State Consumer Disputes Redressal Commission
Anmolpreet Singh Guron vs Bptp Ltd. And Others on 3 January, 2023
First Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
Consumer Complaint No.14 of 2021
Date of institution : 24.03.2021
Reserved on : 14.12.2022
Date of decision : 03.01.2023
Anmolpreet Singh Guron, S/o Baljinder Singh Guron, R/o Village
Jhakroudi, Tehsil Samrala, Ludhiana, Punjab-141114 through
authorized representative Shivjinder Kaur Guron R/o Flat No.06,
Ground Floor, Palm Groove, Orchid County, Ansal API, Sector-115,
Mohali, Punjab.
....Complainant
Versus
1. BPTP Ltd. through its Managing Director/Directors/Authorized
Representative.
Registered Office : M-11, Middle Circle, Connaught Circus, New
Delhi-110001, email [email protected], [email protected]
2. Countrywide Promoters Private Limited, through its Managing
Director/Directors/Authorized Representative.
Registered Office : M-11, Middle Circle, Connaught Circus, New
Delhi-110001, email ID - [email protected]
3. M/s Precision Infrastructure Pvt. Ltd., through its Managing
Director / Directors/ Authorized Representative.
Registered Office : M-11, Middle Circle, Connaught Circus, New
Delhi-110001, email ID - [email protected]
4. M/s Durzba Overseas Pvt. Ltd. through its Managing
Director/Directors/Authorized representative.
Registered Office : M-11, Middle Circle, Connaught Circus, New
Delhi-110001.
5. Visual Builders Pvt. Ltd., through it's Managing Director/Directors/
Authorized Representative.
Registered Office : M-11, Middle Circle, Connaught Circus, New
Delhi-110001, email ID - [email protected]
Consumer Complaint No.14 of 2021 2
6. Housing Development Finance Corporation Limited (HDFC)
through its Managing Director/ Directors/Authorized
Representative.
Registered Office : Raman House, 169, Backbay Reclamation,
Mumbai-400020.
Email : [email protected]
....Opposite Parties
Consumer Complaint under Section 47
of the Consumer Protection Act, 2019.
Quorum:-
Mr. Harinderpal Singh Mahal, Presiding Judicial Member
Mrs. Kiran Sibal, Member Argued By:-
For the complainant : Sh.Himanshu Raj, Advocate For opposite parties No.1to5: Sh.Hemant Saini, Advocate For opposite party No.6 : Ms.Neetu Singh, Advocate HARINDERPAL SINGH MAHAL, PRESIDING JUDICIAL MEMBER The present complainant-Anmolpreet Singh has filed this complaint through his authorized representative Ms.Shivjinder Kaur Guron, under Section 47 of the Consumer Protection Act, 2019, (in short "C.P. Act") seeking following directions to the opposite parties:-
(i) to direct opposite parties No.1 to 5 to refund the entire deposited amount against the consideration of said unit and admitted by opposite party No.1 along with interest at the rate of 18% per annum from the date of respective payment till actual realization;
(ii) to direct opposite parties No.1 to 5 to pay Rs.1,000/- per day to the complainant on account of deficiency in service Consumer Complaint No.14 of 2021 3 and unfair trade practices and harassment, mental agony for more than 3 years;
(iii) to direct opposite parties No.1 to 5 to pay Rs.1,000/- per day for causing physical harassment;
(iv) to direct opposite parties No.1 to 5 to pay Rs.4,00,000/- for hiring legal services; and
(v) any other relief which this Commission may deem fit and proper;
2. Brief facts culminating to the institution of the present complaint are that the complainant booked a flat for his personal use with opposite parties No.1 to 5 in their residential space under the name and style of 'Terra' situated in Sector 37-D, Gurugram, Haryana as they gave lucrative schemes/plan to allure general public for investment purpose. The opposite party No.1 is the seller and opposite party No.2 is the collaborating developer along with Land Owing Companies i.e. opposite parties No.3 to 5. On the assurances given by the opposite parties No.1 to 5 in their brochure regarding timely delivery of possession and other amenities, the complainant booked a unit in the said project on 21.08.2012 through an allotment application and an Allotment letter dated 07.12.2012 was issued to the complainant mentioning unit No.T-24-903, measuring 1691 sq.ft. as allotted to him. The Allotment Letter is Ex.C-4. As per the lucrative 'Possession Linked Plan', 80% of the payment was to be made within 36 months of the booking and rest 20% payment was to be made at the time of possession and the payment was made accordingly by the complainant on the assurances given by the opposite parties No.1 to 5 Consumer Complaint No.14 of 2021 4 for timely delivery of possession. Under this scheme, the complainant paid a sum of Rs.1,11,07,694.72p of the total sale consideration. The copy of account statement issued by opposite party No.1 is Ex.C-5.
