the provision of facilities in connection with (among other things) housing construction. Under Section 14(1)(e), the jurisdiction of the consumer forum extends to directing the opposite party inter alia to remove the deficiency in the service in question. Intrinsic to the jurisdiction which has been conferred to direct the removal of a deficiency in service is the provision of compensation as a measure of restitution to a flat buyer for the delay which has been occasioned by the developer beyond the period within which possession was to be handed over to the purchaser. Flat purchasers suffer agony and harassment, as a result of the default of the developer. Flat purchasers make legitimate assessments in regard to the future course of their lives based on the flat which has been purchased being available for use and occupation. These legitimate expectations are belied when the developer as in the present case is guilty of a delay of years in the fulfilment of a contractual obligation."
18. At this stage, we deem it appropriate to refer to clause 13.3 of the apartment buyer agreement 07.11.2014 entered into by both the contesting parties. It reflects that the Opposite Party was bound to hand over the possession of the said apartment within 42 months from the date of approval of building plans plus 180 days of grace ALLOWED Page 10 OF 12 C.NO.-151/2021 DOD: 23.10.2024 MS. SHAFALI AGARWAL & ANR. VS IREO GRACE REALTECH PRIVATE LIMITED period, after the expiry of said commitment period to allow for unforeseen delays beyond the reasonable control of the company. We find that instead of handing over the possession on the due date i.e. 27.11.2018, the offer of possession was made on 16.02.2022. Thus, there was an inordinate delay of more than 3 years & 2 months, in offering the possession.
19. Relying on the above settled law, we hold that the Opposite Party is deficient in providing its services to the Complainant as the Opposite Party had given false assurance to the Complainant with respect to completion of the construction of the said project and had the kept the hard-earned money of the Complainant. \
20. We have gone through the facts of the case and the judgment of Hon'ble Supreme Court dated 11.01.2021 in Civil Appeal No. 5785 of 2019 titled as Ireo Grace Realtech Pvt. Ltd. v. Abhishek Khanna & Ors., relied by both parties. We find that the facts of both cases are similar i.e. an allottee in Chart B Towers (Apartment No. - CD-C8-06-602), same Opposite Party & with identical facts. Therefore, in line with the principle laid down by Hon'ble Supreme Court, the Opposite Party is directed to - A. Refund the entire amount deposited by the Complainant along with an interest of @ 9 % simple interest per annum from 27.11.2018 till the date of payment of the entire amount, within a period of two months of this order. B. Any delay beyond two months as mentioned in A above, shall attract an interest @ 12% per annum for the same period.
C. Rs. 5,00,000/- is awarded as cost for mental agony and harassment to the Complainant; and ALLOWED Page 11 OF 12 C.NO.-151/2021 DOD: 23.10.2024 MS. SHAFALI AGARWAL & ANR. VS IREO GRACE REALTECH PRIVATE LIMITED D. Pay litigation cost to the extent of Rs. 50,000/- to the Complainant.
23. Application(s) pending, if any, stand disposed of in terms of the aforesaid judgment.
24. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
25. File be consigned to record room along with a copy of this Judgment.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (J.P. AGRAWAL) MEMBER (GENERAL) Pronounced On:
23.10.2024 ALLOWED Page 12 OF 12