National Consumer Disputes Redressal
Mili Jain & 2 Ors. vs Wave City Centre Pvt. Ltd. on 29 October, 2021
Author: R.K. Agrawal
Bench: R.K. Agrawal
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 3304 OF 2017 1. MILI JAIN & 2 ORS. W/O SH. VIKAS JAIN,
R/O FLAT NO. 104/105,
IVORY COURT - 2, ESSEL TOWERS,
M.G. ROAD, GURUGAON - 122 002 2. MRS. ARCHANA JAIN W/O SH. SUSHIL CHANDRA JAIN,
R/O FLAT NO. 104/105, IVORY COURT - 2,
ESSEL TOWERS, M.G. ROAD, GURUGAON - 122 002 3. SH. VIKAS JAIN S/O SH. SUSHIL CHANDRA JAIN,
R/O FLAT NO. 104/105, IVORY COURT - 2,
ESSEL TOWERS, M.G. ROAD,
GURUGAON - 122 002 ...........Complainant(s) Versus 1. WAVE CITY CENTRE PVT. LTD. THROUGH ITS MANAGING DIRECTOR,
M-4, MEZZANINE FLOOR,
SOUTH EXTENSION, PART - 2, NEW DELHI - 110 049 ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT HON'BLE DR. S.M. KANTIKAR,MEMBER
For the Complainant : For the Complainants : Mr. Jalaj Agarwal, Advocate For the Opp.Party : For the Opposite Party : Ms. Shreya Nair, Advocate
Dated : 29 Oct 2021 ORDER
R.K. AGRAWAL, J., PRESIDENT
1.The present Complaint has been filed under Section 21 of the Consumer Protection Act, 1986 (in short "the Act") against M/s. Wave Mega City Centre Pvt. Ltd. (hereinafter referred to as "the Developer"), seeking the following reliefs:
"Direct the Opposite Party to deliver the possession of the flat i.e. Apartment No. 1603, having super area of 1548.63 sq. feet (approx. 143.87 sq. meter) on the 16th Floor of Block No. 2B, Block Name-Amore, Tower No. A, Serviced Residence No. 03, Noida along with interest at the rate of 18% per annum for the delay of the delivery of the flat till the final adjudication/ realization of the case and along with pendent lite and future interest at the same rate or such higher rate which this Hon'ble Commission may deemed fit in the interest of justice.
AND/OR Direct the Opposite Party to pay a sum of Rs.1,04,98,248/- (Rupees OneCrore Four Lakh Ninety Eight Thousand Two Hundred and Forty Eight Only) along with interest at the rate of 18% per annum from the date of deposit till the final adjudication of the case and along with pendent lite and future interest at the same rate or such higher rate which this Hon'ble Commission may deemed fit in the interest of justice.
Direct the Opposite Party to pay a sum of Rs.20,00,000/- (Rupees Twenty Lakh Only) each to the Complainants as compensation for harassment, inconvenience and mental agony caused by the Opposite Party.
That a sum of Rs.1,00,000/- (Rupees One Lakh Only) each be allowed as litigation costs.
Any other reliefs that this Hon'bledeems fit and properin favour of the Complainants in the circumstances of the case."
2. The brief facts as set out in the Complaint are that the Complainants lured by the eye catching advertisements and assurances given by the representatives of the Developer, has applied for the allotment of an Apartment in the Group Housing Complex called "Wave City Centre" situated at Plot No. CC-001, Sector 25A & 32, Noida, Uttar Pradesh, in the year 2012. Vide Allotment Letter dated 19.07.2012, the Complainants were allotted an Apartment No. 1603 having super area of 1548.63 sq. feet (approx. 143.87 sq. Meter) on the 16th Floor of Block No. 2B, Block Name-Amore, Tower No. A, Serviced Residence No. 3 in the aforesaid Group Housing Complex. An Allottee Arrangement was also executed between the parties on 19.07.2012 (for short, the "Agreement"). The total Sale Consideration for the Apartment was ₹1,10,23,922.66/-, which was exclusive of Preferential Location Charges, Lease Charges, Car Parking Charges etc. As per Clause 5.1 of the Agreement, the possession of the Apartment was to be delivered within 48 months from the date of the execution of the Agreement i.e. by July 2016 with a grace period of six months that means latest by December, 2016. It is further averred by the Complainants that they have been continuously following up with the Developer regarding the date of possession by visiting their office but the Developer has given fall assurances to the Complainants about the delivery of possession. Subsequently, the Complainants visited the site of construction and they were shocked to see that Tower No. A (Amore), wherein the Apartment was allotted to the Complainants was at an initial stage of construction. On making enquiries from the Technical Staff present at the site, the Complainants came to know that the completion of construction of Tower No. 1 (Amore) shall take at least another 2 to 3 years.
