National Consumer Disputes Redressal
Amit Kumar vs M/S Imperia Structure Ltd. on 11 October, 2021
Author: R.K. Agrawal
Bench: R.K. Agrawal
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 2590 OF 2018 1. AMIT KUMAR ...........Complainant(s) Versus 1. M/S IMPERIA STRUCTURE LTD. Through its Managing Director, Having its Office at A-25, mohan Co-operative, Industrial Estate, New Delhi-110044 ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT
For the Complainant : For the Complainant(s) Mr. Rahul Sharma, Advocate For the Opp.Party : For the Opposite Party Ms. Neha Gupta, Advocate
Ms. Rhea Dube, Advocate
Dated : 11 Oct 2021 ORDER
R.K. AGRAWAL, J., PRESIDENT
The present Consumer Complaints have been filed under Section 12(1)(a) read with Section 21 of the Consumer Protection Act, 1986 (for short "the Act") by the Complainants against Opposite Party, M/s. Imperia Structure Ltd. (hereinafter referred to as the Developer) seeking refund of the entire deposited amount collected from them as the Opposite Party Developer failed to hand-over the possession of the Flats booked by them in the Project launched by the Developer in the name and style of "the ESFERA" situated at Sector 37 C, Gurgaon - Dwarka Expressway.
Since the facts involved in these Complaints are similar except for minor variations in the Flats numbers and their sale consideration, these Complaints are being disposed off by this common Order. However, for the sake of convenience, facts as enumerated in Consumer Complaint No. 1044 of 2018 have been discussed at length herein.
The brief facts as set out in the Complaint are that the Opposite Party Developer launched a residential housing scheme known as the "The ESFERA" situated Sector 37-C, Gurgaon-Dwarka Expressway Haryana (hereinafter referred to as 'the Project') in the year 2012. It is stated that the Project was widely advertised by the Developer.Alluring by the advertisement by the Opposite Party Developer, the Complainant approached the Developer where he was assured that the entire Project would be completed with all the facilities as mentioned in the brochures and possession would be delivered within 36 months. On the basis of the assurance given, the Complainant booked a Flat No. 303, 3rd Floor, E Block in the said Project by paying a sum of ₹6,46,374/- on 28.05.2012.As per demand of the Developer, Complainant made payment of ₹6,46,374/- and ₹13,07,998/- on 12.07.2012 and 12.08.2012 respectively.Vide letter dated 12.08.2013 the Developer sent Apartment Buyer Agreement, which had arbitrary terms and conditions.Vide E-mail dated 25.04.2013, the Complainant raised objection against the arbitrary terms and conditions of the Agreement, in response to which the Developer replied that it is a standard format and it could not be changed.The Complainant had to sign the one-sided Apartment Buyer Agreement (hereinafter referred to as 'the Agreement'), under the threat of forfeiture of huge amount. The Agreement was executed between the Parties on 12th August 2013.It is also averred that the Developer has charged Preferential Location Charges (PLC) towards park facing location but there is no place for park as of now.It is also averred that the Opposite Party Developer illegally divided the Project into two phases - Phase I for Towers G, H and I and Phase 2 for Towers A, B, C, D, E.It is averred that as per Clause 10.1 of the Agreement, the promised date of delivery was 12.02.2016 but till date the construction has not been completed.The Complainant had deposited a sum of ₹76,32,142/- with the Opposite Party Developer towards a major part of the sale consideration.Despite that the Opposite Party Developer miserably failed to hand over the possession of the Flat booked by him.It is also averred whenever the Complainant enquired about the date of possession of the Flat every time the Opposite Party Developer gives time of another few months for possession.Alleging Deficiency in Service and Unfair Trade Practices on the part of the Opposite Party Developer, the Complainant has thus filed the present Consumer Complaint with the following prayer:
"A. Direct the Opposite party to immediately handover the possession of the residential flat on payment of final instalment amount, complete in all respects and in conformity with the Brochure and for the consideration mentioned therein, with all additional facilities and as per quality standards promised, and execute all the necessary and required documents in respect of the said apartment in favour of the Complainant;
B. Direct the Opposite party to pay penalty @ 18% per annum on account of delay calculated on the amount deposited by the Complainant, along with all the necessary document and common areas and facilities.
