National Consumer Disputes Redressal
Sriharsh Singh vs Ireo Grace Realtech Private Limited & 4 ... on 14 June, 2022
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 2500 OF 2018 1. SRIHARSH SINGH ...........Complainant(s) Versus 1. IREO GRACE REALTECH PRIVATE LIMITED & 4 ORS. 2. IRE CAMPUS SECTOR-59,ARCHVIEW DRIVE,IREO CITY,GOLF COURSE EXTN., ROAD NEAR BEHRAMPUR, Gurugarm-122001 HARYANA 3. M/s Precision Realtors Pvt.Ltd. R/O:305,KANCHAN HOUSE,KARAMPURA COMMERCAIL COMPLEX NEW DELHI-110015 4. M/s Blue Planet Infra Developers Pvt.Ltd. R/O:40/16,EAST PATEL NAGAR NEW DELHI-110008 5. M/s Maderia Conbuild Pvt.Ltd. R/O:304,KANCHAN HOME,(3RD FLOOR) KARAMPURA COMMERCIAL COMPLEX NEW DELHI-110015 6. M/s Global Estate R/O:G-23,ASHOK VIHAR,PHASE-I NEW DELHI-110052 ...........Opp.Party(s)
BEFORE: HON'BLE MRS. JUSTICE DEEPA SHARMA,PRESIDING MEMBER HON'BLE MR. SUBHASH CHANDRA,MEMBER
For the Complainant : MR. DEEPAK KR. KHUSHALANI For the Opp.Party : Mr Sameer Chaudhary, Mr Rahul Ahuja,
Mr Gaurav Sharma, Mr Akarsh Sharma,
Advocates with Ms Ruchi Kumar, Sr Manager
Dated : 14 Jun 2022 ORDER
PER MR SUBHASH CHANDRA, MEMBER
1.This is a complaint u/s 21 (a) (i) of the Consumer Protection Act, 1986 filed by the complainants seeking refund of the amount deposited in respect of the flat booked by them with the opposite parties in a project promoted and developed by the opposite parties along with penal interest and other compensation, alleging deficiency in service and unfair trade practice on account of the delay in handing over possession of the flat.
2. In brief, the facts of the case are that the complainants had booked a flat in the project "The Corridors" promoted and developed by the Opposite parties viz. located at Golf Course Extension Road, Sector 67 A, Gurgaon, Haryana on 18.03.2013 for their residential purpose. An allotment letter was issued by the OP to the Complainants on 07.08.2013 allotting flat no. CD B8 - 02 - 201 in Tower B8, admeasuring 1903.72 sq ft in the above said project for a total sale consideration of Rs.2,13,81,120.68. The complainants deposited Rs.2,02,94,893/- towards this flat by way of several instalments. Thereafter, an Apartment Buyers Agreement was entered into between the complainants and the opposite party on 31.03.2014. As per clause 13.3 of the Apartment Buyers Agreement (in short 'the ABA'), the opposite party committed to offer possession of the flat within 42 months with an additional grace period of six months from the date of building plan approval, which was obtained on 23.07.2013, i.e., on or by 27.11.2018, failing which compensation at the rate of Rs.7.50 per sq foot was promised by the opposite party to the complainant. As the possession was not offered by the opposite party by 06.11.2018, the complainants have approached this Commission alleging deficiency in service and unfair trade practice in imposing entirely one sided conditions in the ABA that are in favour of the opposite party which the complainants as consumers were unable to contest. The complainants have sought full refund of the deposited amount and other reliefs as per the following prayer:
(a) Directing the opposite parties to pay/ refund to the complainant a sum of Rs.2,02,94,893/- which had been paid by the complainant towards the Unit no. CD-B8-02-201 in the project 'The Corridors' situated at Sector 67 - A, Gurugram, Haryana, along with interest @ 20% per annum till its realisation.
(b) Award the cost and litigation expenses and compensation for harassment and mental agony to the tune of Rs.5.00 lakh to the complainants; and
(c) Pass such other or further orders as this Hon'ble Commission may deem fit and proper in the interest of justice and in favour of complainant.
3. The opposite party has contested the complaint by way of reply and evidence by way of affidavit. The objections are both preliminary and on merits. The contention of the opposite party is that the earnest money deposited by the complainant was forfeited as the booking of the apartment was cancelled in accordance with the terms and conditions set out in the booking application form on account of default in payments. The complaint filed before this Commission was premature as the period of 48 months needs to be calculated with effect from 27.11.2014, the date on which the fire safety scheme was approved. He further states that this Commission has no jurisdiction under the CP Act, 1986 to amend/ modify/ re-write the terms of the agreement. It is averred that the allegations in the complaint are of a contractual nature and as such triable only in a civil court. It is also averred that the complainant is not a consumer since he had booked the flat for speculative gains. It has been submitted that under the CP Act 1986 compensation can only be as per Section 14 (1) (d) of the CP Act 1986, and that this section is not attracted in this case. The OP's case is also that the ABA related to an agreement to sell an apartment by the OP and no 'service' was to be rendered within the meaning of Section 2 (1) (o) of C P Act, 1986 to the complainant. Therefore, there is no deficiency in service involved.
