State Consumer Disputes Redressal Commission
Akhil Jindal vs Chintels India Pvt. Ltd. on 31 October, 2023
C.NO.-43/2022 DOD: 31.10.2023
MR. AKHIL JINDAL & ANR. VS CHINTELS INDIA PVT. LTD.
IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL
COMMISSION
Date of Institution: 08.03.2022
Date of hearing: 12.04.2023
Date of Decision: 31.10.2023
COMPLAINT CASE NO. 43/2022
IN THE MATTER OF
1. MR. AKHIL JINDAL
S/O MR. PAWAN JINDAL
COMPLAINANT NO. 1
2. MR. PAWAN JINDAL
COMPLAINANT NO. 2
BOTH RESIDENTS OF
R/O C-356, FIRST FLOOR,
SARASWATI VIHAR,
DELHI-110034
(Through: Ms. Mithu Jain & Mr. Apoorve Karol, Advocates)
VERSUS
CHINTELS INDIA PVT. LTD.,
THROUGH DIRECTOR,
REGISTERED OFFICE AT:
A-11, KAILASH COLONY,
NEW DELHI-110048.
.... OPPOSITE PARTY
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CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL, PRESIDENT
HON'BLE MS. PINKI, MEMBER (JUDICIAL)
HON'BLE MR. J.P. AGRAWAL, MEMBER (GENERAL)
Present: Mr. Mithu Jain, Mr. Apoorve Karol, Mr. Lakshay Sharma, Counsel
for the Complainants.
None for the OP.
PER: HON'BLE MR. J.P. AGRAWAL, MEMBER (GENERAL)
JUDGMENT
1. The Complainants have filed the present complaint against the Opposite Party on 08.03.2022 seeking the following reliefs:
a) Direct the Opposite Party to pay compensation for delay in handover of apartment/unit to the Complainants in the form of interest @ 18% per annum from the expected date of delivery till the date of hand over of possession;
b) Direct the Opposite Party to refund the Club Charges and Car Parking charges paid by the Complainant(s) along with interest @ 18% per annum till realization of the said amount(s);
c) Direct the Opposite Party to compensate the Complainants herein an amount of Rs.5,00,000/- (Rupees five lakhs only) along with interest @ 18% per annum till realization of the said amount(s) for mental agony, harassment suffered due to deficiencies in services by not providing amenities/facilities promised by the Opposite Party;
d) Direct the Opposite Party to provide all facilities and amenities as represented and promised at the time of booking the unit by the Complainant(s) herein;
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e) Direct the Opposite Party to pay litigation costs of Rs.50,000/- (Rupees fifty thousand only) to the Complainants herein;
f) Pass any other order(s)/ direction(s) in favour of the Complainants herein as this Hon'ble Commission deems fit and proper.
2. Brief facts necessary for the adjudication of the present complaint are that the Complainant No. 1 is the original allottee of apartment No. D-702 vide allotment letter dated 19.08.2013, which was subsequently changed to T4-702 having an approximate super area of 2375 sq. ft. in the residential complex namely "Chintels Serenity" being built and developed by the Opposite Party at Sector 109, Gurgaon, Haryana- 122006. An Apartment Buyer Agreement (ABA) dated 10.07.2014 was executed between Complainant No. 1 and the Opposite Party, showing total sale consideration of the Apartment as Rs.1,17,91,250/-. As per clause 11 of the ABA, the apartment/unit had to be delivered within 36 months with a grace period of six months from the date of actual start of the construction. The Opposite Party offered possession through its offer of possession letter dated 01.03.2019 and actual possession has only been given on 29.01.2022, resulting into delay of 1589 days.
3. It is the case of the Complainants that the Opposite Party has and again tried to force upon the Allottees of the Project, undertakings which include terms and conditions which are one sided, arbitrary and unilateral. As per Clause 16 of the ABA, the allottee after taking possession of the said apartment shall have no claim against the Opposite party in ALLOWED Page 3 OF 12 C.NO.-43/2022 DOD: 31.10.2023 MR. AKHIL JINDAL & ANR. VS CHINTELS INDIA PVT. LTD.
respect of any delay or of any item of work, quality of work, materials, installations etc. Further, as per Clause 4(iii) of the ABA, in case of any delay of payments by the allottees the Opposite Party would charge interest @18% p.a. on due amount for the delayed period. Whereas, according to Clause 12 of the ABA, if the Opposite Party is not able to deliver possession of the said apartment to the allottee within the given period of time, the Opposite Party shall be liable to pay compensation @Rs.5/- per sq. ft. of the Super Area per month to the original allottee. The Complainants have stated that the oppressive and wholly one sided terms in the ABA amounts to unfair trade practice under the Consumer Protection Act.