03. On 10.10.2016, the Complainants sent an email to the Developer asking about the exact date of delivery of possession but there was no response. Thereafter, the Complainants repeatedly visited the Registered Office of the Developer, but the Employees of the Developer were unable to give any reliable assurance with respect to completion of construction of the Project and their request of meeting with the Managing Director of the Developer was turned down. Finally, on 28.06.2017, Complainants sent another email to the Developer asking for refund of the amount paid by them along with interest. It is alleged by the Complainants that the Developer was diverting the funds of the "Wave City Centre" to other Projects and that the Developer has not cleared the dues of the Noida Authority.
04. It is alleged by the Complainants that despite collecting a hefty amount of ₹1,04,98,248/-from the Complainants i.e. more than 85% of the total Sale Consideration, the Developer has neither offered the possession of the Apartment to the Complainants till date nor has refunded the amount collected from them with interest. According to the Complainants, for default in making the payment of the demands raised by the Developer, they were being charged interest @ 18% p.a. as per Clause 4.2 of the Agreement and, therefore, keeping parity in question, the Developer is also liable to pay the same interest rate i.e. 18% p.a. on the deposited amount.
05. Vexed with the attitude of the Developer, alleging Unfair Trade Practice and deficiency in service, the Complainants approached this Commission seeking the aforesaid reliefs.
06. The Developer filed its Reply admitting to the booking, Allotment, Receipt of amount of ₹1,04,98,248/-, execution of the Agreement dated 19.07.2012 and to Clause 5.1, wherein they has agreed to deliver the possession of the allotted Apartment within 48 months from the date of execution of the Agreement with six months grace period and this Clause was subject to force majeure conditions.
07. It is averred by the Developer that the Complainants are not "Consumers" as defined under Section 2 (1) (d) of the Act and are speculative investors as they have invested in the present Project only to gain profits by resale of the Apartment booked by them. It is further stated that the Agreement contains Arbitration Clause, which clearly states that all disputes arising out of the said Agreement shall be referred to the Arbitration and the present dispute is already pending before the learned Arbitrator on the Arbitration invoked by the Developer and notice has already been issued from the office of the Learned Arbitrator to the Complainants, therefore it is prayed that the Complaint be dismissed and the Complainants be directed to appear before the Learned Arbitrator.
08. It is also contended that in terms of Clause 5.5 of the Agreement, the Complainants are only entitled to payment of "delay charges" @₹7.50/- per sq. ft. per month in case of delay in handing over the possession beyond the stipulated period of 48 month plus the grace period of 6 months due to reasons attributable to the Developer. The buyer can demand compensation on account of delay in handing over the Apartment, only if the buyer has made timely payments of the Sale Consideration. The Complainants are defaulter in making the timely payments of the demand raised by the Developer. Further, there was an Order dated 11.01.2013 passed by the National Green Tribunal refraining the Builders in Noida and Greater Noida from extracting ground water for the purpose of construction, due to which, there was acute shortage of water and other alternate sources available became overburdened, although the Developer was not using the ground water for its construction, the Order of the National Green Tribunal indirectly impacted the construction work of the Developer between January, 2013 and July, 2013; that in July, 2013, there was an agitation by the land owning farmers against the acquisition of land by the State Government and Agitators did not allow the workers to enter the construction site and also stopped the supply of construction material to the construction site, due to which the construction was at standstill from July, 2013 to September, 2013. The delay in handing over possession was for the reasons which were beyond their control and falls under force majeure conditions. The present Project is RERA registered and is in its final stage of construction. As per the RERA Registration Certificate, the possession of the Unit of the Complainants is expected to be delivered on or before 30.07.2019.
