National Consumer Disputes Redressal
Ramkrishna Sharad & Anr. vs M/S. Wave-Megacity Center Pvt. Ltd. on 20 September, 2019
Author: R.K. Agrawal
Bench: R.K. Agrawal
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 640 OF 2018 1. RAMKRISHNA SHARAD & ANR. S/O SHRI SHARAD VANKTESH PARSODKAR
R/O PLOT NO. 2,
GAZETTED OFFICERS COLONY,
BEHIND LAW COLLEGE,
CIVIL LINES, NAGPUR-440001 MAGARASHTRA 2. MRS. SMITA RAMKRISHNA PARSODKAR W/O SHRI RAMKRISHNA SHARAD PARSODKAR
R/O PLOT NO. 2,
GAZETTED OFFICERS COLONY,
BEHIND LAW COLLEGE,
CIVIL LINES, NAGPUR-440001 MAHARASHTRA ...........Complainant(s) Versus 1. M/S. WAVE-MEGACITY CENTER PVT. LTD. THROUGH ITS MANAGING DIRECTOR/ DIRECTORS
REGD. OFFICE AT:
MEZZANINE FLOOR,
M-4, SOUTH EXTENSION PART II, NEW DELHI-110049 ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT HON'BLE MRS. M. SHREESHA,MEMBER
For the Complainant : Ramkrishna Sharad Parsodkar,
Complainant No.1, In person
Mr. Pravin Kumar Aggrawal, Advocate For the Opp.Party : Mr. Arjun Nanda, Advocate
Mr. Anirudh Chadha, Advocate
Ms. Shreya Nair, Advocate
Ms. Simran Aggarwal, Advocate
Dated : 20 Sep 2019 ORDER
PER MRS. M. SHREESHA, MEMBER
This Complaint has been filed under Section 21 (a) (i) of the Consumer Protection Act, 1986 (in short "the Act") against M/s. Wave-Megacity Centre Pvt. Ltd. (hereinafter referred to as "the Developer"), seeking the following reliefs:
direct the Opposite Party to refund the entire deposited amount of Rs.64,20,014.81 P. (Sixty Four Lacs Twenty Thousand Fourteen Rupees and Eighty One Paise);
direct the Opposite Party to pay Rs.51,65,766/- (Rupees Fifty One Lacs Sixty Five Thousands Seven Hundred & Sixty Six) towards interest calculated at the rate of 18% per annum from the date of respective deposit till 12.03.2018;
direct the Opposite Party to pay further interest @ 18% per annum on the deposited amount from 12.03.2018 till all the money is actuallypaid by the Opposite Party to the Complainants;
direct the Opposite Party to pay an amount of Rs.20,00,000/- (Rupees Twenty Lakhs) to the Complainants as compensation for the mental agony and harassment suffered by the Complainants on account of the gross deficiency in service rendered by the Opposite Party;
award the cost of the litigation; and
grant any further or other relief(s) in favour of Complainants as this Hon'ble Commission may deem just, fit and proper in view of the facts of the case and in the interestof justice.
2. The brief facts as set out in the Complaint are that the Complainants, residents of Nagpur, Maharashtra, were looking for a residence for their son and came to know about the project "Serviced Residences" in Wave City Centre, at Plot No. CC-001, Sector 25A & 32, Noida. Thereafter, the Complainants contacted the representatives of the Developer, who assured them that the Developer had all the rights over the land and obtained all necessary permissions. Believing the assurances made, the Complainants applied for a Flat and were allotted Flat No. HRT-1 TR-H2702 in the month of November, 2012. Thereafter based on the representations made by the officials of the Developer, the Complainants opted for change of Flat to Flat No. HRT-1 TR-H2402 and accordingly Flat No. 2402, Tower-R, in Block Trucia (2D) having super area of 2066.03 sq. ft., was allotted to the Complainants.
3. It is averred that the Agreement was executed between the parties on 12.12.2012; that the Agreement was a printed format and there was no scope for any alteration of any of the terms of the Agreement and the Complainants were made to sign on the dotted lines of the Agreement despite some of the clauses being one sided and unfair; as per Clause 5.1 of the Agreement, the possession of the Flat was to be delivered within 48 months with additional grace period of six months from the date of execution of the Agreement, which ended on 11.06.2016. It is averred that the Complainants opted for a construction linked payment plan and till date paid an amount of ₹64,20,014.81 paise as per various demands made by the Developer. The payment details are as follows:
s. No.
Date
Receipt/ Challan No.
Amount (₹) Paid
1.
23.11.2012
IR201202803
5,00,000
2.
IR201202839
10,23,078
3.
IR201203871
10,00,000
4.