3. The Flat Buyer's Agreement was also executed by the complainant with the opposite parties No.1 to 5 on 07.01.2013. As per the terms and conditions mentioned in the said agreement, the possession was to be delivered within 48 months i.e. 42+6 from the date of execution of the agreement i.e. upto 07.01.2017. The opposite parties No.1 to 5 failed to deliver the possession as per the agreed terms and conditions. On 12.04.2014, the complainant entered into a Tripartite Agreement with opposite parties No.1 & 6 in order to avail the loan for making the timely payments against the consideration of the said unit, on which the complainant is also paying the interest. A copy of the Tripartite agreement and Mortgage Deed is Ex.C-7 & Ex.C-
8. Despite that, the opposite parties kept on demanding extra amount from the complainant from time to time and a demand notice was issued to the complainant, which is Ex.C-9. The complainant deposited the amount under protest and receipts of the total amount is Ex.C-10 (colly). Some of the receipts were not given by opposite party No.1 for the reasons best known to him. The dealings of the opposite parties No. 1 to 5 after payment were very vague, resulting into harassment and mental agony to the complainant. The opposite parties No.1 to 5 are harassing the complainant by imposing unfair terms of the agreement on the complainant; meaning thereby unfair trade practice. After much awaiting for the delivery of the unit, the complainant purchased property in Bangalore, which is second home Consumer Complaint No.14 of 2021 5 of the complainant as he keep on visiting Bangalore for his business purposes. The present unit was purchased by the complainant for his personal use. The opposite parties No.1 to 5 are chronic litigants and serious defaulters and many cases have been decided against them by this Commission as well as by the Hon'ble National Commission, such as, Satpal Singh Bhatia Vs. B.P.T.P. Ltd.; C.C. No.509 of 2014.
4. The possession was to be delivered on 07.01.2017 but till date the complainant has not been given the possession of the flat, although assurance was given by opposite parties No. 1 to 5 to hand over the possession in December, 2020, but neither the possession was handed over nor money was refunded by them. The complaint has been filed within limitation period and this Commission has the territorial jurisdiction as the complainant is permanently residing in Ludhiana as per Aadhaar Card, Ex.C-1. Also, he is residing in Mohali. This Commission has the pecuniary jurisdiction because the money paid by the complainant is Rs.1,11,07,694.72. The complainant has a proper cause of action to file the present complaint.
5. It is pertinent to mention here that earlier a notice was given to opposite parties No.1 to 5 but they were proceeded against ex-parte and they approached the Hon'ble National Commission and an opportunity was granted to them and their written statement was taken on the record after orders of the Hon'ble National Commission dated 30.09.2022. The relevant portion of the order dated 30.09.2022 passed by the Hon'ble National Commission is reproduced hereunder:
"Accordingly, the Order dated 19.08.2021 passed by the State Commission is set aside and the Appellants are directed to appear before the State Commission on 12.10.2022, the date Consumer Complaint No.14 of 2021 6 already fixed before the State Commission, and take all such pleas which are available to them in accordance with law."
6. The opposite parties No.1 to 5 filed their joint written statement, whereas opposite party No.6 filed its separate written statement.
7. In the written statement filed by opposite parties No.1 to 5, it has been alleged that the complaint is not maintainable. In the preliminary objections, they objected that the complaint is liable to be dismissed as the matter requires to be referred to the arbitration as agreed by the parties, vide clause 17 of the Flat Buyers Agreement as the relationship between the complainant and the opposite parties No.1 to 5 are guided by terms and conditions of the agreement which was signed willingly and voluntarily. It is also mentioned in the said terms and conditions that the jurisdiction is lies only with the courts at Gurugram, Haryana. Ms.Shivjinder Kaur Guron has no authority to file the present complaint because no SPA in her favour. The complainant is not a consumer as per Section 2(7) of the Consumer Protection Act, 2019 because the money was invested by the complainant in the project 'Terra', situated in Sector 37-D, Gurugram for making the gains and profits from resale. The complainant is also indulged in 'Forum Hunting' because he earlier filed the complaint before the HRERA, vide Complaint No.2365 of 2020. The complaint contains complicated questions of facts and law which requires elaborate evidence and it has to be decided by the Civil Court. The complaint is barred by limitation. The complainant has approached this Court with unclean hands by not disclosing the relevant facts and documents. No cause of action accrued to the complainant to file the present complaint. The Consumer Complaint No.14 of 2021 7 amount claimed by the complainant is exorbitant, which is not tenable in the eyes of law. The complainant approached the opposite parties through a property dealer named M/s Ambrosia for booking a unit in the said project. Vide letter dated 07.12.2012, the complainant was allotted a unit bearing No.T24-903 tentatively having super built up area of 1,691 sq.ft. The complainant at the time of signing the agreement dated 07.01.2013 understood, agreed and accepted the terms and conditions contained therein and no objection was raised at any point of time. Earlier the complainant opted for Possession Linked Payment Plan but later, on the request of the complainant, the plan was changed to 'Construction Linked Payment Plan' and accordingly the demand was raised from time to time as per the progress of the work. All the demands were raised to the complainant as per the payment plan. It is further submitted that there is no deficiency in service on behalf of the opposite parties and there is also no delay of more than 3 years. It is further submitted that the proposed time for possession was 42 months from the date of sanction of the building plan or the execution of the Flat Buyers Agreement whichever is later along with 180 days of grace period on completion of other factors i.e. timely payments and other factors. The project was delayed due to the reasons beyond the control of the opposite parties and the proposed time lines of the possession have been diluted due to the defaulters in making the timely payments of the instalments by various allottees of the project. The project was launched in 2012 and there were 401 flats sold in the 'Terra' project, in which 78 bookings have since been cancelled and the number of customers defaulted in Consumer Complaint No.14 of 2021 8 making the payments. The project timelines for possession are based on the cash flow which was not contemplated by the opposite parties that allottees would default in making the payments. The project, in question, is completed in all respects and application for grant of 'Occupancy Certificate' has been applied on 18.01.2021 and the same is going to be issued to the opposite parties very soon. The opposite parties invested a huge amount and at this stage cancelling of allotment is not acceptable. The construction was affected due to the NGT order prohibited the construction of any kind in the entire National Capital Region. The construction was going in full swing and house was to be delivered in 2020, however due to the outbreak of COVID- 19 pandemic, everything went into lockdown which badly hit economy of the country and real estate business. The opposite parties being a customer-centric organization are updating the complainant with regard to the progress of the project from time to time through emails. On merits, they controverted the pleas of the complainant and reiterated the facts as taken in the preliminary objections, so there is no need to repeat the same.
