National Consumer Disputes Redressal
Suparna Nihal Singh vs M/S. Ireo Grace Realtech Pvt. Ltd. & Anr. on 14 June, 2022
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 1736 OF 2018 1. SUPARNA NIHAL SINGH R/o C-193, Defence Colony, New Delhi - 110024 ...........Complainant(s) Versus 1. M/S. IREO GRACE REALTECH PVT. LTD. & ANR. (Through its Director)
R/o C-4, 1st Floor, Malviya Nagar, South Delhi, New Delhi - 110017 2. M/S Precision Realtors Pvt. Ltd. (Through Its Directors)
R/o 305, 3rd Floor, Kanchan House Karampura Commercial Complex, New Delhi - 110015 ...........Opp.Party(s)
BEFORE: HON'BLE MRS. JUSTICE DEEPA SHARMA,PRESIDING MEMBER HON'BLE MR. SUBHASH CHANDRA,MEMBER
For the Complainant : Mr Nithin Chandran, Advocate with
Ms Sumbul Ismail, Advocate For the Opp.Party : Mr Sameer Chaudhary, Mr Rahul Ahuja,
Mr Gaurav Sharma, Mr Akarsh Sharma,
Advocates with Ms Ruchi Kumar Sr
Manager
Dated : 14 Jun 2022 ORDER
PER MR SUBHASH CHANDRA, MEMBER
1.This complaint is filed u/s 21 (a) (i) of the Consumer Protection Act, 1986 in respect of the flat booked by the complainant in a project promoted and developed by the opposite parties alleging deficiency in service and unfair trade practice resulting in delay in handing over possession of the flat and seeking refund of the amount deposited along with penal interest and other compensation.
2. The brief facts of the case are that the complainant had booked a flat in the project 'The Corridors' promoted and developed by the Opposite party viz. Ireo Grace Realtech Pvt. Ltd. located on Golf Course Extension Road, Sector 67 A, Gurgaon, Haryana on 28.03.2013 for his residential purpose for a total sale consideration of Rs. 1,84,44,568/- and deposited Rs. 16,00,000/- as booking amount with the opposite party. On subsequent dates further instalments were paid. An allotment letter was issued by the opposite party to the complainant on August 2013 allotting flat no. CD-A4-06-602, ad measuring 1726.91 sq ft. An Apartment Buyer's Agreement (in short 'the ABA') was entered into between the complainant and the opposite party on 02.06.2014. As per clause 13.3 of the ABA, the opposite party committed to offer possession of the flat within 42 months with an additional grace period of six months i.e. by February 2018 failing which compensation at the rate of Rs.7.50 per sq foot was promised by the opposite party to the complainant. However, possession of the said flat was not offered by the opposite party till the date of filing of the complaint. Hence, the complainant has approached this Commission alleging deficiency in service and unfair trade practice in not adhering to the committed date of handing over possession and imposing entirely one sided conditions in the ABA that are in favour of the opposite party which the complainant as a consumer was unable to contest and was compelled to accept.
3. It is the complainant's case that the opposite party has failed to deliver the possession of the allotted flat as was promised. The complainant has not averred that the flat was booked for the residential requirement of the complainant and her family. The opposite party had in August 2013 allotted flat number CD-A4-06-602 in the said project after 5 months. Thereafter, the opposite party executed the flat ABA after almost one and half years of booking in favour of the complainant on 02.06.2014. Thus, the complainant was coerced to accept the one-sided, arbitrary and unreasonable clauses of the agreement in its entirety, since any disagreement or cancellation would have led to forfeiture of Earnest Money (i.e. 20% of the total sale consideration of the flat). The complainant upon persuasion of the opposite party shifted her booking to another tower where the opposite party promised possession within the time promised. The complainant accordingly accepted transfer flat no. CD-B5-11-1104 in Tower B on 31.01.2017 for which the opposite party issued the letter in the name of complainant. Complainant has relied upon Satish Kumar Panday vs United Ltd. CC no. 427 of 2014 decided on 08.06.2015 where it was held that ".........it cannot be accepted that the opposite party could not have arranged adequate labour, either directly or through contractors/ sub-contractors, for timely completion of the project. ..........Therefore, I find no merit in the plea that the completion of the project was delayed due to non-availability of water, sand and bricks in adequate quantity.........."