IR201203872
6,17,202.81
5.
IR201300201
8,79,553
6.
IR201300202
7,00,000
7.
IR201401673
4,46,346
8.
IR201401674
4,50,000
9.
Ch.-373231
4,00,000
10.
Ch.-000003
3,86,719
11.
TDS Deposit
7,616
12.
TDS Deposit
9,500
Total
64,20,014.81
4. It is averred that despite expiry of the stipulated period, the construction of the Flat with all amenities is nowhere near completion and there is no possibility of it being completed in the near future. It is further averred that the Developer has abandoned the project and no construction took place above the ground floor. It is pleaded that the Complainants have been requesting the Developer either to hand over the possession of the completed Flat or refund their money together with interest but there was no response. On 08.02.2018, Complainants got issued a legal notice to the Developer seeking refund of the amount paid with interest @18% p.a., compensation of ₹20,00,000/- and costs, but there was no reply. Vexed with the attitude of the Developer, the Complainants approached this Commission seeking the aforenoted reliefs.
5. The Developer filed their Written Version admitting to the booking of the Apartment, receipt of an amount of ₹64,20,014/-, execution of the Agreement dated 12.12.2012 and to Clause 5.1 of the Agreement, wherein the Developer has agreed to handover possession within 48 months. It is averred that as per this Clause the Developer is entitled for a grace period of six months and this Clause was subject to force majeure circumstances. It is stated that the Complainants are not Consumers as defined under Section 2 (1)(d) of the Act as they have invested in the project in order to gain profits by setting up an the office for their son; that this Commission has no jurisdiction to entertain the instant Complaint as Clause 13 of the Agreement dated 12.12.2012 provides that any dispute between the parties shall be adjudicated under the provision of the Arbitration and Conciliation Act, 1996 and that the Complainants have defaulted in making timely payments and hence are not eligible to claim delay charges. It is stated that the delay in possession is to be dealt with as per clause 5.5 of the Apartment Buyer's Agreement dated 12.12.2012, according to which, the Developer would pay a sum of ₹7.5/- sq. ft. per month, provided that the delay is not on account of existence of any force majeure event. It is stated that there was an order of the National Green Tribunal to refrain all builders in Noida and Greater Noida from extracting ground water for the purpose of construction and hence water was not easily available for construction, indirectly impacting the construction work form January, 2013 to July, 2013; that there was an agitation by the farmers, which continued for two months (from July, 2013 to September, 2013), and that all the aforenoted reasons led to delay in the construction, which was beyond the control of the Developer and falls under force majeure condition. All the other averments made in the Complaint were denied and the Developer seeks dismissal of the Complaint with costs.
6. The Complainants filed their Affidavit by way of Evidence and marked Exhibit- C/1 (copy of Agreement dated 12.12.2012), Exhibit- C/2 (copy of Affidavit dated 15.12.2012), Exhibit- C/3 (copy of payment receipt dated 23.11.2012), Exhibit- C/4 (copy of payment receipt dated 30.11.2012), Exhibit- C/5 (copy of payment receipt dated 27.02.2013), Exhibit- C/6 (copy of payment receipt dated 27.02.2013), Exhibit- C/7 (copy of payment receipt dated 26.04.2013), Exhibit- C/8 (copy of payment receipt dated 26.04.2013), Exhibit- C/9 (copy of payment receipt dated 23.08.2014), Exhibit- C/10 (copy of payment receipt dated 23.08.2014), Exhibit- C/11 (copy of letter dated 08.12.2015), Exhibit- C/12 (Colly) (Copies of cheques dated 08.12.2015), Exhibit- C/13 (Colly) (copy of deposit challan receipt dated 09.12.2015), Exhibit- C/14 (Colly) (copy of deposit challan receipt dated 16.08.2014), Exhibit- C/15 (Colly) (copy of legal notice dated 08.02.2018), Exhibit- C/16 (Colly) (copy of original postal receipts) and Exhibit- C/17 (Colly) (copy of tracking report showing delivery of legal notice) on their behalf.
7. The Developer filed their Affidavit by way of Evidence and marked Exhibit OP /1 (Reply filed by the Developer), Exhibit OP/2 (copy of the Letter dated 11.06.2018), Exhibit OP/3 (copy of the demand dated 19.01.2013), Exhibit OP/4 (copy of the order dated 11.01.2013 of NGT), Exhibit OP/5 (copy of the order dated 14.06.2013), Exhibit OP/6 (copy of the order dated 18.10.2013), Exhibit OP/7 (copy of the Newspaper report dated 24.07.2013), Exhibit OP/8 (copy of the Newspaper reports dated July 2013) and Exhibit OP/9 (copy of relevant news reports dated )on its behalf.