8. Opposite party No.6 filed its written statement taking preliminary objections that the grievance of the complainant is only against opposite parties No.1 to 5 for not handing over the possession as per the Buyer Agreement and is seeking refund of the amount paid towards the unit. The complainant has not claimed anything against HDFC Ltd-opposite party No.6. The complainant is a borrower of opposite party No.6 and in the consequence of default in repayment of the loan are governed by the terms and conditions of the loan Consumer Complaint No.14 of 2021 9 agreement. In terms of the loan agreement, the borrower has an absolute liability to repay the loan to HDFC Ltd. and the said liability cannot be shifted to a third party in violation of the loan agreement. It is submitted that the rights of the parties to the present lis are governed by the Home Loan Agreement and in case of cancellation of the unit or in the contingency of termination of the Buyer Agreement, opposite party No.6 has the first charge/right to seek apportionment of its dues. As on 06.08.2021, an amount of Rs.44,87,515/- is outstanding and recoverable by opposite party No.6. On merits, all the averments as averred by the complainant in his complaint does not relate to opposite party No.6, however, it is admitted that a Tripartite Agreement dated 12.04.2014 was executed between the complainant and opposite party No.1 & 6.
9. The complainant filed replication to the written statement filed by the opposite parties No.1 to 5 denying all the allegations made in the written statement and reiterated the averments made in his consumer complaint.
10. In support of the averments made in the complaint, Ms.Shivjinder Kaur Guron, authorized representative has filed her affidavit dated 19.03.2021 along with photocopies of the documents i.e. Aadhaar Card dated 20.11.2020 as Ex.C-1, Certificate dated 15.02.2021 as Ex.C-2, Authority Letter dated 20.11.2020 as Ex.C-3, Allotment Letter dated 07.12.2012 as Ex.C-4, Statement of Account from 2019-2020 as Ex.C-5(colly), Flat Buyer's Agreement dated 07.01.2013 as Ex.C-6, Tripartite Agreement dated 12.04.2014 as Ex.C-7, Mortgage Deed dated NIL as Ex.C-8, Demand Notices from Consumer Complaint No.14 of 2021 10 2013-2016 as Ex.C-9(colly), Detail of amount paid from 2012-2019 as Ex.C-10, Judgment dated 12.05.2015 as Ex.C-11, Judgment as Ex.C- 12, Calculation Sheet as Ex.C-13, E-mail dated 18.11.2020 as Ex.C- 14 and Emails from HRERA as Ex.C-15.
11. On the other hand, opposite parties No.1 to 5 filed the affidavits of Sh.Inderjeet S/o Sh.Sukhpal Singh dated NIL and Sh.Rakesh Roshan S/o Late Shri Shyam Prasad, Authorized Representative, dated 12.10.2022, along with photocopies of documents i.e. judgment/orders dated 08.03.2021 and 27.04.2021 as Ex.R-1(colly), Provisional Allotment Letter dated 12.08.2012 as Ex.R-2 (colly), Allotment Letter dated 07.12.2012 as Ex.R/3, Floor Buyer's Agreement dated 07.01.2013 as Ex.R-4, Letters dated 28.11.2013 and receipts dated 19.10.2012 and 02.12.2013 as Ex.R-5 (colly), Letter dated 20.02.2014, reminder notices dated 10.03.2014, 11.04.2014 and 19.05.2014 and receipts dated 07.03.2014 and 24.05.2014 as Ex.R- 6(colly), Letter dated 01.10.2014, reminder notice dated 17.10.2014 and receipts dated 27.10.2014 as Ex.R-7 (colly), Letter dated 03.03.2015, reminder notices dated 20.03.2015, 21.04.2015 and 28.05.2015 and receipt dated 19.03.2015 as Ex.R-8 (colly), Letter dated 16.06.2015, reminder notices dated 03.07.2015, 05.08.2015 and 04.09.2015 and receipt dated 01.07.2015 as Ex.R-9(colly), Letter dated 28.09.2015, reminder notice dated 05.10.2015 and receipt dated 08.10.2015 as Ex.R-10(colly), Letter dated 11.01.2016 and receipt dated 27.01.2016 as Ex.R-11 (colly), Letter dated 11.02.2016 and receipt dated 29.02.2016 as Ex.R-12(colly), Letter dated 15.09.2016, reminder notice dated 05.10.2016 and receipt dated 05.10.2016 as Consumer Complaint No.14 of 2021 11 Ex.R-13(colly), Letter dated 10.11.2016 and receipt dated 04.12.2016 as Ex.R-14(colly), Letter dated 05.06.2018 and receipts dated 28.06.2018 as Ex.R-15(colly), Orders dated 18.11.2016, 09.11.2017 and Press Note dated 31.10.2018 and 25.10.2019 as Ex.R-16(colly), Photographs as Ex.R-17, Emails dated 16.03.2017, 24.04.2017, 24.05.2017, 23.06.2017, 28.07.2017, 21.08.2017, 11.12.2017, 26.03.2018, 09.04.2018, 08.05.2018, 15.06.2018, 09.09.2018, 07.11.2018, 19.12.2018, 24.01.2019, 24.02.2019, 22.03.2019, 19.04.2019, 15.05.2019, 01.11.2019, 18.11.2019, 23.11.2020 and 05.07.2021 as Ex.R-18(colly).