4. The complainant is before us with the following prayer:
Direct the opposite party (s) jointly or severally, for an immediate 100% refund of the total amount of Rs.1,55,99,186/- paid by the complainant along with a penal interest of 18% per annum from the date of the receipt of the payments made to the opposite party (s);
Direct the opposite party (s) jointly and severally, to pay compensation of Rs.5,00,000/- to the complainant for mental agony, harassment, discomfort and undue hardships caused to the complainant as a result of the above acts and omissions on the part of the opposite party (s);
Direct the opposite party (s), jointly or severally, to pay a sum of Rs.1,00,000/- to the complainant as a whole, towards litigation costs; and That any other and further relief in favour of the complainant(s) as the Hon'ble Commission may deem fit and proper in the fact and circumstances of the case.
5. The opposite party has contested the complaint by way of Reply. It has opposed the complaint both by way of preliminary objections and on merits, stating that (i) this Commission lacks jurisdiction in the matter in view of the Real Estate (Regulation & Development) Act, 2016 (in short 'RERA') and the Haryana RERA having adjudicated in the matter; (ii) the complaint sought to amend/modify the terms of the contract between the parties which is precluded by the judgement of the Hon'ble Supreme Court in Bharti Knitting Co. Vs DHL Worldwide Courier (1996) 4 SCC 704; (iii) there was no promise of a 'service', therefore the averment of deficiency in service is not attracted and (iv) there was no misrepresentation by them which could be interpreted as unfair trade practice. It is contended that time was not of the essence in the ABA as only an endeavour to complete construction within 48 months had been assured. It is also argued that the complainant has not bought any goods and also not hired any services from the Opposite Party. It is also contended that as per clause 13.3 of the ABA even this was to be reckoned from the date of approval of building plans and preconditions therein and as the building plan was approved on 23.07.2013 and the Fire Safety Scheme was approved on 27.11.2014, the period of 48 months would conclude on 27.11.2018. It is submitted that an occupancy certificate had been obtained on 31.05.2019 for towers in Phase 1 and had been applied for in respect of towers A6-A10, B1-B4 and C3-C7. The further period of 12 months available under clause 13.4 and 13.5 of the ABA made the complaint premature. Lastly, the complainant was not a 'consumer' as he had not provided evidence of not having engaged in speculative purchase of the flat. The relief claimed was beyond the scope of Section 14 of the CP Act, 1986 and the complaint was filed maliciously with the intention of avoiding payment of further instalments.
6. Parties led their evidence. However, only the complainant filed a written synopsis of arguments. We have heard the learned counsel for the complainant and perused the records. The learned counsel for the opposite party after seeking adjournments on several occasions, again prayed for time on ground of non-availability of the senior counsel, even though the party is represented by a law firm with other advocates on record. None appeared even after a short adjournment on behalf of the complainant to argue the case. Learned counsel for the complainant submitted that the complaint was squarely covered by a judgement of the Hon'ble Apex Court. Arguments were therefore heard on behalf of the complainant. The reply filed by the opposite parties was considered as his final arguments.