C. Direct the Opposite Party to refund the amount which is has charged towards the preference Location Charges (charged for park facing, corner and third floor) along with the interest @18% p.a.
D. Direct the Opposite party to refund the amount paid by the complainant towards the Club Membership Charges to the Complainant along with the interest @18% p.a.
E. Direct the Opposite party to pay Rs.30,00,000/- (Rupees Thirty Lakhs Only) as the compensation to the Complainant towards the economical losses, mental and physical harassment; and/or
F. Pass such other order or directed as may be deem fit and proper in the facts and circumstances of the case.
Or in Alternative:
A. Direct the Opposite party to refund the amount of Rs.76,32,142/- (Rupees Seventy Six Lakhs Thirty Two Thousand One Hundred Forty two) along with interest @ 18% from the date of deposit till realization.
B. Pass an order directing the Op to pay an amount of Rs.30,00,000/- as Compensation for the loss of opportunity in finding similar accommodation at high price due to rise in the value of land and cost of construction, for deficiency in service, unfair trade practice, mental agony and harassment faced by the complainant;
C. Direct the OP to pay a sum of ₹2,00,000/- for the cost of litigation."
The Opposite Party Developer has filed its Written Version and has denied the contents of the Complaint. It was stated that the Complainant is not a 'Consumer' within the meaning of Section 2(d)(i) of the Act as he has booked the Flat for investment purpose and it pertains to commercial transaction; that the delay in the completion of the Project was on account of delay in getting the all statutory clearances from the concerned Statutory Authorities lack of availability of the raw materials, labour strikes, ban on construction activities and delay in obtaining clearance for water supply and these are not within the control of the Opposite Party and therefore, are governed by force majeure clause under the Agreement.It was also stated that the Project is spread in 17 acres of land and the construction activity is being done in two phases, i.e., Phase I comprises of Towers F, G and H and Phase-II comprises of Towers A, B, C, D and E.Possession of the Flats covered under Phase I has been given to more than 70 families, which are happily residing.Complainant's Flat falls in Phase II, where the construction is going on full swing and the possession of the Flat will be provided as per the timelines provided to RERA.It was also stated that the delay in giving the possession caused due to the reasons which were beyond the control of the Opposite Party Developer.It was also stated that there is no Deficiency in Service or Unfair Trade Practice on their part and prayed that the Consumer Complaint be dismissed.
I have heard Mr. Rahul Sharma, learned Counsel appearing on behalf of the Complainant, Ms. Neha Gupta, learned Counsel appearing on behalf of the Opposite Party Developer and perused the material available on record.
Mr. Rahul Sharma, learned counsel for the Complainants submitted that there is gross Deficiency in Service and Unfair Trade Practice on the part of the Opposite Party Developer that despite receiving ₹76,32,142/- a major part of the sale-consideration, the Developer failed to deliver the possession of the Flat within stipulated period.It was prayed that their Consumer Complaints be allowed in terms of the prayer clause.He submitted that the present Consumer Complaints are covered by a Judgment passed by this Commission against the same Opposite Party Developer regarding the same Project 'The ESFERA' in "CC No. 1605 of 2017 titled as Pinki Saini vs Imperia Structure Ltd. and connected matters" decided on 09.08.2018.
Per Contra, Ms. Neha Gupta, learned Counsel appearing on behalf of the Opposite Party Developer has argued that the delay in the completion of the Project was on account of delay in getting the all statutory clearances from the concerned Statutory Authorities lack of availability of the raw materials, labour strikes, ban on construction activities and delay in obtaining clearance for water supply and these are not within the control of the Opposite Party. It was also stated that the Project is spread in 17 acres of land and the construction activity is being done in two phases, i.e., Phase I comprises of Towers F, G and H and Phase-II comprises of Towers A, B, C, D and E. Possession of the Flats covered under Phase I has been given to more than 70 families, which are happily residing. Complainant's Flat falls in Phase II, where the construction is going on in full swing and the possession of the Flat will be provided as per the timelines provided to RERA. It was also submitted that the delay in giving the possession caused due to the reasons which were beyond the control of the Opposite Party Developer. It was also submitted that there is no Deficiency in Service or Unfair Trade Practice on their part. He prayed that, the Complaints, as filed by the Complainants be dismissed in view of the reasons as substantiated above.