12. In evidence, opposite party No.6 filed the affidavit of Aditya Kochar, Assistant Manager, dated 06.08.2021 along with photocopies of documents i.e. Loan Agreement dated 21.05.2014 as Ex.OP-6/1, Account Statement 06.08.2021 as Ex.OP-6/2 and Tripartite Agreement dated 12.04.2014 as Ex.OP-6/3.
13. We have heard the contentions of the parties and have also gone through the complaint, written statement, evidence as well as written arguments filed by the parties.
14. During the course of arguments, preliminary objections were raised by the opposite parties No.1 to 5 in the written statement are not addressed by the learned counsel for the opposite parties. However, preliminary objections taken in the written statement are of legal consequence, which has to be dealt with separately one by one.
15. The foremost objection raised by opposite parties No.1 to 5 in the written statement are that since the parties are governed by the terms and conditions of the agreement and it is very well mentioned in Consumer Complaint No.14 of 2021 12 the agreement that the jurisdiction lies with the Courts at Guruguram, Haryana and the other Courts / Forums have no jurisdiction to try such complaints. The law is very clear on the point that no agreement can bar the statutory powers provided to a Forum privately recorded by the parties and as per Section 47 of the Act, the jurisdiction has to be ascertained by the complainant, where to file the complaint. Section 47 of the Act is as under:
"47. Jurisdiction of State Commission- (1) Subject to the other provisions of this Act, the State Commission shall have jurisdiction-
(a) to entertain-
(i) Complaints where the value of the goods or services
paid as consideration, exceeds rupees one crore, but does not exceed rupees ten crore:
Provided that where the Central Government deems it necessary so to do, it may prescribe such other value, as it deems fit;
(ii) Complaints against unfair contracts, where the value of goods or services paid as consideration does not exceed ten crore rupees;
(iii) appeals against the orders of any District Commission within the State; and
(b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any District Commission within the State, where it appears to the State Commission that such District Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested or has acted in exercise of its jurisdiction illegally or with material irregularity.
(2) The jurisdiction, powers and authority of the State Commission may be exercised by Benches thereof, and a Consumer Complaint No.14 of 2021 13 Bench may be constituted by the President with one or more members as the President may deem fit:
Provided that the senior-most member shall preside over the Bench.
(3) Where the members of a Bench differ in opinion on any point, the points shall be decided according to the opinion of the majority, if there is a majority, but if the members are equally divided, they shall state the point or points on which they differ, and make a reference to the President who shall either hear the point or points himself or refer the case for hearing on such point or points by one or more of the other members and such point or points shall be decided according to the opinion of the majority of the members who have heard the case, including those who first heard it: Provided that the President or the other members, as the case may be, shall give opinion on the point or points so referred within a period of one month from the date of such reference. (4) A complaint shall be instituted in a State Commission within the limits of whose jurisdiction,-- (a) the opposite party or each of the OPs, where there are more than one, at the time of the institution of the complaint, ordinarily resides or carries on business or has a branch office or personally works for gain;
or (b) any of the OPs, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office or personally works for gain, provided in such case, the permission of the State Commission is given; or (c) the cause of action, wholly or in part, arises; or
(d) the complainant resides or personally works for gain.
16. Further, it is objected by the opposite parties No.1 to 5 that the dispute between the parties is to be referred to the arbitrator for its adjudication and no other Forum is competent to decide the issue. So far as the objection of the opposite parties is that as per the arbitration Consumer Complaint No.14 of 2021 14 clause in the agreement, the matter between the parties is liable to be resolved through arbitration. So far as this objection is concerned, it is relevant to mention here that the Larger Bench of the Hon'ble National Commission, vide order dated 13.07.2017, passed in Consumer Complaint No.701 of 2015 titled as Aftab Singh v. EMAAR MGF Land Limited & Anr., also held that an Arbitration Clause in the aforestated kind of Agreements between the Complainants and the Builder cannot circumscribe the jurisdiction of a Consumer Fora, notwithstanding the amendments made to Section 8 of the Arbitration Act, 1996. The Civil Appeal No.(s) 23512-23513 of 2017 (M/s EMAAR MGF Land Limited & Anr. Vs. Aftab Singh) filed against the said order of the Hon'ble National Commission has also been dismissed by the Apex Court, vide order dated 13.02.2018. Review Petition (C) Nos. 2629-2630 of 2018 in Civil Appeal Nos. 23512-23513 of 2017 filed against the above said order dated 13.02.2018 was also dismissed by the Hon'ble Supreme Court, vide order dated 10.12.2018. Consequently, the existence of an Arbitration Clause in the agreement is not a bar to resolve this dispute by this Commission under the provisions of Act specifically under Section 100, being an additional remedy. Accordingly, this objection of opposite parties is also meritless, hence rejected.
