National Consumer Disputes Redressal
Smt. Reshma Bhagat & Anr. vs M/S. Supertech Ltd. on 4 January, 2016
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 118 OF 2012 1. Smt. RESHMA BHAGAT & ANR. D-9, NDSE Part-II, New Delhi - 110 049. 2. Shri. Tarun S. Bhagat D-9, NDSE Part-II, New Delhi - 110 049. ...........Complainant(s) Versus 1. M/S. SUPERTECH LTD. 1114, 11th Floor,
Hemkunt Chamber, 89, Nehru Place New Delhi - 110 019. ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER HON'BLE DR. S.M. KANTIKAR, MEMBER
For the Complainant : Mr. K.R. Manjani, Advocate
With Mr. Tarun Aswami, Advocate For the Opp.Party : Mr. Ravi Sikri, Sr. Advocate
With Mr. Deepank Yadav, Mr. Keshav Mohan &
& Mr. Rishi A., Advocates with him.
Dated : 04 Jan 2016 ORDER
JUSTICE J.M. MALIK, PRESIDING MEMBER
1. It is apparent that the Opposite Party in this case has many irons in the fire and therefore they could not make any headway with Napolean-I project as promised in the agreement, though, it insists time and again that nobody can travel outside the agreement. The OP's promise proved to be not worth a woop. Can the OP or this Commission force or compel the complainants to accept the other left over flat in another or adjacent locality?.
2. Smt. Reshma Bhagat and her son, Sh. Tarun Bhagat, the complainants, in this case, sold a plot in Bangalore and were to get exemption from capital gains. They, together, booked a 7-Star Luxurious flat/ apartment in Czar Suites, measuring 2490 sq.ft super area with M/s. Supertech Limited, the OP. The said apartment was to have 4-BHK with servant quarter and modern facilities. The OP-M/s. Supertech Limited, issued allotment letter dated 03.05.2008, which has been placed on record as Annexure A. The said letter mentioned about the payment schedule and promised that possession would be given within one year from 03.05.2008 and latest by December, 2009. It was also stipulated that in case the possession is not given by December, 2009, the OP will be liable to pay damages @ 5% per sq.ft., per month, for a period of 12 months and thereafter at Rs.8/- per sq.ft., per month, vide letter dated 07.09.2009. The terms and conditions were attached and marked as Annexure B. The apartment was to be constructed by the OP, on Plot No. GF02, Sector Omicron-I, Greater Noida. The complainant entered into an agreement dated 03.05.2008, supplemented by letter dated 07.05.2008, which have been placed on record as Annexures B to B-2.
3. The complainants made payment of Rs.63,99,727/-, i.e., about 86.66% of the agreed value of the flat, by September, 2008, within four months of the allotment letter. The installment, due in September, 2009, was to be paid only when the flat appeared to be almost ready and it was apparent that it's possession would be handed over in December, 2009. The complainants inspected the flat in March, 2009, however, there was no activity at all regarding the construction of Tower, Nepolean, in which the complainants were to get the aforesaid flat. Consequently, the complainants sent a letter dated 02.03.2009, to the OP, which has been placed on record as Annexure C. Reminder letters dated 06.05.2009 and 17.08.2009, Annexures C-1 & C-2 were also sent. The OP sent a letter dated 07.05.2009 , promising possession by October, 2010, alongwith penalty. On 13.09.2009, the complainants replied vide Annexure E and informed the OP that penalty was too small. They requested the Op that it should be equal to the rate at which corporates borrow loans from a Bank. No reply was received. Again, reminder letters dated 19.10.2009 and 01.02.2010, marked as Annexures E1 and E2 were sent, wherein it was unequivocally alleged that the OP had no intention to honour the Agreement and they were making false verbal promises. It was also pointed out that the OP was using the funds of the complainants on low penalty clause, but no construction was made. Several oral requests were made but those did not ring the bell.
4. Ultimately, it transpired that the OP did not construct this building with 4BR apartments which was marked as 7-Stars Luxury project. The complainants informed the OP that they would consider accepting apartment on 11th floor in new location of truncated Napoleon-I, overshadowed by Nicholas Towers if substantial reduction was offered in price. It is also stated that at the time of booking, there was no Nicholas Towers. After much correspondence, the OP offered Blocks 'A', 'B' and 'C', as per letter dated 10.11.2010, marked as Annexures H-1 to H-2, but those flats, in no way, match or near the flat which was agreed to be allotted to the complainants on 03.05.2008. The OP was informed of this, vide letter dated 18.11.2010, which has been placed on record as Annexure I. The Napoleon-I building did not start at all. The OP also refused to return the money with interest @ 1.5% per month, on the amount deposited by the complainants, along with penalty.