I have given my thoughtful consideration to the various pleas raised by the learned Counsel for the Parties and find that the Complainants entered into Apartment Buyer Agreements with the Opposite Party Developer in the year 2012 and paid a major part of the sale consideration, but admittedly the subject flats are still not completed. For convenience the details of each Complaint is reproduced as under:-
S. No.
Complaint No.
Complainant Name
Flat & Tower
Amount Paid
1
CC/1043/2018
Brigadier Harit pant
303 3rd Floor, Tower H
₹73,28,882/-
2
CC/1044/2018
Baljor Singh Jakhar
303 3rd Floor Tower E
₹76,32,142/-
3
CC /1045/2018
Kishor Kumar Agrawal
901 9th Floor Tower E
₹63,57,563/-
4
CC/1046 /2018
Akash Chander
804 8th Floor Tower C
₹55,23,378/-
5
CC/1047/2018
Commander Madan Singh (Retd.)
404 4th Floor Tower C
₹66,76,843/-
6
CC/1048/2018
Mr. Anurag Agarwal
801 8th Floor Tower D
₹63,25,764/-
7
CC/1190/2018
Nirmala Jain
702 7th Floor Tower D
₹46,69,282/-
8
CC/1191/2018
Bhavesh Bhatia
702 7th Floor Tower E
₹51,63,167/-
9
CC/2590/ 2018
Amit Kumar
304 3rd Floor Tower B
₹85,55,219/-
All the contentions raised by the Opposite Party Developer in respect of the Project 'The ESFERA' have been dealt with in detail by this Commission in "CC No. 1605 of 2017 titled as Pinki Saini vs Imperia Structure Ltd. and connected matters" decided on 09.08.2018 and in "CC No. 3011 of 2017 titled as "Anil Patni & Anr. Vs. M/s. Imperia Structures Ltd." and other connected matters, vide Order dated 12.09.2018, this Commission partly allowed the Consumer Complaints by observing as under:-
"9. The Developer in their Affidavit of Evidence submitted that the Complainant is not a 'Consumer' as the subject flat was purchased for commercial purpose. This Commission in FA No. 530 of 2015, Sai Everest Developers & Anr. Vs. Harbans Singh, has laid down the principle of law that when the plea that the said flat has been purchased for commercial purpose is raised by the Developer, the onus of proof shifts to the Developer to establish whether the Complainant has purchased the subject flat for trading/dealing in real estate. In the instant case there is no documentary evidence to establish that the Developer has discharged this onus. In the absence of any evidence to substantiate this contention, we are of the considered view that the Complainant is a 'consumer' as defined u/s 2(1)(d) of the Consumer Protection Act, 1986. We are also of the view that this Commission has the Territorial Jurisdiction to entertain these Complaints and the plea raised by the Developer regarding Arbitration has already been settled by the decision of a Larger Bench of this Commission in Consumer Complaint No. 701 of 2015, Aftab Singh Vs. EMAR MGF Land Limited & Anr., which has also been recently affirmed by the Hon'ble Apex Court. The contention of the Developer that the Complainants have not paid the demands made on casting of 17th floor, 20th floor and for outside painting is untenable as the construction itself is still not complete and there is no pleading in the Written Version giving any specific date of offer of possession.
10. It is pertinent to note that the Developer has not filed any evidence to support his contention that the delay occurred due to force majeure events. In fact demonetization, non-availability of contractual labour, delay in notifying approvals cannot be construed to be force majeure events from any angle.
11. Learned Counsel for the Developer vehemently argued that the Complainants were offered alternative accommodation vide letter dated 03.04.2017 which was not accepted by them. The said letter is reproduced as hereunder:-
"Be that as it may, in view of your allegations of delay which we deny, we hereby offer that till we complete construction of your subject matter flat we shall arrange alternative accommodation/flat for you in Group Housing Colony named "Takshila Heights" situated at Sector-37C, Gurgaon on lease/rent with immediate effect. We will bear the rent of alternative accommodation/flat at "Takshila Heights". However, you shall have to pay the common area maintenance charges and other user based charges like electricity, etc., which you would have borne for your flat in "Esfera" as well." (Emphasis supplied).
12. It is significant to mention that in the afore-noted letter there is an admission by the Developer that the construction is still not completed. Additionally, even the specific date of delivery of possession has not been mentioned anywhere either in the Written Version or in the Affidavit or even in the letter dated 03.04.2017 which the Counsel is relying upon.
