National Consumer Disputes Redressal
Kirti Singh vs Ireo Grace Realtech Pvt. Ltd. on 18 September, 2018
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 190 OF 2017 1. SURENDRA ARORA J-188, SAKET, NEW DELHI - 110 017. ...........Complainant(s) Versus 1. IREO GRACE REALTECH PVT. LTD. IREO CAMPUS, SEC 59, NEAR BEHRAMPUR, GURGAON - 122 101 ...........Opp.Party(s) CONSUMER CASE NO. 1802 OF 2017 WITH IA/3207/2018(Maintainability of complaint),IA/4290/2018(Condonation of Delay in Filing The Rejoinder),IA/12963/2017(Arbitration),IA/16062/2018(Discharge) 1. KIRTI SINGH 004, KAVERY APARTMENT, SUNRISE TOWN S-15/1, GHAUSABAD VARANASI U.P. - 221002 ...........Complainant(s) Versus 1. IREO GRACE REALTECH PVT. LTD. IREO CAMPUS, SEC 59, NEAR BEHRAMPUR, GURGAON - 122101 ...........Opp.Party(s) CONSUMER CASE NO. 192 OF 2017 WITH IA/3185/2018(Maintainability of complaint),IA/4728/2017(Arbitration),IA/16047/2018(Discharge),IA/17781/2017(Condonation of Delay in Filing The Rejoinder) 1. MOHIT ARORA N-46, OLD DOUBLE STOREY LAJPAT NAGAR IV, NEW DELHI - 110 024. ...........Complainant(s) Versus 1. IREO GRACE REALTECH PVT. LTD. IREO CAMPUS, SEC 59, NEAR BEHRAMPUR, GURGAON - 122 101 ...........Opp.Party(s) CONSUMER CASE NO. 697 OF 2017 WITH IA/3427/2017(Interim Relief),IA/16059/2018(Discharge) 1. MANU RIKHYE 3804, DLF City, Phase - IV, Gurgaon - 122 009. ...........Complainant(s) Versus 1. IREO GRACE REALTECH PVT. LTD. IREO Campus, Sec 59, Near Behrampur, Gurgaon - 122 101 ...........Opp.Party(s) BEFORE: HON'BLE MR. JUSTICE V.K. JAIN,PRESIDING MEMBER
For the Complainant : Mr. A.R. Takkar, Advocate Mr. Amarjeet Kumar, Advocate Ms. Shriya Takkar, Advocate For the Opp.Party : Mr. Sachin Datta, Sr. Advocate Mr. P. Vinay Kumar, Advocate Ms. Manmilan Sidhu, Advocate Ms. Manisha Gupta, Advocate Mr. Sagar, Advocate Dated : 18 Sep 2018 ORDER JUSTICE V.K.JAIN, PRESIDING MEMBER (ORAL)
The complainants in these four matters booked residential flats with the OP in a project namely 'The Corridors' which the OP was to develop in Sector-67 of Gurgaon. Pursuant to the applications submitted by them to the OP, different flats in the proposed project were allotted to them. In CC No.190 of 2017, Flat No. A1-06-603 for a consideration of Rs.1,90,41,143.32/- ; in CC No. 192 of 2017, Flat No.A1-01-104 for a consideration of Rs,1,90,20,992/-; in CC No. 697 of 2017, Flat No. D4-04-404 for a consideration of Rs.2,82,71,711.90/- and in CC No.1802 of 2017, Flat No. A2-05-504 for a consideration of Rs. 1,99,24,768.78/- were allotted to the complainants.
2. Clauses 43 & 44 of the key indicators from the terms and conditions of the Apartment Buyers Agreement, which formed Schedule-1 of the application form, read as under:
43. Subject to Force Majeure, as defined herein and further subject to the applicant having complied with all its obligations under the terms and conditions of this Agreement and the applicant not having defaulted under any provision(s) of this Agreement including but not limited to the timely payment of the total Sale Consideration, stamp duty and other charges prescribed by the Company, the Company proposes to offer the possession of the said Apartment to the applicant within a period of 42 months from the date of approval of the building plans and/or fulfillment of the pre-conditions imposed thereunder ("Commitment Period"). The applicant further agrees and understands that the Company shall additionally be entitled to a period of 180 (6 months) days ("Grace Period"), after the expiry of the said commitment period to allow for unforeseen delays beyond the reasonable control of the Company. Subject to the condition contained herein, if the Company fails to offer possession of the said apartment to the applicant by the end of the Grace Period, it shall be liable to pay to the applicant compensation calculated at the rate of Rs. 7.5/- (Rupees Seven and Fifty Paisa only) per sq. ft. of Super Area ("Delay Compensation") for every month of delay thereafter until the actual date fixed by the Company for offering the possession of the said such 'Delay Compensation' only at the time of 'Notice of Possession' or at the time of payment of the final installment, whichever is earlier.