5. Although, no construction was commenced, yet, the OP sent letter dated 06.02.2011, marked as Annexure K, demanding more payment. The OP also gave some offer in Tower Darius-7, vide letter dated 28.03.2011, which has been annexed as Annexures L & L-1, like the earlier letter H-1. However, this flat was much smaller and there was no servant quarter. The first flat offered was situated on 17th floor, but this flat was situated on 13th floor. Whereafter, correspondence, went on, but no desired result came out. Consequently, this complaint was filed before this Commission, on 01.05.2012, with the following prayers:-
"(a) Refund of Rs. 64 lakhs paid by them.
(b) Interest at the rate of 1.5% per month which amount to approximately Rs.44 lakh till March, 2012.
(c ) Loss of Rs. 11 lakh, on account of payment of capital gain tax.
(d) Unliquidated damages of Rs.20 lakhs on account of increase in prices of flats, and due to tension, anxiety, waste of time, expenses on correspondence, conveyance etc.
The above will approximately total of Rs.1,40,00,000/-".
DEFENCE :-
6. Since both the parties entered into a contract, the terms and conditions of the allotment letter are binding on both the parties. Any action needs to be in sync with the provisions of the allotment letter and none of the parties can do any act beyond the terms agreed in the allotment letter. The total amount paid by the complainant is Rs.63,99,727/- only, towards the part payment of flat in question, booked by them. Consequently, this Commission has no pecuniary jurisdiction. The complainants booked a 7-Star Luxurious Flat to invest their money to gain profit from the flat in question booked with it. Consequently, the complainants are not consumers. The complaint is pre-mature, the complainants were offered an alternative flat as per Clause 27 of the terms and conditions of the agreement, but the complainants failed to pay the balance consideration in respect of the flat in question, booked by them, to the OP. There is 'force majeure' clause and the reasons beyond the control of OP, like agitation by farmers, verdicts of the Hon'ble High Court of Allahabad on land areas nearby the said project, were mainly responsible for the delay in offer of possession to the complainants. Consequently, the allegations made by the complainants cannot be covered under the definition of service. The OP has never violated the terms and conditions of the agreement.
7. The case entails intricate questions of law and facts and, therefore, this Commission has no jurisdiction to try this case. The complainants have waddled out of their commitments and they did not pay the amount, as per the agreement. The total consideration of the flat booked by the complainant was Rs.73,84,300/-. The OP had offered Darius-6 Tower, having height of Tower up to G+13 Tower. The complainants were informed that "as per your convenience, we can offer you the same size and specification apartment on a lower floor and requested the complainants to inform their consent for the suitable floor". It is alleged that the complainants raised objections such as, substantial reduction in price. Another flat was offered, but the complainants rejected the same. The OP, vide its letter dated 06.02.2011 asked the complainants, to pay a sum of Rs.5,05,884/-, but they refused to accept Darius-7. They were offered a pent-house but the complainants did not agree. The allegation of the complainants that they lost the chance of buying the flat and suffered losses up to Rs.11.00 lakhs by way of losses in capital gain tax, is not correct, because they did not honour the commitments. All the other allegations have been denied.
SUBMISSIONS AND FINDINGS :
Are the Complainants 'Consumers?'
8. We have heard the counsel for the parties and perused their written synopses. Counsel for the OP submits that the complainants are not consumers, as defined under the C.P.Act, 1986. It is contended that the admission on the part of the complainants that they had income from sale of property at Bangalore is itself sufficient to prove that they are not consumers. Also, the complainants, only to avoid payment of capital tax, they invested in the project of the OP. The intent and purpose of entering into an agreement for the allotment of the Unit in the project of the OP by the complainants was not for the purpose of residing therein, but solely for the purposes of investment and earning profit and gains out of the investment.
9. Secondly, Smt. Reshma Bhagat, owns a property with her husband, Sh. S.K. Bhagat, at a posh locality in South Delhi, i.e., property No.D-9, NDSE, Part-II, New Delhi. Moreover, Sh. Tarun S. Bhagat, is an NRI. Consequently, the complainants cannot claim themselves to be 'consumers'.