13. This Commission in Emmar MGF Land Ltd. & Ors. Vs. Amit Puri [II (2015) CPJ 568 NC] has laid down the ratio that if the construction is incomplete and the money deposited by the Complainants is lying with the Developer it is the discretion of the Complainants whether to await for the project to be completed or seek refund. In the instant case the facts and circumstances and the material on record evidence that the promised date of delivery of possession is 42 months from the date of the Builder Buyer Agreement and till date the construction is not complete. Hence we are of the considered view that there is deficiency in service on the part of the Developer and we direct refund of the amount deposited by each of the Complainants with reasonable interest. Ld. Counsel on instructions from the Complainants, who are also present in person, submitted that to put a quietus to this matter and not to be engaged in any further litigation, interest @ 9% p.a. is acceptable to each of the Complainants as the same was promised by the Developer in Clause 11.4 of the Builder Buyer Agreement. The relevant portion of the Clause 11.4, reproduced in paragraph 7, clearly stipulates that the Developer's liability, in the event of becoming unable to offer possession within 3 years from the date of the execution of the agreement, shall be limited to refund of the amounts paid by the intending allottees with simple interest @ 9% p.a. for the period such amounts were lying with the Developer.
14. Keeping in view the admitted incomplete construction, the fact that some of the Complainants have also taken bank loans and are paying EMIs and considering the stipulation provided in Clause 11.4, this Complaint is partly allowed directing the Developer to refund the amounts deposited with simple interest @ 9% p.a. from the respective dates of deposits till the date of realization together with costs of ₹50,000/- to be paid to each of the Complainants. The directions are to be complied within four weeks from the date of receipt of a copy of the order, failing which, the amount shall attract interest @ 12% p.a. for the said period."
The Opposite Party Developer challenged the Order dated 12.09.2018 passed by this Commission in "CC No. 3011 of 2017 titled as "Anil Patni & Anr. Vs. M/s. Imperia Structures Ltd." and other connected matters" by way of filing Civil Appeals before the Hon'ble Supreme Court. The Hon'ble Supreme Court dealt with all the contentions raised by the Opposite Party Developer and dismissed these Civil Appeals vide their Judgment dated 02.11.2020 in the case "M/s. Imperia Structures Ltd. vs. Anil Patni & Anr." [Civil Appeal Nos. 3581 - 3590 of 2020 with Civil Appeal No. 3591 of 2020] by observing as under:-
"18. At the outset, we must deal with two factual issues. It was concluded by the Commission that; (i) all the Complainants were 'Consumers' within the meaning of the Act and that; (ii) there was delay on part of the Appellant in completing the construction within time. The stand taken by the Appellant at various stages, itself acknowledged that there was delay but the Appellant tried to rely on certain events as mentioned in ground (c) quoted hereinabove. In our view, the conclusions drawn by the National Commission in relation to these issues are absolutely correct and do not call for any interference.
.............................
33. We may now consider the effect of the registration of the Project under the RERA Act. In the present case the apartments were booked by the Complainants in 2011-2012 and the Builder Buyer Agreements were entered into in November, 2013. As promised, the construction should have been completed in 42 months. The period had expired well before the Project was registered under the provisions of the RERA Act. Merely because the registration under the RERA Act is valid till 31.12.2020 does not mean that the entitlement of the concerned allottees to maintain an action stands deferred. It is relevant to note that even for the purposes of Section 18, the period has to be reckoned in terms of the agreement and not the registration. Condition no. (x) of the letter dated 17.11.2017 also entitles an allottee in same fashion. Therefore, the entitlement of the Complainants must be considered in the light of the terms of the Builder Buyer Agreements and was rightly dealt with by the Commission.
34. Lastly, it may be noted that the Consumer Protection Act, 2019 (hereinafter referred as, "2019 Act") was enacted by the Parliament "to provide for protection of the interests of consumers and for the said purpose, to establish authorities for timely and effectively administration and settlement of the consumers' dispute and for matters connected therewith or incidental thereto". Sections 2(7), 2(33), 2(37), and 2(42) define expressions "Consumer", "Product", "Product Seller" and "Service" respectively. Sections 85 and 86 deal with liability of "Product Service Provider" and "Product Seller". Sections 100 and 107 of 2019 Act are to the following effect:-
"100. The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.