4. It is the case of the Complainants that the Opposite Party failed to provide the basic amenities as promised by them. When the Complainants visited the apartment/unit on 23.03.2019 to take possession of the same, they were shocked to see the condition of the apartment/unit and various deficiencies with photographs were informed through various emails to the Opposite Party. The unit was again visited on 13.08.2021 by the Complainants and met Mr. Sandeep, an authorized agent of Opposite Party. A lot of additional defects were noticed at that time of visit and thus, the said unit was inhabitable and not ready to move even as on 13.08.2021. The apartment/unit was transferred to the Complainant No. 2 on 06.01.2022 by the Opposite Party vide Endorsement of transfer document. Thereafter, the Complainant(s) were constrained to take over the final possession of the unit from the Opposite Party on 29.01.2022 as they had invested their hard earned money/savings and were left with no choice.
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Thus, there has been a huge delay in delivering the apartment/unit by the Opposite Party and some defects still remain in the said apartment/unit. It has been further submitted that the Complainants reside in Delhi, the Opposite Party has its jurisdiction office in Delhi, they have paid an amount of Rs.97,90,232/- to the Opposite Party and therefore, this Commission has the pecuniary as well as territorial jurisdiction to entertain the complaint. Further, the cause of action arose on 29.01.2022 when the Complainant(s) were handed over the apartment/unit by the Opposite Party and the cause of action is continuing & subsisting as on date, as deficiencies in services and in construction have not been rectified.
5. During the course of proceedings, Dasti notice of the Complaint along with a copy of the entire complaint has been served by hand to the Opposite Party at their registered office situated at A-11, Kailash Colony, New Delhi-110048 on 15.06.2022 at 11:00 am, as per an affidavit of service dated 20.06.2022 (duly supported by documentary evidence) filed by Mr. Lakshay Sharma, an advocate in the office of the Counsel for the Complainants. Further, copy of the complaint along with the order dated 14.03.2022 was also sent to the officials of the Opposite Party on the following emails [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]. However, despite service of the dasti notice and emails, none appeared nor any written statement has been filed on behalf of the Opposite Party.
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Therefore, vide order dated 22.08.2022, the Opposite Party has been proceeded ex-parte. Further also, none appeared on 12.04.2023 and no written submissions have been filed on behalf of the Opposite Party.
6. The Complainants have filed the Evidence by way of Affidavit in order to prove their averments on record and also filed the written arguments.
7. We have perused the material available on record and heard the counsel for the Complainants.
8. It is the case of the Complainants that they had booked the apartment bearing no. D-702, which was subsequently changed to T4-702 measuring about 2375 sq. ft. with the Opposite Party. Apartment Buyer Agreement was executed on 10.07.2014. Payment to the extent of Rs. 97,90,232/- has been made by the Complainants to the Opposite Party for the said apartment. The Opposite Party issued final offer of possession vide letter dated 01.03.2019. However, due to various deficiencies/defects noticed by the Complainants in the apartment, the actual possession was not taken by the Complainants in terms of offer letter dated 01.03.2019 of the Opposite Party. The final possession of the apartment was taken over by the Complainants on 29.01.2022, as they were left with no choice despite the fact that some defects still remained in the said apartment/unit.
9. The first question for consideration is whether the Opposite party is deficient in providing its services to the Complainants?
10. The expression Deficiency of Service has been dealt with by the Hon'ble Apex Court in Arifur Rahman Khan and Ors. vs. DLF ALLOWED Page 6 OF 12 C.NO.-43/2022 DOD: 31.10.2023 MR. AKHIL JINDAL & ANR. VS CHINTELS INDIA PVT. LTD.
Southern Homes Pvt. Ltd. and Ors. reported at 2020 (3) RCR (Civil) 544, wherein it has been discussed as follows:
"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."