10. We are unable to clap any significance with these faint arguments. It must be borne in mind that after selling the property at Bangalore, and in order to save the money from riggers of capital gain tax, under Section 54 of the Income Tax Act, 1961, there lies no rub in getting the property, anywhere, in whole of India. There is not even an iota of evidence that they are going to earn anything from the flat in dispute. From the evidence, it is apparent that the same had been purchased for the residence of the complainants. Moreover, Sh. Tarun S. Bhagat, who is an independent person. It cannot be made a 'rule of thumb' that every NRI cannot own a property in India. NRIs do come to India, every now and then. Most of the NRIs have to return to their native land. Each NRI wants a house in India. He is an independent person and can purchase any house in India, in his own name. There is no evidence which may go to show that he is dependent on his father, Sh. S.K. Bhagat. Sh. S.K. Bhagat was also present during arguments, along with his wife. He also submitted that property No. D-9, NDSE, Part-II, New Delhi, has been declared as a commercial area. He does not want to live there. He prefers to reside with his wife and son, at a far off place, away from Delhi. They had selected 17th floor so that they could have fresh air. It is not out of place to mention here that when the arguments were going on, we tried our best to get the matter settled. The case was fixed, consecutively, for three days. The parties were sent to the new place for accepting new flats which were offered by the OP. They left the premises of the Commission from the Commission itself, with the representative of the OP, who took them in his own car, but ultimately, they did not like the flats. Consequently, no settlement could be reached. Above all, in modern age, most of the father and son do not want to live together and that is why, the son is also a 'consumer' under the C.P.Act, 1986. Every NRI wants to have a separate house to live in, whenever he visits his native land. Consequently, all these arguments have to be eschewed out of consideration.
PECUNIARY JURISDICTION
11. The second submission made by the counsel for the OP was that this Commission has got no pecuniary jurisdiction. The complainants have paid a sum of Rs.63,99,727/- to the OP, against the total consideration of Rs.73,84,300/-. The complaint is liable to be returned for want of pecuniary jurisdiction of this Commission, in terms of Section 21(a)(i) of the C.P.Act, 1986. It is stated that the complainants have added the following components for invoking the pecuniary jurisdiction of this Commission - (1) refund of Rs.64.00 lakhs (2) interest @ 1.5% per month, amounting to Rs.44.00 lakhs, till March, 2012 (3) Loss of Rs.11.00 lakhs on account of payment of capital gain tax and (4) unliquidated damages of Rs.20.00 lakhs.
12. The proof of payment of Rs.11.00 lakhs did not see the light of the day. The complainants have tried to bring the amount to more than Rs.1.00 crore, for invoking the pecuniary jurisdiction of this Commission which is not admissible in law. The attention of this Commission was invited towards the case reported in Shahabad Co-operative Sugar Mills Ltd., Vs. National Insurance Co. Ltd. & Ors., II (2003) CPJ 81 (NC), decided by a 3-Member Bench of this Commission, wherein, it was held that ".... Thus, the State Commission had acted erroneously in adding to the amount of Rs.18,33,000/- the interest @ 18% p.a., thereon, till date of filing of complaint for the purpose of determination of pecuniary jurisdiction of this Commission". Therefore, the present complaint is liable to be returned as it is much below of Rs.1.00 crore, i.e., below the pecuniary jurisdiction of this Commission.
13. These arguments lack conviction. In Brij Pal Sharma Versus Ghaziabad Development Authority (2005) 7 Supreme Court Cases 106, Manjul Srivastava Vs. Govt. of U.P. and Others JT 2008 9 S.C. 584 and in K.A. Nagamani Vs. Karnataka Housing Board, Civil Appeal Nos. 6730-6731 of 2012 decided on 19.09.2012, interest at the rate of 18% p.a., under such like circumstances, was granted.
14. Again, it appears that in the instant case, the total amount is going to be more than one crore. The case is within the parameters of pecuniary jurisdiction of this Commission.