4. We have heard the learned counsel for the complainant and perused the records. The learned counsel for the opposite party after seeking adjournments on several occasions, again prayed for time on grounds of non-availability of the senior counsel, even though the party was represented by a law firm with other advocates on record. None appeared even after a short adjournment to argue the case. Arguments were therefore heard on behalf of the complainant who submitted that the complaint was squarely covered by a judgement of the Hon'ble Apex Court. The reply and evidence filed by the opposite parties were therefore considered as the final arguments.
5. Learned Counsel for the complainant has relied mainly on the judgement of the Hon'ble Supreme Court in Ireo Grace Realtech Pvt. Ltd., Vs Abhishek Khanna (2021) 3 SCC 241 dated 11.01.2021 which relates to the same project of the opposite party, i.e., 'The Corridors', Sector 67 - A Gurgaon, Haryana. It is his averment that as per this judgement, the Hon'ble Apex Court has taken cognizance of the fact that the project had both completed and incomplete/un-commenced towers in Phases I and II of the project. Based on the fact that the occupancy certificate from the statutory authority was available only in respect of certain towers on the date the case was filed and noting the fact that the builder-opposite party had not commenced/completed other towers in Phase II, the Apex Court had balanced the interests of both the consumer complainants and the builder-opposite parties by (a) equitably allocating the obligations for a full refund of payment to be made with penal interest to the allottees in the case of incomplete/un-commenced flats for the interregnum between the committed date and the date of making of the offer of possession by the opposite party and (b) the obligation to accept possession where the complainants had prayed for possession to be made with compensation for the delay in the case of flats/towers where construction was completed and occupancy certificate was available. In doing so the Hon'ble Apex Court reiterated the law with regard to the right of the consumer to seek refund in view of the inordinate delay on the part of the opposite party as laid down in Pioneer Urban land and Infrastructure Ltd., vs Govindan Raghavan in Civil Appeal no. 12238 of 2018 decided on 02.04.2019 (2019) 5 SCC 725. It also reaffirmed that "It would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession" as laid down in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, Civil Appeal No. 3182 of 2019 decided on 25.03.2019 and that in view of an absence of an OC or offer of possession, the right of the complainant to refund with compensation cannot be denied.
6. The complainant also relied upon Kamal Sood vs. DLF Universal Ltd. III (2017) CPJ 7 (NC) where it was held that:
"...............unfair trade practice on the part of the builder to collect money from the prospective buyers without obtaining the required permissions such as zoning plan, lay out plan etc. it is the duty of the builder to obtain the requisite permission or sanction for construction etc. secondly, in such a case, if there is any express promise that the premises would be delivered within the stipulated time, and, if not done so escalation cost is required to be borne by the builder."
7. The opposite party has contested the averments of the complainants on the grounds that the complainant had forfeited the earnest money as booking of the apartment had been cancelled due to default in payments; the complaint filed before this Commission was premature since the stipulated committed period was not yet over; and that the complainant is not a 'consumer' as per section 2 (1) (d) of the CP Act, 1986 in view of the fact that he had booked the flat for speculating in real estate. It is also argued that this Commission lacks jurisdiction to amend/ modify/ re-write the terms of the agreement. With regard to the argument that the case was covered by the judgement of the Hon'ble Supreme Court in Ireo Grace Realtech Pvt. Ltd., Vs Abhishek Khanna (supra), it is submitted by the opposite party that in view of an occupancy certificate dated 27.01.2022 being available the complainant is obligated to take possession of the flat.
8. The admitted facts of the case are that the opposite party had through clause 13.3 of the ABA committed to 27.11.2018 as the date of handing over of the possession of the flat. A committed date was very specifically indicated after 42 months and was in fact, supported by a further period of 6 months as the 'Grace Period'. It is also an admitted fact that the complainants had continued to make deposits of various instalments with the opposite party between 2013-17. The opposite party also admits that the construction of Tower B8 in which the flat allotted to the complainants herein, viz., flat no 201 is located, has not been completed and that there is neither an OC in respect of this flat nor has a letter offering possession been issued. It is not denied by the opposite party that the period of 48 months from 27.11.2014 (including the grace period of 6 months), expired on 27.11.2018.