11. At this stage, we deem it appropriate to refer to clause 11 of the apartment buyer agreement 10.07.2014 entered into by both the contesting parties. It reflects that the Opposite Party was bound to ALLOWED Page 7 OF 12 C.NO.-43/2022 DOD: 31.10.2023 MR. AKHIL JINDAL & ANR. VS CHINTELS INDIA PVT. LTD.
hand over the possession of the said apartment within 36 months plus 6 months of grace period from the date of commencement of construction. In the present matter, the Opposite Party has failed to appear despite service of the notice along with the complaint and has been proceeded ex-parte vide order dated 22.08.2022. As per evidence by way of affidavit of the Complainants, the Opposite Party was paid a sum of Rs. 6,00,000/- towards basic sale price of the apartment vide cheque no. 278505 dated 20.03.2014 drawn on SBI, New Delhi under the Event name of 'Within 15 days of booking' and 'On commencement of construction'. Since the said payment was acknowledged by the Opposite Party vide receipt dated 25.03.2014 issued to the Complainants, it can been construed that the date of commencement of construction was 25.03.2014.
12. The date of start of construction being 25.03.2014 of the project, the possession should have been offered to the Complainants by 25.09.2017 (after 36 plus 6 extended months). However, the date of offer of possession was 01.03.2019 and despite repeated requests of the Complainants through various emails dated 23.03.2019, 01.04.2021, 10.07.2021 16.08.2021, 18.08.2021, 24.08.2021 etc. pointing out poor condition/various defects of the flat after personal visits, the physical possession of the apartment was finally handed over on 29.01.2022 by the Opposite Party. Thus, there is inordinate delay of four years, four months and four days in handing over possession by the Opposite Party to the Complainants.
13. Further, we deem it appropriate to refer it imperative to refer CIVIL APPEAL NO. 6044 of 2019 titled as EXPERION DEVELOPERS PVT. LTD. Vs. SUSHMA ASHOK SHIROOR, decided on 07.04.2022, where Hon'ble Apex court held that:
"..... 7. In view of the above discussion, we have no hesitation in holding that the terms of the apartment buyer's agreement dated ALLOWED Page 8 OF 12 C.NO.-43/2022 DOD: 31.10.2023 MR. AKHIL JINDAL & ANR. VS CHINTELS INDIA PVT. LTD.
8-5-2012 were wholly one-sided and unfair to the respondent flat purchaser. The appellant builder could not seek to bind the respondent with such one-sided contractual terms."
9.1 The principle laid down in Pioneer's case has been followed consistently in many cases where the terms of the Apartment Buyer's Agreement were found to be one-sided and entirely loaded in favour of the Developer, and against the allottee at every step. The following are instances where the terms of the Apartment Buyer's Agreement were found to be oppressive, constituting unfair trade practice and the Court has not given effect to such terms of the Agreement:
9.2 In Arifur Rahman Khan v DLF Southern Homes Pvt.
Ltd.7, this Court held that there is no embargo on the award of compensation beyond the rate stipulated in the Apartment Buyer's Agreement where handing over the possession of the flat has been delayed. The Court observed that the Consumer Forums must take a robust and a common-sense approach by taking judicial notice of the fact that flat purchasers obtained loans and are required to pay EMIs to financial institutions for subserving their debts. The Delay Compensation Clause provided for Rs. 5 per square foot per month. This Court found that this stipulation is clearly one-sided and does not maintain a level platform or even reflect a bargain between the parties. The Court granted additional compensation @ 6% p.a. simple interest to each buyer therein, over and above the Delay Compensation Clause.
9.3 In NBCC v Shri Ram Trivedi, the Court found that the agreement fastening liability on the purchaser to pay simple interest @ 12% p.a. if he failed to pay instalments on time and at the same time, if the seller failed to hand over the possession on time, he would have to pay compensation only @ of Rs. 2 per square feet would constitute an unfair trade practice. The Court held that a term Wing Commander Arifur Rahman Khan and Aleya Sultana & Ors. v. DLF Southern Homes Private Limited (2020) 16 SCC 512 NBCC (India) Ltd. v. Shri Ram Trivedi (2021) 5 SCC 273 of a contract would not be final and binding if it is shown that the flat purchasers have no option but to sign on the dotted line of a contract framed by the builders. The Court further held that Consumer Forums were empowered to award just and reasonable compensation as an incident of its power to direct removal of a deficiency in service; they are not ALLOWED Page 9 OF 12 C.NO.-43/2022 DOD: 31.10.2023 MR. AKHIL JINDAL & ANR. VS CHINTELS INDIA PVT. LTD.
constrained by the rate prescribed in the agreement. The Court held that the compensation could be granted even if possession had been delivered. The same principle followed in a subsequent decision in DLF Home Developers Ltd. v. Capital Greens Flat Buyers9.