7. Learned Counsel for the complainant has relied mainly on the judgement of the Hon'ble Supreme Court in Ireo Grace Realtech Pvt. Ltd., Vs Abhishek Khanna (2021) 3 SCC 241 dated 11.01.2021 which relates to the same project of the opposite party, i.e., 'The Corridors', Sector 67 - A Gurgaon, Haryana. It is his averment that as per this judgement, the Hon'ble Apex Court has taken cognizance of the fact that the project had both completed and incomplete/un-commenced towers in Phases I and II of the project. Based on the fact that the occupancy certificate from the statutory authority was available only in respect of certain towers on the date the case was filed and noting the fact that the builder-opposite party had not commenced/completed other towers in Phase II, the Apex Court had balanced the interests of both the consumer complainants and the builder-opposite parties by (a) equitably allocating the obligations for a full refund of payment to be made with penal interest to the allottees in the case of incomplete/un-commenced flats for the interregnum between the committed date and the date of making of the offer of possession by the opposite party and (b) the obligation to accept possession where the complainants had prayed for possession to be made with compensation for the delay in the case of flats/towers where construction was completed and occupancy certificate was available. In doing so the Hon'ble Apex Court reiterated the law with regard to the right of the consumer to seek refund in view of the inordinate delay on the part of the opposite party as laid down in Pioneer Urban land and Infrastructure Ltd., vs Govindan Raghavan in Civil Appeal no. 12238 of 2018 decided on 02.04.2019 (2019) 5 SCC 725. It also reaffirmed that "It would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession" as laid down in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, Civil Appeal No. 3182 of 2019 decided on 25.03.2019.
8. The opposite party has contested the averments of the complainants on the grounds that the complainant is not a 'consumer' as per section 2 (1) (d) of the CP Act, 1986 in view of the fact that he is a resident of Mumbai and was speculating in real estate. It is also argued that the complainant has not bought any "goods" and also not hired any "services" from Opposite Party. It is also argued that this Commission lacks jurisdiction to amend/ modify/ re-write the terms of the agreement. With regard to the argument that the case was covered by the judgement of the Hon'ble Supreme Court in Ireo Grace Realtech Pvt. Ltd., Vs Abhishek Khanna (supra), it is submitted by the opposite party that in view of an occupancy certificate dated 31.05.19 being available the complainant is obligated to take possession of the flat.
9. The admitted facts of the case are that the complainant had booked the flat in question with the opposite parties on 28.03.2013 for a sale consideration of Rs 1,84,44,568/-. Flat no CD-A4-06-602 was allotted to the complainant vide allotment letter dated 07.08.2013 issued by the opposite party. The opposite party offered to transfer the booking of unit bearing No.CD-B5-11-1104 in order to deliver the unit within the promised time frame. A total amount of Rs 1,55,99,186/- had been paid as per instalments based upon the Instalment Payment Plan by the complainant to the opposite party as on the date of the complaint. An ABA was entered into between the parties on 02.06.2014 wherein through clause 13.3 the opposite party had committed to 48 months as the date of handing over of the possession of the flat including a period of 6 months as the 'Grace Period'. It is also an admitted fact that the complainants had continued to make deposits of various instalments with the opposite party between the date of booking and the complaint and no dispute regarding the same was raised by the opposite party. The opposite party also admits that the construction of flat no. CD-B5-11-1104 in Tower B5 has not been completed as on date. Accordingly, neither an occupancy certificate nor a letter of offer of possession has been issued by the opposite party to the complainant.
10. Neither an OC in respect of this flat neither is available nor has a letter offering possession has been brought on record by the Opposite Party. It is contended by the complainant that the period of 48 months from 27.11.2014 including the grace period of 6 months expired on 27.11.2018. The opposite party, however, contends that the period of 48 months needs to be calculated with reference from the date of building permission (23.07.2013) and more specifically from 27.11.2014, which is the date of sanction of the Fire Safety Scheme approval. According to the opposite party the committed date should be reckoned as 27.11.2018 in view of the period of 48 months available to it. Thereafter, under clause 13.4 and 1.5 of the ABA, it is only after a further period of 12 months that the complainant is entitled to seek a refund.