17. The other objection raised by the opposite parties No.1 to 5 is that the present dispute involves the complicated questions of law, for which evidence is to be produced by the parties and such matter can only be decided by the Civil Court. On this issue, the Hon'ble Supreme Court in the case "Dr. J.J. Merchant & Ors. v. Shrinath Consumer Complaint No.14 of 2021 15 Chaturvedi", 2002 (2) CPC640, has held that under the Act, the Hon'ble National Commission is headed by a retired Judge of the Hon'ble Supreme Court and the State Commission is headed by a retired High Court Judge. Similarly, the District Forums, now "District Commissions", are headed by retired District/Additional District Session Judges or the persons of legal background having equivalent experience and, as such, they are competent to decide the complicated issues of law or facts. It is expected of them to decide the cases on merits, on the basis of prima facie evidence on the record.
18. Similarly, in Shiv Kumar Agarwal v. Arun Tonden & Anr., 2007 (2) CPC 129 (NC), it was observed by the Hon'ble National Commission in Para No.5 as follows:
5. We heard the learned Counsel for the petitioner and perused the material on record. Like before the State Commission, the learned Counsel for the petitioner argued before us that this case involves complicated questions of fact and law and will need expert evidence, which is not possible in the summary procedure adopted by the Consumer Fora. After seeing the complaint, written version as also the judgments of the Hon'ble Supreme Court in the case of Dr. J.J. Merchant and Ors. v. Shrinath Chaturvedi, and other catena of judgments, we are of the view that Consumer Forum, which is headed by Senior Judicial Officers, are capable of dealing with even complex questions.
The Consumer Protection Act, 1986 under Section 13 provides for calling for expert evidence, if necessary.
19. In view of the above law laid down the objection of the opposite parties No.1 to 5 that the matter is to be decided by the Civil Court is hereby rejected.
Consumer Complaint No.14 of 2021 16
20. The opposite parties No.1 to 5 have also raised another objection that the complainant has no cause of action accrued to the complainant to file the present complaint. With regard to the cause of action, it is relevant to mention that the complainant booked the unit, in question, for his own residential purpose and an agreement was executed between the parties on 07.01.2013, wherein the complainant was allotted unit No.T-24-903, in Sector 37-D, Gurugram, measuring 1691 sq.ft., vide Allotment Letter, Ex.C-4. As per agreement executed between the parties, the possession was to be delivered to the complainants within 42 months with an extended period of 6 months from the date of sanction of building plan or execution of Flat Buyer's Agreement, whichever is later.
21. Perusal of the clause 1.6 of the agreement says that the possession was to be given after sanctioning of building plan or execution of Flat Buyer's Agreement i.e. 42+6 months, subject to the timely payments. It is not disputed that the complainant has already paid approximate full amount, however, the complete possession has still not been offered to the complainant, whereas, the agreement was executed on January, 2013, as per which the possession of the flat was to be handed over to the complainant by January, 2017. Also, the opposite parties have failed to disclose the date of sanctioning of the building plan and accordingly, the period to deliver the possession start from the execution of the agreement is considered. Therefore, the plea taken by the opposite parties No.1 to 5 that the complainant has no cause of action to file the complaint against the opposite parties No.1 to 5 is falls to the ground.
Consumer Complaint No.14 of 2021 17
22. We also rely upon the judgment passed by the Hon'ble National Commission in "Navin Sharma (Dr. ) & others v. Unitech Reliable Projects Pvt. Ltd. & Anr." 2016(2) CLT 457 wherein it is held that unless or until the complainants get possession of the flats, they have got continuous cause of action. In para 8 of the said judgment it has been observed by the Hon'ble National Commission as under:-
"8. The first submission made by the counsel for the opposite party was that the case is barred by time. This argument was raised merely for the sake of cavil. It is now well settled that unless or until the complainants get the possession of the flats, they have got continuous cause of action. This view finds support from this authority reported in "Raghava Estates Ltd. v. Vishnupuram Colony Welfare Association" Special Leave to Appeal (Civil) No.35805 of 2012, decided on 07.12.2012."
23. With regard to the status of the consumer as the opposite parties No. 1 to 5 raised an objection that the complainant is not a 'consumer' as defined in Section 2(7) of the Act, 2019 and has purchased the unit for the purpose of gains and profits. In this regard, it is relevant to mention Section 2(7) of the Act, which is as under:
"2. Definition- In this Act, unless the context otherwise requires,-
(7) "consumer" means any person who-
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system or deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, Consumer Complaint No.14 of 2021 18 but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such service other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person, but does not include a person who avails of such service for any commercial purpose. Explanation - For the purpose of this clause,-
(a) the expression "commercial purpose" does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment;
(b) the expressions "buys any goods" and "hires or avails any services" includes offline or online transactions through electronic means or by teleshopping or direct selling or multi-level marketing."