9.4 A three-judge bench of this Court in IREO Grace Realtech (P) Ltd. V. Abhishek Khanna10 noticed the delay compensation clause, which is similar to the clause in the present case, which provided that the Developer would be liable to pay delay compensation @ Rs 7.5 per square foot which works out to approximately 0.9 to 1% p.a. The Court held that this Clause is one-sided and entirely loaded in favour of the Developer and against the allottee. The Court concluded that the powers of the Consumer Court were in no manner constrained to declare a contractual term as unfair and one- sided as an incident of the power to discontinue unfair or restrictive trade practices. It was held: "34. We are of the view that the incorporation of such one-sided and unreasonable clauses in the apartment buyer's Agreement constitutes an unfair trade practice under Section 2(1)(r) of the Consumer Protection Act. Even under the1986 Act, the powers of the consumer fora DLF Home Developers Ltd. v. Capital Greens Flat Buyers Association & Ors. (2021) 5 SCC 537 IREO Grace Realtech (P) Ltd. v. Abhishek Khanna & Ors. (2021) 3 SCC 241 were in no manner constrained to declare a contractual term as unfair or one-sided as an incident of the power to discontinue unfair or restrictive trade practices. An "unfair contract" has been defined under the 2019 Act, and powers have been conferred on the State Consumer Fora and the National Commission to declare contractual terms which are unfair, as null and void. This is a statutory recognition of a power which was implicit under the 1986 Act. 35. In view of the above, we hold that the Developer cannot compel the apartment buyers to be bound by the one-sided contractual terms contained in the apartment buyer's Agreement." 10. Having examined various decisions of this Court which considered similar clauses in Apartment Buyer's Agreement and following the ratio laid down in Pioneer case, the submission made on behalf of the Developer has to be rejected. We hold that the Commission is correct in its approach in holding that the clauses of the agreement are one-sided and ALLOWED Page 10 OF 12 C.NO.-43/2022 DOD: 31.10.2023 MR. AKHIL JINDAL & ANR. VS CHINTELS INDIA PVT. LTD.
that the Consumer is not bound to accept the possession of the apartment and can seek refund of the amount deposited by her with interest...."
14. From the aforesaid dicta of the Hon'ble Apex Court, it is clear that the practice of imposing an 18% per annum interest rate for a one-month delay in instalment payment by the Complainant, while the Opposite Party is only liable to pay Rs. 5/- per square foot per month in case of delayed possession of the flat constitutes an unfair and one-sided agreement. Similarly, clause 16 of the Apartment Buyer's Agreement regarding no claim on defect of construction from apartment after handing over possession including in respect of any delay or of any item of work, quality of work, materials, installations etc. is also unfair and one sided.
15. Relying on the above settled law, we hold that the Opposite Party is deficient in providing its services to the Complainants as the Opposite Party had given false assurance to the Complainants with respect to the time for completing the construction of the said apartment.
16. Now the only question remains that how much Opposite Party is liable to pay compensation for delay in handing over the possession of the said apartment. To deal this issue, we deem it appropriate to refer Arifur Rahman and Aleya Sultana and Ors. V. DLF Southern Homes Pvt. Ltd. where apex court modified NCDRC:
11 Accordingly, we allow the appeals in part to the following extent:
(i) The compensation on account of delay in handing over possession of the flats to the flat buyers is reduced from 7% to 6% .
17. Keeping in view the facts of the present case and the extensive law as discussed above, the Opposite Party is directed to-
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A. To pay compensation for delay in offering possession to the Complainants @ 6 % simple interest per annum calculated from the date on which each installment/payment was received by the Opposite Party or from 26.09.2017 (i.e. next day from the date on which possession of the said flat was to be given as per ABA i.e. 25.09.2017), whichever is later, till the actual date on which possession of the said flat was offered to the Complainants i.e. 29.01.2022.
B. The Opposite Party is directed to comply with the directions as in Para 17 (A) of the Judgment within 60 days from the date of this Judgment, failing which, the Opposite Party shall be liable to pay interest @9% per annum.
C. Rs. 4,00,000/- is awarded as cost for mental agony and harassment to the Complainants; and D. The litigation cost to the extent of Rs. 50,000/-.
18. Application(s) pending, if any, stand disposed of in terms of the aforesaid judgment.
19. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
20. File be consigned to record room along with a copy of this Judgment.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (PINKI) MEMBER (JUDICIAL) (J.P. AGRAWAL) MEMBER (GENERAL) Pronounced On:
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