National Consumer Disputes Redressal
Rajesh Aggarwal vs M/S. Chintels India Ltd. on 30 January, 2024
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 2789 OF 2017 1. RAJESH AGGARWAL ...........Complainant(s) Versus 1. M/S. CHINTELS INDIA LTD. Through its Director A-11, Kailash colony NEW DELHI-110048 ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE RAM SURAT RAM MAURYA,PRESIDING MEMBER HON'BLE BHARATKUMAR PANDYA,MEMBER
FOR THE COMPLAINANT : MR. MISHAL J., ADVOCATE WITH COMPLAINANT IN PERSON FOR THE OPP. PARTY : MR. SHUBHAM DAYMA, ADVOCATE
Dated : 30 January 2024 ORDER
1. Heard Mr. Mishal J., Advocate, for the complainant and Mr. Shubham Dayma, Advocate, for the opposite party.
2. Rajesh Kumar Aggarwal has filed above complaint for directing the opposite party to (i) refund Rs.20013951/- with interest @24% per annum from the date of respective deposit till the date of refund; (ii) pay compensation for deficiency in service; and (iii) any other relief which is deemed fit and proper in the facts and circumstance of the case.
3. The complainant stated that M/s. Chintels India Limited (the OP) was a company, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing project. The OP launched a group housing the project in the name of "Chintel Paradiso", at village Babupur, Sector-109, Gurgaon, in the year 2012 and made wide publicity of its amenities and facility. Believing upon the representation of the OP, the complainant booked a flat and deposited booking amount on 22.05.2012. The OP, vide Allotment Letter dated 30.06.2012, allotted Unit No. B-1802, super area 3150 sq.ft., basic sale price @Rs.6477/- per sq.ft., exclusive of all other charges. The OP executed Apartment Buyer agreement on 10.10.2012, in respect of aforesaid flat, in which, basic sale price of Rs.21701050/-, exclusive of taxes, has been mentioned. Annexure-IV of the agreement provides payment plan as 'construction link payment plan'. Clause-11 of the agreement provides 36 months period from the date of actual start of construction of the tower concerned + grace period of six months for handing over possession. Clause-12 of the agreement provides for delay compensation and also gives right to the allottee to seek refund, after giving 90 days previous notice in case of delay in delivery of possession. The OP realized total Rs.20013951/- till 01.08.2016. The period of 42 months expired in October, 2016. The OP, vide letter dated 29.06.2017, offered possession to the complainant with final demand of Rs.4595188/- (exclusive of stamp duty and registration charges). Then the complainant visited the project and found that the flat allotted to the complainant was neither complete and nor in habitable condition. Then this complaint was filed on 19.09.2017, alleging deficiency in service.
4. M/s. Chintels India Limited (the OP) filed its written reply on 22.02.2018 and contested the complaint. The OP obtained Licence No.251 of 2007 dated 02.11.2007 and Licence No.9 of 2008 dated 17.01.2008 for developing for group housing project. After sanction of layout plan, the OP started construction and completed the construction. The OP applied for issue of "occupation certificate", which was issued on 20.06.2017. Thereafter, the OP vide letter dated 29.06.2017, offered possession the complainant. Instead of depositing balance amount and taking possession, the complainant has filed present complaint for refund of money. Small period delay occurred in completion of the construction, for which, the opposite party was entitled for extension under the agreement. After offer of possession, the complainant is not entitled for refund of his money. It has been denied that the construction of the flat was incomplete or it was not in habitable condition on the date of offer of possession. If the complainant invokes the provisions of clause-12 of the agreement, then, he would not be entitled for any interest on his deposit. Clause-30 of the agreement provides an arbitration clause as such the complaint be dismissed. The complainant has taken loan from India Infoline Housing Finance Limited on the basis of tripartite agreement dated 06.02.2016, and mortgaging the flat allotted to him. India Infoline Housing Finance Limited has not been impleaded party in this complaint. The complaint has no merit and is liable to be dismissed.
5. The complainant filed Rejoinder Reply, Affidavit of Evidence of Rajesh Kumar Aggarwal and documentary evidence. The opposite party filed Affidavit of Evidence of Rajesh Kumar and documentary evidence. Along with an Affidavit of Rajesh Kumar, sworn on 16.12.2023, the OP has filed copy of "occupation certificate" issued on 20.06.2017. Both the parties have filed their written arguments.
6. We have considered the arguments of the counsel for the parties and examined the record. Clause-11 of the agreement provides 36 months period from the date of actual start of construction of the tower concerned + grace period of six months for handing over possession. Clause-12 of the agreement provides for delay compensation and also gives right to the allottee to seek refund, after giving 90 days previous notice in case of delay in delivery of possession. None of the parties have given date of start of construction. Under clause-11 of the agreement, date of start of the construction is the date on which foundation of particular building in which the flat situates, is laid. The OP realized instalment of 'on completion of ground floor slab' on 24.04.2013 and realized total Rs.20013951/- till 01.08.2016. As such we take the date of start of construction as 01.04.2013. The period of 42 months expired in September, 2016. The OP obtained "occupation certificate" on 20.06.2017 and vide letter dated 29.06.2017, offered possession to the complainant with final demand of Rs.4595188/- (exclusive of stamp duty and registration charges). As such there was no unreasonable delay in offer of possession. Till the date of offer of possession, the complainant did not exercise his right to claim refund as per clause-12 of the agreement. Although the complainant alleged that on the date of offer of possession, the construction of the flat was incomplete but the complainant did not file any application for issue of local commission to decide this issue. Issue of "occupation certificate" is prima facie proof of completion of the construction of the building. Supreme Court in Ireo Grace Realtech Private Limited Vs. Abhishek Khanna, (2021) 3 SCC 241, held if after obtaining "occupation certificate", possession is offered, the home buyer is contractually obligated to take possession.
7. As the complainant refuses to take possession after offer of possession, then he will be liable for committing breach of contract and his earnest money is liable to be forfeited. Clause-5 of the agreement defines the 'booking amount' as earnest money, which is in higher side. Supreme Court in Fateh Chand Vs. Balkishan Das, AIR 1963 SC 1405, Maula Bux Vs. Union of India, (1969) 2 SCC 554 and Kailash Nath Associate Vs. Delhi Development Authority, (2015) 4 SCC 136, held that forfeiture of earnest money for breach of contract must be reasonable and if forfeiture is in the nature of penalty, then provisions of Section 74 of Contract Act, 1872 are attracted and the party so forfeiting must prove actual damage. After cancellation of allotment, the flat will remain with the opposite party as such there is hardly any actual damage. This Commission in CC/438/2019 Ramesh Malhotra Vs. EMAAR MGF Land Ltd. (decided on 29.06.2020), CC/3328/2017 Mrs. Prerana Banerjee Vs. Puri Construction Ltd. (decided on 07.02.2022 and Mr. Saurav Sanyal Vs. M/s. Ireao Grace Pvt. Ltd. (decided on 13.04.2022) held that 10% of basic sale price is reasonable amount to be forfeited as "earnest money".
O R D E R
In view of the aforesaid discussions, the complaint is partly allowed. The opposite Party is directed to refund entire amount deposited by the complainant with interest @9% per annum from the date of respective deposit till the date of refund, after forfeiting 10% of basic sale price, within a period of two months from the date of this judgment.
..................................................J RAM SURAT RAM MAURYA PRESIDING MEMBER ............................................. BHARATKUMAR PANDYA MEMBER