24. The opposite parties have failed to produce any cogent and convincing evidence to prove that the unit purchased by the complainant is not for her own use and is for speculative purpose and mere assertion does not support the contention of the opposite parties.
25. We further fortified with the judgment passed by the Hon'ble National Commission in the case titled "Meghna Singh Khera and Ors. V. Unitech Ltd.", 1(2020) CPJ 93 (NC) and KAVITA AHUJA & OTHERS v. SHIPRA ESTATE LTD. & JAI KRISHNA STATE DEVELOPERS PVT. LTD. & OTHERS in Consumer Case No.137 of 2010, decided on 12.02.2015.
Consumer Complaint No.14 of 2021 19
26. In view of the above, the objection raised by the opposite parties that the complainant is not a consumer is hereby rejected and the complainant is held to be 'consumer' under the Act.
27. Further, in another objection raised by the opposite parties No.1 to 5 is that the complaint is barred by limitation. However, no specific reasoning has been given by the opposite parties No. 1 to 5 how the complaint is barred by limitation. Accordingly, this objection of the opposite parties is straightway rejected.
28. Further, learned counsel for the complainant orally as well as in the written arguments heavily asserted that 'Flat Buyers Agreement was loaded with unfair unilateral terms and liable to be termed as null and void'. He referred to different clauses mentioned in para 2 of the written arguments stating therein that Clause 1.6 of the agreement states that possession of the unit shall be delivered to the buyer within 42 months; Clause 1.8 states that additional period of 180 days after the expiry of commitment period for making offer of possession; Clause 4 says that respondent No.1 reserves the right to make alternations and variations in the lay out plan, building plan etc.; Clause 4.1(c) makes the complainant liable to pay any increase in total sale consideration; Clause 7.2 says that in default in making the payment of installment interest @18% p.a. compounded quarterly or at a higher rate will be charged and Clause 6 says that the purchaser/ complainant shall be entitled to compensation of Rs.5/- per sq.ft. per month calculated on Super Built Up Area.
29. He further referred to Section 49 as envisaged in the Consumer Protection Act, 2019 where the State Commission may also declare Consumer Complaint No.14 of 2021 20 any terms of contract, which is unfair to any consumer, to be null and void. No doubt, as per Section 49, the Commission has power to declare the terms and conditions of an agreement as null and void after enactment of the Consumer Protection Act, 2019. For that purpose, Section 49 of the Act is reproduced as under:
"49. Procedure applicable to State Commission- (1) The provisions relating to complaints under Sections 35, 36, 37, 38 and 39 shall, with such modifications as may be necessary, be applicable to the disposal of complaints by the State Commission.
(2) Without prejudice to the provisions of sub-section (1), the State Commission may also declare any terms of contract, which is unfair to any consumer, to be null and void."
30. Although, during the course of arguments, the moot point raised by the learned counsel for the complainant regarding the terms and conditions of the agreement.
31. Further, it is to be seen if he has pleaded and prayed for this relief in his complaint or not? For that purpose, we have thoroughly gone through the complaint filed by the complainant, where the complainant in para 9 of the complaint stated that "Flat Buyer's Agreement for the said flat, which was completely dominated by the terms and conditions favourable to Respondents No.1-5." They solitary gave reference to the fact that the terms and conditions of the agreement was illegal and vague. However, in whole of the complaint, no such pleadings have been made by the complainant and even in the prayer clause nothing has been prayed for termination of the agreement. Moreover, the present complaint has been instituted under Section 47 of the Act and as per Section 47, which has already Consumer Complaint No.14 of 2021 21 reproduced in para 15 above, there is no jurisdiction of the Commission to declare these terms and conditions as null and void and without any prayer, the arguments advances by the learned counsel for the complainant challenging the terms and conditions of the agreement are of no consequence and need no further discussions because the court cannot go beyond the pleadings of the complaint. Therefore, the contentions raised by the learned counsel for the complainant challenging the terms and conditions of the agreement is hereby rejected.
32. The present complaint is instituted by the complainant with the assertions that he booked a flat for his own use with the opposite parties No. 1 to 5 in their residential project launched under the name and style of 'Terra' situated in Sector 37-D, Gurugram, Haryana on the assurances given by opposite parties No.1 to 5 to deliver the flat, in question, on time as enunciated in the 'Flat Buyers Agreement' executed on 07.01.2013. As per the plan i.e. 'Possession Linked Plan' 80% payment was to be made within 36 months and 20% payment was to be made at the time of possession. The complainant paid Rs.1,11,07,694.72p. against the total sale consideration i.e. Rs.1,10,84,084.50p. As per Clause 1.6 of the Flat Buyers Agreement, dated 07.01.2013, Ex.C-6, the possession was to be delivered within 42 months and as per Clause 1.18 there is a grace period of 180 days. Clause 1.6 & 1.8 of the Buyers Agreement is reproduced hereunder:
"1.6 "Commitment Period" shall mean subject to, Force Majeure circumstances, intervention of statutory allottees and purchases) having timely complied with all its obligations, formalities or documentation, as prescribed/requested by Seller/Confirming Consumer Complaint No.14 of 2021 22 Party, under this Agreement and not being in default under any part of this Agreement, including but not limited to the timely payment of installments of the sale consideration as per the payment plan opted. Development Charges (DC) Stamp duty and other charges, the Seller/Confirming Party shall offer the possession of the Unit to the Purchaser(s) within a period of 42 months from the date of execution of the building plan or execution of Flat Buyer's Agreement, whichever is later."