107. (1) The Consumer Protection Act, 1986 is hereby repealed.
(2) Notwithstanding such repeal, anything done or any action taken or purported to have been done or taken under the Act hereby repealed shall, in so far as it Is not inconsistent with the provisions of this Act, be deemed to have been done or taken under the corresponding provisions of this Act.
(3) The mention of particular matters in sub-section (2) shall not be held to prejudice or affect the general application of section 6 of the General Clauses Act, 1897 with regard to the effect of repeal."
Section 100 of 2019 Act is akin to Section 3 of the CP Act and Section 107 saves all actions taken or purported to have been taken under the CP Act. It is significant that Section 100 is enacted with an intent to secure the remedies under 2019 Act dealing with protection of the interests of Consumers, even after the RERA Act was brought into force.
Thus, the proceedings initiated by the complainants in the present cases and the resultant actions including the orders passed by the Commission are fully saved.
35. Resultantly, we reject all the submissions advanced by the Appellant. These appeals are accordingly dismissed affirming the view taken by the Commission. We quantify the costs at Rs.50,000/- (Rupees Fifty Thousand only) to be paid by the Appellant in respect of each of the Consumer Cases, over and above the amounts directed to be made over to the Complainants and shall form part of the amount payable by the Appellant to the Complainants.
36. All the Complainants are entitled to execute the orders passed by the Commission in their favour, in accordance with law."
Respectfully following the ratio of the Judgment passed by the Hon'ble Supreme Court in the case of M/s. Imperia Structures Ltd. (supra), the Opposite Party Developer is directed to refund the entire amounts deposited by the Complainants alongwith simple interest @9% p.a. from the respective dates of deposits till the date of actual payment together with costs of ₹50,000/- to be paid to each of the Complainants. Consequently, all the Consumer Complaints are partly allowed in following terms:-
Consumer Complaint No. 1043 / 2018 The Opposite Party Developer is directed to refund ₹73,28,882/- to the Complainant alongwith interest @ 9% p.a. from the respective dates of deposit till the date of actual payment together with costs of ₹50,000/-.
Consumer Complaint No. 1044 / 2018 The Opposite Party Developer is directed to refund ₹76,32,142/- to the Complainant alongwith interest @ 9% p.a. from the respective dates of deposit till the date of actual payment together with costs of ₹50,000/-.
Consumer Complaint No. 1045 / 2018 The Opposite Party Developer is directed to refund ₹63,57,563/- to the Complainant alongwith interest @ 9% p.a. from the respective dates of deposit till the date of actual payment together with costs of ₹50,000/-.
Consumer Complaint No. 1046 / 2018 The Opposite Party Developer is directed to refund ₹55,23,378/- to the Complainant alongwith interest @ 9% p.a. from the respective dates of deposit till the date of actual payment together with costs of ₹50,000/-.
Consumer Complaint No. 1047 / 2018 The Opposite Party Developer is directed to refund ₹66,76,843/- to the Complainant alongwith interest @ 9% p.a. from the respective dates of deposit till the date of actual payment together with costs of ₹50,000/-.
Consumer Complaint No. 1048 / 2018 The Opposite Party Developer is directed to refund ₹63,25,764/- to the Complainant alongwith interest @ 9% p.a. from the respective dates of deposit till the date of actual payment together with costs of ₹50,000/-.
Consumer Complaint No. 1190 / 2018 The Opposite Party Developer is directed to refund ₹46,69,282/- to the Complainant alongwith interest @ 9% p.a. from the respective dates of deposit till the date of actual payment together with costs of ₹50,000/-.
Consumer Complaint No. 1191 / 2018 The Opposite Party Developer is directed to refund ₹51,63,167/- to the Complainant alongwith interest @ 9% p.a. from the respective dates of deposit till the date of actual payment together with costs of ₹50,000/-.
Consumer Complaint No. 2590 / 2018 The Opposite Party Developer is directed to refund ₹85,55,219/- to the Complainant alongwith interest @ 9% p.a. from the respective dates of deposit till the date of actual payment together with costs of ₹50,000/-.
The Opposite Party Developer shall pay the aforesaid awarded amount to the respective Complainants within 4 weeks from the date of receipt of a copy of this Order failing which the rate of interest will increase from 9% to 12% p.a. ......................J R.K. AGRAWAL PRESIDENT