9. It is the case of the complainant that the judgement in Ireo Grace Realtech Pvt. Ltd., Vs Abhishek Khanna (supra) distinguishes towers/residential units which stand completed and possess an occupancy certificate and for which possession has been offered from those towers/residential units which have either not been completed with an occupancy certificate or have not been commenced construction. As this judgment is in respect of the very same project in which the complainants had booked flats, the same covers the instant case as well and the relief provided by the Apex Court in Abhishek Khanna (Supra) should also be extended to the complainant. The opposite party has not been able to argue against this position or produce any judgement of the Hon'ble Supreme Court that modifies or negates it. The accepted position of law as per Pioneer Urban land and Infrastructure Ltd., Vs Govindan Raghavan (supra) and Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra (supra) have also not been assailed by the opposite party. In the instant case, complainants had been assured possession in 48 months as per the ABA. However, the same has not been done even on date, i.e., after a lapse of nearly 41 months, even though Rs.2,02,94,893/- has been paid by him which is a fairly sustentative amount. It is the case of the complainant that the judgement in Abhishek Khanna (supra) distinguishes towers/residential units which stand completed and possess an occupancy certificate and for which possession has been offered from those towers/residential units which have either not been completed with an occupancy certificate/have not commenced construction. As this judgement is in respect of the very same project in which the complainants had booked flats, the same covers the instant case and the relief provided by the Apex Court in Abhishek Khanna (supra) should also be extended to the complainant. The opposite party has not been able to argue against this position or produce any judgement of the Hon'ble Supreme Court that modifies or negates it. The accepted position of law as per Pioneer Urban land and Infrastructure Ltd (supra) and Devasis Rudra (supra) have also not been assailed by the opposite party. In the present case, complainant had booked the flat in the project 'The Corridors' on 14.03.2013 and were assured possession as per the ABA on 23.07.2017. However, the same has not been done even on date, i.e., after a lapse of approximately 15 months. No occupancy certificate has been obtained by the opposite party and no offer of possession made to the complainant. A sum of Rs 1,83,55,760/- amounting to nearly 95% of the sale consideration has been collected by the opposite party in the meanwhile which is a very substantial amount. No dispute regarding payments has been raised by the opposite party who has continued to accept deposits from the complainant. The delay in offering possession is, therefore, indisputably a case of deficiency in service as well as an unfair trade practice on part of the opposite party.
10. In Abhishek Khanna (Supra) the Hon'ble Apex Court has held that the committed date has to be reckoned from the date of the sanction of building plans which includes the date of approval of the fire safety scheme. Admittedly, this scheme was approved on 27.11.2014. Therefore, the period of 48 months committed by the opposite party to offer possession after obtaining the occupation certificate should be taken as 27.11.2018.
11. The contentions of the opposite party of jurisdiction cannot be accepted. It is well settled that the enactment of the RERA 2016 does not preclude the seeking of relief under the CP Act, 1986 as held by this Commission in Anil Patni & Anr. vs. M/s Imperia Structure Ltd. (CC/3011/2017). It has also been held by the Hon'ble Apex Court in M/S Emaar MGF land Ltd. Vs. Aftab Singh I (2019) CPJ 5 (SC) that in a case of a complaint under the CP Act, 1986 the civil remedies before a civil court or through arbitration will not apply. The opposite party has not been able to substantiate its averment that the complainant is not a 'consumer', the onus of which is squarely upon him in terms of Kavita Ahuja Vs. Shipra Estate Ltd. & Jai Krishna Estate developers Pvt. Ltd. & Ors. I (2016) CPJ 31 (NC). The arguments that there was no promise of a service amounting to deficiency in service and misrepresentation constituting an unfair trade practice do not hold water as these issues stand settled in Ireo Grace Realtech Pvt. Ltd., Vs Abhishek Khanna (supra) as well as in Pioneer Urban Land Infrastructure Ltd., vs Govindan Raghavan (supra). The principle of equity of obligations has been laid down by the Hon'ble Supreme Court in Abhishek Khanna (supra) in the very same project of the opposite party. In view of the settled position, the opposite party cannot deny the complainants their right to a full refund or to be kept waiting indefinitely. In Abhishek Khanna (Supra) the Hon'ble Apex Court has held that the committed date has to be reckoned from the date of the sanction of building plans which includes the date of approval of the fire safety scheme. Admittedly, this scheme was approved on 27.11.2014. Therefore, the period of 48 months committed by the opposite party to offer possession after obtaining the occupation certificate should be taken as 27.11.2018. As there is neither an occupancy certificate in respect of the flat available nor has an offer of possession been made, this case would fall under the category of flats that are incomplete/ un-commenced for which the opposite party (Builder) is obligated to refund the amount deposited by the complainant along with interest and costs.
12. We have also gone through the order of the Hon'ble Supreme Court in Ireo Grace Realtech Pvt. Ltd., (Supra) and we are satisfied that the current appeal/ complaint is covered by this judgment as it relates to the same project in which the complainant had booked its flat and the Hon'ble Supreme Court has ordered full refund with interest from the date of the promise of offer of possession till repayment.
13. Accordingly, we consider it appropriate to allow the complaint with the following directions:
(a) The opposite party shall refund the amount of Rs.2,02,94,893/- along with simple interest @ 9% p.a. thereon from 27.11.2018, the date of committed possession per the ABA till the date of payment;
(b) Opposite party is directed to pay litigation costs of Rs 50,000/- to the complainant;
(c) Order to be complied within 3 months of the receipt of the certified copy of the order;
(d) Opposite party shall be liable to pay a penal interest of 12% per annum in case of default.
14. With these directions, the consumer complaint stands disposed of.
......................J DEEPA SHARMA PRESIDING MEMBER ...................... SUBHASH CHANDRA MEMBER