15. Secondly, it must be borne in mind that this question was raised at a very late stage, i.e., at the fag end of the hearing of this case. Consequently, at this late stage, we do not think it proper to return the complaint, in view of the judgement passed by the Hon'ble Supreme Court in Ganesh Polytex Ltd. Versus Transport Corpn. of India Ltd. (2010) 10 Supreme Court Cases 418, wherein, the following order was passed:-
"1. The complaint instituted by the appellant before the National Consumer Disputes Redressal Commission on 7-12-1993 was disposed of by the National Commission on 7-6-1996 by the judgment impugned in this appeal by which the parties have been relegated to a civil suit with the observation that the time spent by the appellant before the Commission in pursuing the remedy there would not be counted towards the period of limitation provided for the filing of the suit.
2. During the pendency of the case before the National Commission, the parties had filed their pleadings, documents and their affidavits. The Commission had also heard the arguments and had also obtained the written synopsis from the parties. It was at this stage that the Commission held that the parties may better institute a suit in the civil court as the case involved complicated questions of facts.
3. Such a controversy was also involved in Amar Jwala Paper Mills (India) v. State Bank of India in which this Court, inter alia, held that: (SCC p. 388, para 4)
"4. While we would be reluctant to interfere with an order of the Commission that decides at an initial stage of a complaint that complicated questions of fact and law arise and that, therefore, the complainant must go before a civil court, we cannot be oblivious of the fact that in this case four years have passed and all the evidence has already been led by both sides before the Commission. In the circumstances, we think that the Commission must itself proceed to hear and decide the complaint."
4. The above observations apply on all fours to the facts of this case where too, after a lapse of three years, the Commission relegated the parties to the remedy of a civil suit.
5 In view of the above, the judgment passed by the National Commission cannot be sustained and is set aside. The appeal is allowed and the case is remanded to the National Commission to decide it on merits in accordance with law.
6. There shall be no order as to costs".
BONAFIDES AND QUANTUM OF COMPENSATION
16. The third submission made by the counsel for the OP was that in case the complainants intended to actually reside in the flat in question, they would have easily accepted the various offers made by the OP. The OP offered them several alternative units, of same size and same specifications, in the same project or in projects which are closer to the flat in dispute, at a lesser distance and a closer vicinity from Delhi, but they refused to accept the same. It was submitted that their refusal goes to prove the malafide intention on their part. Lastly, he pleaded that, as per the agreement, the complainants should be given the delay charges mentioned therein, in the agreement.
17. All these arguments are not convincing. It is well settled that nobody can force anybody to accept the flat of the choice of the OP. Any other flat cannot be imposed upon the consumers. They have got their free will to accept or reject the other flats offered to the complainants. It is difficult to fathom why, the flat which was promised to be given to the complainants, originally, was not given. No explanation is forthcoming. So far as delay is concerned, the OP has made lame excuses. No evidence was led that the Hon'ble Allahabad High Court asked the OP to stop the construction in the premises in dispute or there was agitation made by the farmers. The plea of 'force majeure' is nothing, but a ruse to make sure that the plea of delay raised by the OP stands accepted. There was no cause at all. The OP arbitrarily abandoned the premises after giving the promise to the allottees and went on to construct another Tower of their own choice. This is an indisputable fact that Napolean-I, as promised, was never constructed. The OP is long in promises but short in performances.
18. The first para of the written statement filed by the OP clearly shows the position of the OP. The same is hereby reproduced, as under :-
"The opposite party is one of the renowned developers of Delhi-NCR and is engaged in the developments of residential and commercial projects for the last 24 years. The company has always believed in fair and transparent dealings and its all projects are government approved. As of today, the company has a strong base of more than 50,000 happy and satisfied customers".
19. It is, thus, clear that the OP is a builder. It has not explained why it could not make Napoleon - I. It is, therefore, clear that they had other fish to fry. They have been utilizing the money received from the complainants and had no hesitation to feather its own nest, i.e., to make profits to oneself, often at the expense of others. This is how the builders like to adopt a Fabian policy. In para No.6 of the complaint, the complainants mention as under :-
"6. That it was also stressed that the respondent was wrongly using funds of the complainant on low penalty clause and no construction having been started is causing the mental agony and harassment. The respondent should pay penalty of 3% per month ......".
20. Thus builders play 'fast and loose' with the consumers. Instead of working against the clock, they harass the consumers to the greatest extent. That is why the consumers are exasperated by senseless delay.