09. All other averments made in the Complaint have been specifically denied by the Developer and prayed dismissal of the Complaint with exemplary costs. The Complainants filed their Rejoinder denying all the rival contentions raised by the Developer in its Reply and reiterating the averments made in the Complaint.
10. We have heard the Learned Counsel for the parties at some length and also perused the material available on record as well as the written submissions filed by the Parties.
11. All the contentions raised by the Developer in the present case have already been dealt with by this Commission in the case of Radha Singh & Anr. Vs. M/s. Wave Megacity Centre Pvt. Ltd & Ant. - Consumer Case No. 3748 of 2017 decided on 14.11.2019. While dealing with the similar reasons taken by the same Opposite Parties for delay in handing over the possession in the afore referred Complaint, this Commission has observed as under:-
" The Complaint has been resisted by the Opposite Party. While admitting about booking of a residential flat by the Complainants; allotment of Flat No. 1703 to them in the Project in question; execution of the aforesaid Agreement between the parties; stipulation relating to handing over possession of the flat in question within a period of 48 months, apart from an extended period of 6 months, from the date of execution of the Agreement; payment of Rs.1,03,36,940/- made by the Complainants; and non-delivery of the flat in question by 13.01.2017, it is inter-alia, stated in the Written Version filed by the Opposite Party that the construction could not be completed within the stipulated period on account of reasons/factors attributable to force majeure, which were beyond its control. The said reasons, according to the Opposite Party, are as under:
Hon'ble National Green Tribunal (NGT), refraining extraction of ground water and resultant shortage of water; and Agitation by the farmers against the acquisition being done by the State Government.
Further, it is contended by the Opposite Party that as per Clause-13 of the Agreement, it was within its right to invoke Arbitration Clause and appoint the Sole Arbitrator; the Complainants had invested their money in purchasing the flat in question; there was delay on their part in making timely payments and, therefore, cannot demand compensation on account of delay in handing over possession and, if the compensation was to be given, they were entitled to delay charges @ Rs.7.50/- per sq. ft. per month; and due to factors attributable to force majeure the completion date of the Project was shown as 31.07.2019 at the time of registration under the Real Estate (Regulation and Development) Act, 2018 (hereinafter referred to as 'RERA').
I have heard the Learned Counsel for the Parties and perused the material available on record.
As far as the NGT order, refraining extraction of ground water and resultant shortage of water, as well as farmers' agitation is concerned, as admitted by the Opposite Party itself, on account of the NGT order the work at the project site was affected only between the period of January, 2013 and July, 2013 and farmers' agitation continued between the period July, 2013 to September, 2013. As the possession was required to be delivered in the year 2017, the said period of nine months, causing disturbance in the construction, could not have any meaningful disturbance in the construction work, which could have prevented the Opposite Party to complete the project and handover possession by the stipulated date, i.e. 13.01.2017. For the sake of argument, if it is assumed that the construction work was indeed stopped between the said period, this period could have been taken into consideration after the supposed date of delivery, i.e. 13.01.2017, and going by the same the possession could have been delivered by October, 2017. However, till date possession has not been given to the Complainants.
As regards Arbitration Clause, while the Written Version filed by the Opposite Party is silent with respect to the reasons, prompting it to invoke the said Clause, in view of the judgment of the Hon'ble Supreme Court in the case of Emaar MGF Land Ltd. Vs. Aftab Singh - I (2019) CPJ 5 (SC), jurisdiction of the Consumer Fora under the Consumer Protection Act, 1986, is not barred merely because there is a Clause of Arbitration in the Agreement entered into between the parties. Therefore, the submission of the Opposite Party that it would be in the interests of all the parties concerned that the Complaint be dismissed and the Complainants be directed to appear before the Arbitrator, cannot be acceded to. It appears that the said Clause was invoked by the Opposite Party on 30.06.2017 just to get over the delay in the project.
