National Consumer Disputes Redressal
Sunita Sehgal & Anr. vs Ireo Grace Realtech Pvt. Ltd. on 8 October, 2018
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 1488 OF 2017 1. SUNITA SEHGAL & ANR. C/O. G P BHATIA, I-1201, AMBIENCE ISLAND NH-8, GURGAON-122002 HARYANA 2. MR. VARUN SEHGAL C/O. G P BHATIA, I-1201, AMBIENCE ISLAND NH-8, GURGAON-122002 HARYANA ...........Complainant(s) Versus 1. IREO GRACE REALTECH PVT. LTD. THROUGH ITS DIRECTOR JAI BHARAT AGGARWAL, REGISTERED OFFICE AT 304, KANCHAN HOUSE, KARAMPURA COMMERCIAL COMPLEX, NEW DELHI-110015 2. SUJEET KUMAR DIRECTOR IREO GRACE REALTECH PVT. LTD., IREO CAMPUS SECTOR 59, NEAR BEHRAMPUR, GURGAON-122101 HARYANA ...........Opp.Party(s) BEFORE: HON'BLE MR. JUSTICE V.K. JAIN,PRESIDING MEMBER
For the Complainant : Mr. Ayush Sharma, Advocate For the Opp.Party : Mr. P. Vinay Kumar, Advocate Ms. Manmilan Sidhu, Advocate Dated : 08 Oct 2018 ORDER JUSTICE V.K.JAIN, PRESIDING MEMBER (ORAL) The complainants booked a residential flat with the OP in a group housing project namely 'The Corridors' which the OP was to develop in Sector-67A of Gurgaon. Pursuant to the application submitted by them on 22.03.2013, residential apartment no. CD-A1-07-704 in the above referred project was allotted to them vide allotment letter dated 07.08.2013, for a consideration of Rs.1,86,92,156.74/-. As per the payment plan opted by the complainants, the payment was to be made in the following stages:
INSTALLMENT PAYMENT PLAN S.NO.
LINKED STAGES % TOTAL 1 At the time of booking 10% of Basic 175989.00 2 Within 45 of Booking 10% of Basic 175989.00 3 Commencement of excavation 10% of Basic + 50% of development charges 2061095.00 4 Casting of lower basement roof slab 10% of Basic + 50% of development charges 2061095.00 5 Casting of 2nd Floor roof slab 10% of Basic 175989.00 6 Casting of 5th Floor roof slab 10% of Basic 175989.00 7 Casting of 8th Floor roof slab 10% of Basic + 50% of club membership 1879989.00 8 Casting of 11th Floor roof slab 10% of Basic 175989.00 9 Casting of top floor roof slab 10% of Basic 175989.00 10 On completion of stone/tile flooring in apartment 5% of Basic and 50% of club membership 1002949.70 11 On offer of possession 5% of Basic + 100% of IFMS + 100% of IBRF 1157540.20 TOTAL 18692156.74 Service tax is applicable, subject to periodic revisions by subsequent Government notifications.
Stamp duty and registration charges shall be payable along with the last installment.
2. Clauses 43, 44 & 49 of the terms and conditions of the agreement as contained in the applications, read as under:
43. Subject to Force Majeure, as defined herein and further subject to the applicant having complied with all its obligations under the terms and conditions of this Agreement and the applicant not having defaulted under any provision(s) of this Agreement including but not limited to the timely payment of the total Sale Consideration, stamp duty and other charges prescribed by the Company, the Company proposes to offer the possession of the said Apartment to the applicant within a period of 42 months from the date of approval of the building plans and/or fulfillment of the pre-conditions imposed thereunder ("Commitment Period"). The applicant further agrees and understands that the Company shall additionally be entitled to a period of 180 (6 months) days ("Grace Period"), after the expiry of the said commitment period to allow for unforeseen delays beyond the reasonable control of the Company. Subject to the condition contained herein, if the Company fails to offer possession of the said apartment to the applicant by the end of the Grace Period, it shall be liable to pay to the applicant compensation calculated at the rate of Rs. 7.5/- (Rupees Seven and Fifty Paisa only) per sq. ft. of Super Area ("Delay Compensation") for every month of delay thereafter until the actual date fixed by the Company for offering the possession of the said such 'Delay Compensation' only at the time of 'Notice of Possession' or at the time of payment of the final installment, whichever is earlier.
44. Subject to the above, in the event of delay by the Company in offering the possession of the said Apartment beyond a period of 12 months from the end of the Grace Period (such month period hereinafter referred to as the 'Extended Delay Period' then the applicant shall become entitled to opt for termination of the Agreement and refund of the actual paid up installment paid by it against the said Apartment. It is clarified that the delay compensation calculated for the fixed period of 12 months only shall be paid by the Company alongwith the installments refundable under this Clause without any interest. This option may be exercised by the applicant only up till dispatch of the Notice of Possession by the Company to the Applicant. No other claim, whatsoever, monetary or otherwise shall lie against the Company nor be raised otherwise or in any other manner by the Applicant.