8. Heard counsel for the parties at length.
9. In brief, it is an admitted fact that the Complainants paid an amount of
₹64,20,014/-, for Flat No. 2402, Tower-R, in Block Trucia (2D) having super area of 2066.03 sq. ft., and the Agreement was executed on 12.12.2012. As per Clause 5.1 of the Agreement, the Developer has agreed to handover possession within 48 months. Learned Counsel for the Complainants submitted that the Developer did not complete the construction nor offered possession and hence they seek refund of the amount paid with interest @ 18% p.a. together with compensation and costs.
10. The contention of the Learned Counsel for the Developer that the Complainants are not 'Consumers' and that they are only 'Investors' is completely unsustainable in the light of the judgement of this Commission in Kavita Ahuja vs. Shipra Estates I (2016) CPJ 31, in which this Commission has laid down the principle that the onus of establishing that the Complainants were dealing in real estate is on the Developer, which in the instant case they have failed to discharge or file any documentary evidence to prove their case that the Complainants are 'Investors' and not 'Consumers' except for saying that the Complainants want to set up a legal office for their son when there is a specific pleading in the Complaint that they had booked the Flat for residential purpose. Therefore we are of the considered view that the Complainants are 'Consumers' as defined under Section 2 (1) (d) of the Act. The contention of the Developer that this Commission does not have pecuniary jurisdiction to entertain the Complaint is unsustainable in the light of the larger bench decision of this Commission in "Ambrish Kumar Shukla & Ors. vs. Ferrous Infrastructure Private Limited I (2017) CPJ 1 NC", wherein it has been held that pecuniary jurisdiction should be construed keeping in view the total value and goods and services in addition to the compensation prayed for. In the instant case admittedly the Complainants have paid an amount of ₹64,20,014/- and has sought for damages by way of interest @ 18% p.a., compensation of ₹20,00,000/- and other reliefs which when totalled goes beyond One Crore and definitely attracts the pecuniary jurisdiction of this Commission. The other contention of the Developer that the clause of Arbitration bars this Commission from entertaining the Complaint, is also untenable as the Hon'ble Supreme Court in M/S Emaar MGF Land Limited vs. Aftab Singh - I (2019) CPJ 5 (SC), has laid down the law that an Arbitration clause in the Agreement does not bar the jurisdiction of the Consumer Fora to entertain the Complaint.
11. The stand taken by the Developer is that the project was delayed solely by Force Majeure Events. Except for stating that there was, shortage of water due to the order of the National Green Tribunal and there was an agitation by the farmers which led to the delay, which submissions, viewed from any angle, cannot be said to be a "Force Majeure Event" as the Developer has not filed any material on record to prove that the reasons were beyond their control, yet if we take into consideration the submissions of the learned Counsel, the shortage of water and agitation by farmers was only for a short period of time as averred by the Developer in the Written Statement and hence the Developer cannot take shelter under Force Majeure Event, when the booking was made in the year 2012 and 7 years has lapsed and the project is still not complete.
12. Learned Counsel appearing for the Developer also relied on Clause 5.5 of the Agreement and submitted that the liability of Developer on account of delay is limited only to the extent that the Developer would pay a sum of ₹7.5/- sq. ft. per month, provided that the delay is not on account of existence of any force majeure event. For better understanding of the Clause, the same is reproduced as hereunder:
"5.5 Subject to clause 5.1 and 5.2 above and further the Allottee(s) having complied with its obligations under the Application Form as well as this Super Premium/ Premium "Serviced Residences" Allottee(s) Arrangement, including but not limited to timely payment of the entire Consideration and other charges as per the payment plant opted by the Allottee(s), in the event of willful delay in construction of the Super Premium/ Premium "Serviced Residences" for reason attributable solely to the Developer , delay charges would be payable to the Allottee(s) at the rate of Rs.7.50/- (Rupees Seven and Fifty Paisa) per square feet per month. It is hereby clarified that the aforesaid delay charges shall be payable, subject to demand being raised by the Allottee(s) for the same (and will be calculated from the date of the said demand), till the date when possession of the Super Premium/ Premium "Serviced Residences" is offered to the Allottee(s). Further, all payments towards the delay charges, as due from the Developer, would be adjusted from the payment due to the Developer from the Allottee(s) at the time of the final settlement of Sale Consideration of the Super Premium/ Premium "Serviced Residences". Provided specifically that, the Developer shall be entitled, without the payment of any delay charges, not to offer the possession of the Super Premium/ Premium "Serviced Residences", to the Allottee(s), till all amount due and payable by the Allottee(s), as of such date, including all default , payment of interest etc., have been paid by the Allottee(s)."