11. It is the case of the complainant that the judgement in Abhishek Khanna (supra) distinguishes towers/residential units which stand completed and possess an occupancy certificate and for which possession has been offered from those towers/residential units which have either not been completed with an occupancy certificate/have not commenced construction. As this judgement is in respect of the very same project in which the complainants had booked flats, the same should apply in the instant case and the relief provided by the Apex Court in Abhishek Khanna (supra) should also be extended to the complainant. The opposite party has not been able to argue against this position or produce any judgement of the Hon'ble Supreme Court that modifies or negates it. The accepted position of law as per Pioneer Urban land and Infrastructure Ltd (supra) and Devasis Rudra (supra) have also not been assailed by the opposite party. In the present case, complainant had booked the flat in the project 'The Corridors' on 14.03.2013 and were assured possession as per the ABA on February 2018. However, the same has not been done even on date, i.e., after a lapse of approximately 5 months. No occupancy certificate has been obtained by the opposite party and no offer of possession made to the complainant. A sum of Rs 1,55,99,186/- amounting to nearly 85% of the sale consideration has been collected by the opposite party in the meanwhile which is a very substantial amount. This is indisputably a case of deficiency in service as well as an unfair trade practice on part of the opposite party.
12. The contentions of the opposite party of jurisdiction cannot be accepted. It is well settled that the enactment of the RERA 2016 does not preclude the seeking of relief under the CP Act, 1986 as held by this Commission in Anil Patni & Anr. vs. M/s Imperia Structure Ltd. (CC/3011/2017). It has also been held by the Hon'ble Apex Court in M/S Emaar MGF land Ltd. Vs. Aftab Singh I (2019) CPJ 5 (SC) that in a case of a complaint under the CP Act, 1986 the civil remedies before a civil court or through arbitration will not apply. The opposite party has not been able to substantiate its averment that the complainant is not a 'consumer', the onus of which is squarely upon him in terms of Kavita Ahuja Vs. Shipra Estate Ltd. & Jai Krishna Estate developers Pvt. Ltd. & Ors. I (2016) CPJ 31 (NC). The arguments that there was no promise of a service amounting to deficiency in service and misrepresentation constituting an unfair trade practice do not hold water as these issues stand settled in Ireo Grace Realtech Pvt. Ltd., Vs Abhishek Khanna (supra) as well as in Pioneer Urban Land Infrastructure Ltd., vs Govindan Raghavan (supra). The principle of equity of obligations has been laid down by the Hon'ble Supreme Court in Abhishek Khanna (supra) in the very same project of the opposite party. In view of the settled position, the opposite party cannot deny the complainants their right to a full refund or to be kept waiting indefinitely. In Abhishek Khanna (Supra) the Hon'ble Apex Court has held that the committed date has to be reckoned from the date of the sanction of building plans which includes the date of approval of the fire safety scheme. Admittedly, this scheme was approved on 27.11.2014. Therefore, the period of 48 months committed by the opposite party to offer possession after obtaining the occupation certificate should be taken as 27.11.2018. There is neither an occupancy certificate in respect of the flat available nor has an offer of possession been made.
13. We have also gone through the order of the Hon'ble Supreme Court in Ireo Grace Realtech Pvt. Ltd., (Supra) and we are satisfied that the current appeal/ complaint is covered by this judgment as it relates to the same project in which the complainant had booked its flat and the Hon'ble Supreme Court has ordered full refund with interest from the date of the promise of offer of possession till repayment.
14. Accordingly, we consider it appropriate to allow the complaint with the following directions:
(a) Opposite Party shall refund the amount of Rs.1,55,99,186/- along with simple interest @ 9% p.a. thereon with effect from February 2018, the date of committed possession till the date of payment;
(b) Opposite party shall pay litigation costs of Rs.50,000/- to the complainant;
(c) Order to be complied within 3 months of the receipt of the certified copy of the order;
(d) Opposite party shall be liable to pay a penal interest of 12% simple interest per annum in case of default.
15. With these directions, the consumer complaint stands disposed of.
......................J DEEPA SHARMA PRESIDING MEMBER ...................... SUBHASH CHANDRA MEMBER