44. Subject to the above, in the event of delay by the Company in offering the possession of the said Apartment beyond a period of 12 months from the end of the Grace Period (such month period hereinafter referred to as the 'Extended Delay Period' then the applicant shall become entitled to opt for termination of the Agreement and refund of the actual paid up installment paid by it against the said Apartment. It is clarified that the delay compensation calculated for the fixed period of 12 months only shall be paid by the Company alongwith the installments refundable under this Clause without any interest. This option may be exercised by the applicant only up till dispatch of the Notice of Possession by the Company to the Applicant. No other claim, whatsoever, monetary or otherwise shall lie against the Company nor be raised otherwise or in any other manner by the Applicant.
3. It would thus be seen that in terms of clause 43 the possession of the apartments ought to have been offered to the complainants within 48 months from the date of approval of the building plans, even if the benefit of the grace period of six months is given to the OP. Admittedly, initially, the building plans for the aforesaid project were approved on 23.07.2013. The possession of the apartments, complete in all respects, therefore, ought to have been delivered to the complainants by 23.07.2017.
4. The case of the complainants is that in fact the flats allotted to them did not even exist in the building plan approved on 23.07.2013. This of course is vehemently contested by the learned senior counsel for the OP who states on instructions that the allotted flats did exist in the building plan approved on 23.07.2013. However, considering that more than five years have already expired from the date on which the building plans were approved, I need not go into the question as to whether the flats allotted to the complainants did exist in the plan approved on 23.07.2013 or not.
5. It transpired during the course of arguments that the OP applied for revision of the plans and sought no objection to the said revision from the complainants. Admittedly, the complainants did not give any no objection to the proposed revision of the plans. The revised plans were approved on 10.07.2017 as is informed by the learned senior counsel for the OP.
6. The learned senior counsel for the OP concedes on instructions that the construction of the flats allotted to the flats in these matters is not complete and they are yet to apply for the requisite Occupancy Certificate. The learned counsel for the complainants submits in this regard that it will take 2-3 years for the OP to complete the construction of the said flats and the complainants are not at all willing to wait any more for the possession of the flats. The complainants insist on refund of the amount paid by them to the OP alongwith appropriate compensation.
7. The learned senior counsel for the OP has drawn my attention to clause 44 of the terms and conditions, extracted hereinabove and he submits that the aforesaid clause gives only a limited right to the complainants to terminate the agreement and seek refund of the amount paid by them. He also submits that in terms of the aforesaid clause, the contract could be terminated after a delay of at least 12 months, and only the delay compensation in terms of the agreement, for twelve months, is payable alongwith installments refundable to the allottee without any interest. However, in my view, since the OP failed to deliver possession of the allotted flats to the aforesaid complainants, it amounted to a deficiency in rendering service to them and therefore, this Commission is entitled to direct refund of the amount paid by them to the OP alongwith appropriate compensation. In my view, clause 44 which postpones the right of the flat buyer to terminate the agreement and seek compensation even after the grace period has expired, is wholly unfair besides being one sided and therefore, refund of the principal amount with appropriate compensation can be directed by this Commission despite clause 44 extracted hereinabove.
8. The learned senior counsel for the OP states that they are ready to accommodate these complainants in other towers where the Occupancy Certificate has been applied for and is expected to be received soon. However, the complainants are not willing to accept the said offer. Their counsel submits that there were supposed to be only two flats in the towers in which allotment was made to these complainants whereas there are more than two flats in the other towers. Be that as it may, considering the delay on the part of the OP, the complainants, in my view, cannot be compelled to accept the alternative offer made by the OP and they are entitled to seek refund of the amount paid by them alongwith appropriate compensation.
9. The learned counsel for the complainants states on instructions from the complainants that considering the interest rates on FDRs and in order to avoid further litigation in the matters, the complainants are restricting their claim to the refund of the principal amount paid by them to the OP alongwith compensation in the form of simple interest @ 10% per annum from the date of each payment till the date of refund.
10. For the reasons stated hereinabove, the complaints are disposed of with the following directions:
(i) The OP shall refund the entire principal amount received from the complainants to them alongwith compensation in the form of simple interest @ 10% per annum from the date of each payment till the date of refund.
(ii) The OP shall also pay a sum of Rs.25,000/- as the cost of litigation in each complaint.
(iii) The payments in terms of this order shall be made within three months from today.
......................J V.K. JAIN PRESIDING MEMBER