21. In view of the facts and circumstances, it is clear that the OP has made arbitrary terms and conditions in the agreement in its favour. It is a one way traffic. The Commission is not bound by such like agreement. In Manjul Srivastava Vs. Govt. of U.P. and Others, (Supra), it was held:-
"14. Before the Commission, the GDA, on affidavit, asserted that no plot was available for allotment to the appellant in the Govindpuram Housing Scheme and, therefore, it would be practically impossible to allot any plot, which is not available with GDA for allotment, even if it is held that allotment of plot was made by GDA in favour of the appellant. A decision of this Court in the case of Alok Shanker Pandey vs. Union of India & Ors. [(2007) 3 SCC 545] may be referred as it was also cited at the Bar. In that decision it has been clearly held that the amount of interest to be awarded for refund of any amount deposited by the candidate would depend upon the facts and circumstances of each case. Such being the state of affairs, we are of the view that the appellant should be allowed to get refund from the GDA the entire sum with interest at the rate of18% not at the rate of 5% as we find that from the brochure itself, it would be clear that in the event, the appellant could not deposit the entire amount after the allotment is made within certain time, 18% interest shall be levied on the appellant. It is an admitted position that the appellant deposited the entire amount as directed by the GDA in the year 1989 and the order of cancellation of reservation of a plot in favour of the appellant was made after more than seven years and, therefore, we must hold that the respondent was liable to pay interest not at the rate of 5% but at the rate of 18%. In the facts of the present case, since the GDA had utilized the entire amount of the appellant for their own purpose till they had refunded the amount to the appellant, we confirm the order of the Commission holding that there was no "unfair trade practice", but in the facts and 16 circumstances of the present case, we allow these appeals in part and direct the respondent to refund the money already deposited with the GDA with interest at the rate of 18 per cent and not at the rate of 5%".
22. In K.A. Nagamani Vs. Karnataka Housing Board, Civil Appeal Nos. 6730-31 of 2012, decided on 19.09.2012, wherein, the Hon'ble Apex Court has held at paras 25, 26, of its judgment, as under :
"25. The case of the complainant is covered by one of the examples cited by this Court in Ghaziabad Development Authority Vs. Balbir Singh, as quoted above. In this case also, the amount was simply returned and the complainant is suffering a loss inasmuch as she had deposited the money in the hope of getting a flat, but she is being deprived of that flat and thereby deprived of the benefit of escalation of the price of that flat. Therefore, the compensation in this case should necessarily have to be higher, as per the decision of this Court.
26. For the reasons aforesaid, we allow the appeals and pass the following orders :-
i) The respondent is directed to pay the appellant-complainant interest at the rate of 18% per annum on Rs.2,67,750/- from the date of its respective deposit till the date of realization with further direction to refund the amount of Rs.3,937/- to her, as directed by the Consumer Forum.
ii) The respondent is directed to pay the appellant - complainant further sum of Rs.50,000/- as compensation for deficiency in service on their part.
iii) The respondent is also directed to pay the appellant-complainant a sum of Rs.20,000/-
towards cost of the litigation incurred by her".
23. Furthermore, the complainant has placed reliance on an authority of the Hon'ble Apex Court in "Anupam Chakraborty & Anr. Vs. Supertech Ltd. & Ors., Civil Appeal No.1962 of 2015, dated 16.02.2015 by Hon'ble CJI - H.L. Dattu and Hon'ble Justice A.K. Sikri, wherein, it was held that the complainants are entitled to refund of their money received, along with interest @ 14% p.a., compounded annually. The counsel for the complainants submitted that the amount be paid compounded and annually. However, this authority is not applicable to the facts of this case. In the said authority the OP itself had made three different offers and the complainant had opted for this 14% p.a., compound interest offer.
24. However, the counsel for the OP submitted that the OP is facing financial stringency. He argued that due to fall in prices, the people are more interested to get their amount back and now-a-days, nobody is interested to get a new flat.
25. Keeping in view all the facts and circumstances, we follow the above said judgment's observation in K.A. Nagamani and other judgments, cited above and direct the OP to return the amount of Rs.63,99,727/-, along with interest @ 18% p.a., from the date of its deposit(s), till its recovery. The complainants have not produced the receipts showing that capital gain tax was paid by them. Hence, no order in this respect. There shall be no order as to costs.
......................J J.M. MALIK PRESIDING MEMBER ...................... DR. S.M. KANTIKAR MEMBER