(Emphasis supplied)
13. As per this clause, the Developer is liable to pay a sum of ₹7.50/- per sq. ft. per month. This Compensation is for the period of delay provided the Complainants accept possession. But in the instant case, the Complainants are seeking refund of the amount paid as the construction is still not complete as on the date of filing of the Complaint.
14. The Complainants do not want to take delivery of possession of the subject Apartment because of the delay in completion of the Project. Having regard to the fact that there is no committed date on behalf of the Developer with respect to the completion of construction and handing over of possession, we are of the considered view that the Complainants are justified in seeking refund of the money paid. As per Clause 4.4 of the Agreement the Developer charged interest @ 18% p.a. for any delayed payments made by the Allottees and there is no justification in offering a meagre ₹7.5/- per sq. ft., which comes to approximately 1.1% p.a. which is only a paltry percentage of what the Developer are charging for any delayed payments. Clause 5.5 in our opinion does not apply to the facts of this case because the Complainants on account of the delay on the part of the Developer in completing the construction are no more interested in the Apartment, which is a subject matter of the Agreement and seek refund of the amounts paid.
15. In any case, such a Clause (4.4), where the seller, in case of default on the part of the buyer seeks to recover interest a 18% p.a. but offers only ₹7.50/- per sq. ft. for any delay in delivery of possession, amounts to 'unfair trade practice' since it gives an unfair advantage to the seller over the buyer. We are of the view that such terms in the Clauses are unfair, arbitrary and one-sided and fall within the definition of 'unfair trade practice' as defined under Section 2(r) of the Act. At this juncture, we find it a fit case to place reliance on the recent judgement of the Hon'ble Apex Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, II (2009) CPJ 34 (SC), wherein the Apex Court has observed as follows:
"6.7. A term of a contract will not be final and binding if it is shown that the flat purchasers had no option but to sign on the dotted line, on a contract framed by the builder. The contractual terms of the Agreement dated 08.05.2012 are ex-facie one-sided, unfair, and unreasonable. The incorporation of such one-sided clauses in an agreement constitutes an unfair trade practice as per Section 2 (r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling the flats by the Builder.
7. In view of the above discussion, we have no hesitation in holding that the terms of the Apartment Buyer's Agreement dated 08.05.2012 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."
For all the aforenoted reasons, this judgement squarely applies to the facts and circumstances of this case.
16. We find it a fit case to place reliance on the judgement of the Hon'ble Supreme Court in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, II (2019) CPJ 29 (SC), in which the Hon'ble Apex Court has observed as hereunder:
"..........It would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession. By 2016, nearly seven years had elapsed from the date of the agreement. Even according to the developer, the completion certificate was received on 29 March 2016. This was nearly seven years after the extended date for the handing over of possession prescribed by the agreement. A buyer can be expected to wait for possession for a reasonable period. A period of seven years is beyond what is reasonable. Hence, it would have been manifestly unfair to non-suit the buyer merely on the basis of the first prayer in the reliefs sought before the SCDRC. There was in any event a prayer for refund.
In the circumstances, we are of the view that the orders passed by the SCDRC and by the NCDRC for refund of moneys were justified."
17. In the instant case also the Complainants cannot be made to wait indefinitely for possession of the Flat, as the construction is yet to be completed even after almost 7 years has lapsed from the date of booking. Therefore we are of the considered view that the Complainants are entitled for refund of the principal amount with reasonable interest.
18. The next question which arises for consideration is how much interest is to be paid to the Complainants on the principal amount. Logically, if the seller is charging interest from the buyer @ 18% p.a., we should have no hesitation in awarding the same rate. Having regard to the fact that the Banks have lowered the interest rate and the Hon'ble Supreme Court has been awarding interest keeping in view the current market situation and considering the recent decline in the cost of borrowing and return on the investments made with the Banks, we are of the view that interest @ 12% p.a. would meet the ends of justice, together with costs of ₹25,000/-. This interest is being awarded by way of all damages and no further compensation is being directed to be paid, keeping in view the ratio laid down by the Hon'ble Supreme Court in DLF Homes Panchkula Pvt. Ltd Vs. D.S. Dhanda, 2019 SCC Online SC 689, that compensation under multiple heads cannot be awarded.
19. In the result, this Complaint is allowed in part directing the Developer to refund the principal amount with interest @ 12% p.a. from the respective dates of deposit till the date of realisation together with costs of ₹25,000/-. This amount is directed to be paid within four weeks from the date of receipt of a copy of this order, failing which, the amount shall attract interest @ 14% p.a. for the same period.
......................J R.K. AGRAWAL PRESIDENT ...................... M. SHREESHA MEMBER