49. Notwithstanding anything contained in this Agreement, timely performance by the applicant of all its obligations under this Agreement, including without limitation, its obligations to make timely payment of the Sale Consideration, maintenance charges and other deposits and amounts, including any interest, in accordance with this agreement shall be of essence under this Agreement. If the applicant neglects, omits, ignores, or fails in the timely performance of its obligations agreed or stipulated herein for any reason whatsoever or to pay in time to the Company any of the installments or other amounts and charges due and payable by the Applicant by respective due dates, the Company shall be entitled to cancel the allotment and terminate this Agreement in the manner described hereunder.
3. It would thus be seen that the possession of the apartments ought to have been delivered to the aforesaid complainants within 42 months from the date of approval of the building plans and/or fulfillment of the pre-conditions if any, imposed under the approval of the building plans. The OP was entitled to a grace period of 180 days but only for the unforeseen reasons beyond its control. The grievance of the complainants is that not only the possession of the apartments was not offered to them, even the construction is not complete despite they having made substantial payment to the OP. The complainants are therefore, before this Commission seeking refund of the amount paid by them to the OP alongwith compensation in the form of interest etc.
4. The plans having been approved on 23.07.2013, the possession ought to have been delivered latest by 23.07.2017 even if the grace period of six months is given to the OP.
5. The complaint has been resisted by the OP primarily on the grounds which this Commission has already rejected in CC No. 1998 of 2016 Subodh Pawar Vs. Ireo Grace Realtech Pvt. Ltd. & Ors. decided on 24.09.2018. The decision of this Commission in Subodh Pawar (supra) to the extent it is relevant, reads as under:
6. The complaints have been resisted by the OPs which have admitted the allotment made to the complainants as well as the payment received from them. The OPs have contested the complaints inter-alia on the ground that since the fire safety approval came to be accorded on 27.11.2014, the complaints were pre-mature, the proposed date of delivery being 27.05.2018. Thus, according to the OPs, they proposed to deliver possession by 27.05.2018 as against the case of the complainants that since the building plans for this project were approved on 23.07.2013, the possession ought to have been delivered latest by 23.07.2017 even if the grace period of six months is given to the OPs. This is also the case of the OPs that the parties are bound by the terms of the agreement executed between them, extracts from which have already been reproduced hereinabove.
7. It is an admitted position that the building plans for this project were approved by Directorate of Town and Country Planning, Haryana vide its memo dated 23.07.2013. Therefore, in my opinion, the possession of the apartments, complete in all respects, ought to have been offered to the complainants by 23.01.2017. As noted earlier, the benefit of grace period was available to the OPs only in the event of the delay happening on account of the reasons which the parties could not have foreseen at the time the allotments were made. No such unforeseen circumstance however, has been established by the OPs.
8. The learned counsel for the OPs has drawn my attention to condition no. 3 of the memo dated 23.07.2013 related to fire safety which reads as under:
On receipt of the above request the Commissioner, Municipal Corporation, Gurgaon after satisfying himself that the entire fire protection measures proposed for the above buildings are as per NBC and other Fire Safety Bye Laws, and would issue a NOC from the Fire Safety and means of escape/access point of view. This clearance/NOC from the File Authority shall be submitted in this office alongwith a set of plans duly signed by the Commissioner, Municipal Corporation, Gurgaon within a period of 90 days from the date of issuance of sanction of building plans. Further, it is also made clear that no permission for occupancy of the building shall be issued by Commissioner, Municipal Corporation, Gurgaon unless he is satisfied that adequate fire-fighting measures have been installed by you and suitable external fire-fighting infrastructure has been created at Gurgaon, by Municipal Corporation, Gurgaon before grant of occupation certificate by the Director General.
The contention of the learned counsel is that the period stipulated for offering possession should start from the date on which the clearance from fire authority was issued. She also submits that the said clearance came to be issued only on 27.11.2014 though according to the learned counsel, the same was applied on 24.10.2013. It would be seen from the condition relating to fire safety condition in the approval dated 23.07.2013 that an NOC from the Fire Safety Department was to be obtained by the OPs and submitted to the Directorate of Town and Country Planning, Haryana within a period of 90 days from the issuance of the said approval. The aforesaid period of 90 days expired on 21.10.2013. The OPs thus, did not even apply for the requisite NOC from fire authority within the period stipulated for obtaining and submitting the said approval. More importantly, there was no such stipulation in the approval dated 23.07.2013 that the builder could not commence construction without obtaining the said fire safety NOC. Only the Occupancy Certificate could not have been issued without the Municipal Corporation, Gurgaon satisfying itself that adequate fire safety measures had been installed and suitable external fire-fighting infrastructure had been created at Gurgaon by the said Corporation. The OPs therefore, could have started the construction immediately after the aforesaid approval dated 23.07.2013 was obtained. The possession therefore, ought to have been offered by 23.01.2017 since in the absence of unforeseen circumstances, the benefit of the grace period was not available to the OPs.