XX XX XX XX XX XX
XX XX XX XX XX XX
1.8 "Grace Period" refers to the additional period of 180 days
after expiry of the Commitment Period for making an offer for possession of the Unit."
All these facts are admitted by both the parties.
33. Now, through this complaint, the complainant has asserted that the opposite parties No.1 to 5 failed to deliver the possession, as agreed upon between the parties, so he is entitled for the refund of the total deposited amount along with interest. Since the opposite parties No.1 to 5 have themselves violated the terms and conditions of the agreement and failed to deliver the possession, therefore, the complainant do not want to keep the flat with him as the very purpose for which it has been purchased is forfeited so he is demanding for the refund of the whole deposited amount along with interest.
34. Rebutting to the assertions of the complainant, it has been alleged in the written statement by the opposite parties No.1 to 5 in para 'M' that there is no deficiency in service on behalf of the opposite parties No.1 to 5 because the proposed timelines for possession being within 42 months from the date of sanction of the building plan or execution of the Flat Buyers Agreement, whichever is later, with 180 Consumer Complaint No.14 of 2021 23 days of grace period, subject to Force Majeure circumstances. Further, in para 'N', the opposite parties No.1 to 5 alleged that at the time of execution of the Buyers Agreement on 07.01.2013, it was in the knowledge of the complainant that possession may be delayed and could not be granted as per the commitments and he may be compensated under Clause 6 of the agreement. Further, in para 'P' of the written statement it is stated that the proposed timeline for possession was diluted due to defaults in making timely payments of instalments by various allottees of the project 'Terra', including the complainant.
35. These submissions and admissions are made by opposite parties No.1 to 5 on their own in the written statement and also has contended by learned counsel for the opposite parties No.1 to 5 that there was a delay in delivering the possession due to unavoidable circumstances as the payments were not made properly by the other allottees as per the schedule and since the construction could not be completed in time so the commitment made by opposite parties No.1 to 5 in the agreement could not be fulfilled. These submissions of opposite parties No.1 to 5 shows that till date the possession has not been delivered to the complainant. Although, at the time of arguments, learned counsel for the opposite parties No.1 to 5 pressed that they are ready with the possession and the complainant is bound to receive the possession instead of asking refund of the amount. This contention of the opposite parties No.1 to 5 is not tenable in the eyes of law because they themselves faulted in fulfilling the commitments regarding the delivery of possession in time and at this stage they Consumer Complaint No.14 of 2021 24 cannot compel the complainant to receive the possession, for which he waited for a long period of more than 4 years, from the expected date of possession as the law is very clear on this point also.
36. We rely upon the judgment of the Hon'ble Supreme Court passed in the case "Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra", II (2019) CPJ 29 (SC), wherein the Hon'ble Apex Court has clearly laid down that a flat purchaser cannot be made to wait indefinitely for seeking possession.
37. Also, the Hon'ble National Commission in the case titled as Brig Ajay Raina (Retd.) and another Vs. M/s Unitech Limited, Consumer Complaint No. 59 of 2016, decided on 24.05.2016, has held as under:-
"Further, even if, it is assumed for the sake of arguments, that offer of possession, was made to the complainants, in July 2015 i.e. after a delay of about three years, from the stipulated date, even then, it is not obligatory upon the complainants to accept the same."
38. Although, it has been alleged by the opposite parties No.1 to 5 that they got the Completion Certificate in time, to which learned counsel for the complainant referred to document 'Minutes of Meeting' of Sanctioning Authority, held on 17.02.2022, wherein in Column No.3 under 'Comments of the office', it has been specifically mentioned that 'The plans have been uploaded on the website of the colonizer; copy of the screenshot of the same is enclosed herewith. The same was cross-checked during the hearing as well. However, the objectors were again requested to mutually nominate few residents, who can Consumer Complaint No.14 of 2021 25 visit the STP, Gurugram office and peruse the plans available in this office, but, none of the objector/allottees visited the office.
39. Further in Column No.6, under Comments, it has been mentioned that 'The in-principal approval has been granted only for the purpose of inviting objections from the allottees and no possession or registration of conveyance deed is permitted on the basis of the same."
40. This shows that till 17.02.2022, the Completion Certificate is not available with opposite parties No.1 to 5, which is a clear violation to the provisions of Punjab Urban Planning & Development Authority (in short 'PAPRA') which is governed for the promoters and builders. Section 3 of the PAPRA Act envisages that the builder shall 'make full and true disclosure of the nature of his title to the land on which such colony is developed or such building is constructed or is to be constructed.. and to make full and true disclosure of all encumbrances on such land, including any right, title, interest or claim of any party in or over such land.