In support of their plea that the Complainants had invested their money in the Project in question, no supporting evidence/document has been produced by the Opposite Party and, therefore, this plea also does not hold water.
If there was any delay in making timely payments by the Complainants and that was a reason, which had an effect in completion of the Project, the Opposite Party could have cancelled the agreement and returned the money deposited by the Complainants but that was not so. Accordingly, the Opposite Party is estopped from raising the plea that there was delay on the part of the Complainants in making timely payments and they were not entitled to any compensation.
Further, if the submissions of the Opposite Party that if any compensation was to be given, the Complainants were entitled to delay charges @ Rs.7.50/- per sq. ft. per month, is accepted, it would amount to double jeopardy to the Complainants, who, despite payment of a considerable amount, on one hand are denied possession of the unit allotted despite lapse of stipulated period and on the other hand are forced to accept this meagre compensation. In our considered view, this submission is wholly unfair and cannot be accepted.
As far as the completion date of the Project, shown by the Opposite Party as 31.07.2019, at the time of registration under RERA, is concerned, we find that there was no reason attributable to force majeure clause, which could have prevented the Opposite Party from completing the project and hand over possession of the flat in question by the stipulated date in the year 2017. Accordingly, the possession of the flat in question cannot be delayed on the ground of this date shown at the time of registration under RERA.
In this view of the matter, it is evident that the possession of the flat in question, booked by the Complainants in the year 2012, which was to be handed over within a period of 48 months, apart from an extended grace period, has not yet been handed over by the Opposite Party, despite receiving a huge sum of Rs.1,03,36,940/- from them.
In view of the foregoing discussion as also decisions of the Hon'ble Supreme Court in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra [II (2019) CPJ 29 (SC)] and Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan [II (2019) CPJ 34 (SC)], which are somewhat similar matters relating to non-delivery of possession of the flat/house, the Complainants cannot be made to wait for an indefinite period and, therefore, they are entitled for refund of the amount deposited by them with interest. In my considered opinion, simple interest @ 10% p.a. on the amount of refund would meet the ends of justice. While arriving at this conclusion, I have also kept in mind the principles of restitutio in integrum, which provides for restoration of an affected party to the situation which would have prevailed had no wrong or injury been sustained.
Accordingly, the Complaint is disposed of with a direction that the Opposite Party shall refund the entire amount of ₹1,03,36,940/- collected from the Complainants, along with simple interest @ 10% p.a. from the date of respective payments till realization, within a period of six weeks from today, failing which the Opposite Party shall be liable to pay interest @ 12% p.a. instead of 10%. The Opposite Party shall also pay to the Complainants a sum of Rs.25,000/- as costs of litigation."
The same view was taken by this Commission in its earlier decision in the case of Ramkrishna Sharad Vs. M/s Wage Megacity Centre Pvt. Ltd. - Consumer Case No. 640 of 2018 decided on 20.09.2019.
12. In the present case also, we cannot ask the Complainant to wait indefinitely for possession of the Flat, as the construction is yet to be completed ever after almost 9 years has lapsed from the date of booking. Therefore, we are of the considered view that the Complainants are entitled for refund of the amount with reasonable interest. Accordingly, keeping in view the ratio laid down by the Hon'ble Supreme in DLF Homes Panchkula Pvt. Ltd. Vs. D.S. Dhanda - II (2019) CPJ 117 (SC) that compensation under multiple heads cannot be awarded, we partly allow the Complaint with a direction to the Developer to refund the entire deposited amount with simple interest in the form of compensation @ 9% per annum from the respective dates of deposit till payment, within a period of eight weeks from the date of passing of this Order failing which the amount shall attract interest @ 12% p.a. for the same period. The Complainants shall also be entitled for costs of ₹50,000/-.
......................J R.K. AGRAWAL PRESIDENT ...................... DR. S.M. KANTIKAR MEMBER