11. As far as clause 44 of the indicators from the terms and conditions of the Apartment Buyers Agreement is concerned, this Commission has vide its order dated 18.09.2018 passed in CC No.190/2017 and connected matters, has already held that the said clause is wholly unfair besides being one sided and therefore, refund of the principal amount with appropriate compensation can be directed by this Commission despite the said clause The decision of this Commission in CC No.190/2017, to the extent it is relevant, reads as under:
7. The learned senior counsel for the OP has drawn my attention to clause 44 of the terms and conditions, extracted hereinabove and he submits that the aforesaid clause gives only a limited right to the complainants to terminate the agreement and seek refund of the amount paid by them. He also submits that in terms of the aforesaid clause, the contract could be terminated after a delay of at least 12 months, and only the delay compensation in terms of the agreement, for twelve months, is payable alongwith installments refundable to the allottee without any interest. However, in my view, since the OP failed to deliver possession of the allotted flats to the aforesaid complainants, it amounted to a deficiency in rendering service to them and therefore, this Commission is entitled to direct refund of the amount paid by them to the OP alongwith appropriate compensation. In my view, clause 44 which postpones the right of the flat buyer to terminate the agreement and seek compensation even after the grace period has expired, is wholly unfair besides being one sided and therefore, refund of the principal amount with appropriate compensation can be directed by this Commission despite clause 44 extracted hereinabove.
16. During the course of hearing, the learned counsel for the OPs submitted that since the amount of refund being sought is less than Rs.1 Crore, this Commission lacks the pecuniary jurisdiction to entertain these complaints. The aforesaid contention was examined and rejected by this Commission vide order dated 27.08.2018 in Pradeep Kumar Verma & Anr. Vs. M/s Supertech Limited, CC/508/2017, which to the extent, it is relevant, reads as under:
4. The first plea advanced by the learned counsel for the opposite party is that this Commission lacks pecuniary jurisdiction to entertain this complaint. In support of her contention she relies upon the decision of a Coordinate Bench of this Commission in CC/1195/2017 Narendra Shah & Anr. Vs. Supertech Ltd. decided on 24.5.2017. The aforesaid decision, in my view, is contrary to the decision of a Three-Members Bench of this Commission in Ambrish Kumar Shukla Vs. Ferrous Infrastructure Pvt. Ltd. CC No. 97 of 2016, decided on 07.10.2016 and therefore, does not constitute a binding legal precedent. In terms of Section 21 of the Consumer Protection Act, this Commission possesses the requisite pecuniary jurisdiction to entertain a consumer complaint where the value of the goods or services, as the case may be, and the compensation, if any, claimed, in the consumer complaint exceeds Rupees one crore. It was held by the Three-Members Bench of this Commission in Ambrish Kumar Shukla (supra) that the value of the service in such cases would mean the sale consideration agreed to be paid by the flat buyer to the builder. The amount actually paid by the flat buyer to the builder would have absolutely no relevance in such a case, the only relevant factors being the value of the service i.e. the sale price agreed to be paid by the flat buyer to the builder and the compensation claimed in the consumer complaint. For instance, if a flat buyer agrees to purchase a residential house for a consideration of more than Rupees one crore, but pays only Rs.10.00 lacs to the builder and is aggrieved on account of the builder having failed to honour his contractual commitment, the appropriate Forum, if he wants to file a consumer complaint, would be this Commission, since the value of the service i.e. the price which he had agreed to pay to the builder for the flat was more than Rupees one crore. In the present case, admittedly, the sale price of the flat was agreed at more than Rs.1,38,00,000/-. Therefore, it is only and only this Commission which would have pecuniary jurisdiction to entertain a consumer complaint.
17. It would thus be seen that in these cases, the last date for offering possession of the flats expired on 23.01.2017, the construction is not complete even today, and even today, there is no certainty as to when the OPs will be able to apply for and obtain the requisite Occupancy Certificate. The complainants therefore, cannot be compelled to keep on waiting for the apartments, and are entitled to seek refund of their money with suitable compensation.
6. The learned counsel for the complainants states on instructions from the complainants that they are restricting their claim to the refund of the principal amount paid by them alongwith compensation in the form of simple interest @ 10% per annum from the date of each payment till the date of refund and the cost of litigation.
7. The complaint is therefore, disposed of with the following directions:
(i) The OP shall refund the entire principal amount received from the complainants alongwith compensation in the form of simple interest @ 10% per annum from the date of each payment till the date of refund.
(ii) The OP shall also pay a sum of Rs.25,000/- as the cost of litigation in each complaint.
(iii) The aforesaid payment shall be made within three months from today.
(iv) If an appeal is preferred by the OP against the decision of this Commission dated 24.09.2018 in Subodh Pawar (supra), the final order which may be passed by the Hon'ble Supreme Court in the said appeal, shall also apply to this case, in supersession of the order passed hereinabove.
......................J V.K. JAIN PRESIDING MEMBER