41. As per Section 4 of PAPRA, 'no promoter shall issue an advertisement or prospectus, offering for sale any apartment or plot, or inviting persons who intend to take such apartments or plots to make advances or deposits, unless the promoter holds a certificate of registration..'
42. Further, as per Section 5 of PAPRA, '..promoter, who desires to develop a land into a colony, shall make an application in the prescribed form alongwith the prescribed information and with the Consumer Complaint No.14 of 2021 26 prescribed fee to the competent authority for grant of permission for the same and separate permission will be necessary for each colony.'
43. As per Section 9 of PAPRA, 'the promoter shall maintain a separate account in any scheduled bank of sums taken by him from the persons intending to take or who have taken apartments or plots, as advance, towards sale price or for any other purpose, or deposit, including any sum so taken towards the share capital for the formation of a co-operative society or a company, or towards the outgoings (including ground rent, if any, municipal or other local taxes, charges for water or electricity, revenue assessment, interest on mortgages or other encumbrances, if any, stamp duty and registration fee for the agreement of sale and the conveyance); and the promoter shall hold the said moneys for the purpose for which they were given and shall disburse the moneys for those purposes including for the construction of apartments and, in the case of colonies, for meeting the cost of development works, and shall on demand, in writing, by the competent authority make full and true disclosure of all transactions in respect of that account and shall not utilize for any other purpose the amounts so collected for a particular purpose.' As per these provisions of PAPRA Act, there are certain formalities which are to be completed by the builder at the time of delivery of possession which has not been meted out by the opposite parties No.1 to 5 and are offering the possession even at the belated stage. Almost full payment was made by the complainant but despite that the delivery of possession was delayed unnecessarily. The act and conduct on behalf of the opposite parties No.1 to 5 is a clear case of violation to the terms and conditions of the Consumer Complaint No.14 of 2021 27 agreement which were to be complied with by opposite parties No.1 to 5 and there is deception and deficiency in service.
44. As discussed above, the opposite parties failed to deliver possession of the unit, in question, by the stipulated date despite receiving the substantial amount. The complainant cannot be made to wait for an indefinite period, for delivery of possession of the unit purchased by him. Furthermore, non-delivery of legal possession of the unit, in question, by the stipulated date, is a material violation on the part of the opposite parties No.1 to 5 and amounts to deficiency in providing service and adoption of unfair trade practice. It is settled law that when there is a material violation on the part of the builder, in not handing over possession of unit by the stipulated date, the purchaser is not bound to accept the offer, even if the same is made at a belated stage and on the other hand, can seek refund of amount paid.
45. Now, the issue is to decide how much amount is paid by the complainant, as the complainant in his complaint alleged that he has deposited a sum of Rs.1,11,07,694.72p, however, the opposite parties No.1 to 5 denied this fact in their written statement. As per Ex.C-10 (colly) i.e. receipts, the complainant has deposited a sum of Rs.1,10,64,086.00p. However, the complainant in his complaint has alleged that the opposite parties No.1 to 5 have not issued some receipts to him against the deposited amount. As per statement of account dated 29.10.2020, Ex.C-5(colly) issued by opposite parties No.1 to 5, it is clearly mentioned that a sum of Rs.1,11,07,694.72 has been received by opposite parties No. 1 to 5 against the demanded amount of Rs.1,11,13,709.00 and Rs.6014.28p is balance towards the Consumer Complaint No.14 of 2021 28 complainant. Accordingly, in view of the statement of account, Ex.C- 5(colly), the paid amount considered as Rs.1,11,07,694.72p.
46. So far as opposite party No.6 is concerned, no relief has been sought by the complainant against it and opposite party No.6 has just sanctioned the loan after verifying all the documents of the complainant. However, as per the Tripartite Agreement executed between the parties, the first charge/right to seek apportionment of its dues is of opposite party No.6 in case of cancellation of the unit or in the contingency of termination of "Allotment of Unit". Accordingly, the complaint filed against opposite party No.6 is liable to be dismissed against it.
47. In view of the above discussions, the complaint filed by the complainant is allowed against opposite parties No.1 to 5 and dismissed qua opposite party No.6. The opposite parties No.1 to 5 are directed as under:
i) to refund Rs.1,11,07,694.72p along with interest at the rate of 9% per annum, as per Rule 17 of PAPRA, from the respective dates of deposit till realization;
It is made clear that firstly the outstanding amount qua the loan advanced by opposite party No.6-HDFC Ltd. shall be refunded by opposite parties No.1 to 5, as per terms and conditions of Tripartite Agreement, Ex.OP-6/3, and thereafter, the remaining amount, if any, shall be refunded to the complainant;
ii) to pay Rs.1,00,000/- as compensation on account of mental
agony and harassment; and
Consumer Complaint No.14 of 2021 29
iii) to pay Rs.50,000/- as litigation expenses.
48. The opposite parties No.1 to 5 shall comply with the above said directions within a period of 45 days from the receipt of the certified copy of the order.
49. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
50. In view of the decision of the complaint, the application pending, if any, is dismissed being infructuous.
(HARINDERPAL SINGH MAHAL) PRESIDING JUDICIAL MEMBER (KIRAN SIBAL) MEMBER January 03, 2023 parmod