National Consumer Disputes Redressal
Sharad Chadha vs Ireo Grace Realtech Pvt. Ltd. on 21 June, 2022
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 2793 OF 2018 1. SHARAD CHADHA R/o 5/9, Jasmine Street, Vatika City, Sohna Road, Sector-49, Gurgaon - 120018 Haryana ...........Complainant(s) Versus 1. IREO GRACE REALTECH PVT. LTD. Ireo Campus, Sector-59, Near Behrampur, Gurugram-122101 Haryana ...........Opp.Party(s) BEFORE: HON'BLE MRS. JUSTICE DEEPA SHARMA,PRESIDING MEMBER HON'BLE MR. SUBHASH CHANDRA,MEMBER
For the Complainant : Ms Shriya Takkar, Advocate with Mr Tejasvi Chaudhary, 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 : 21 Jun 2022 ORDER PER MR SUBHASH CHANDRA, MEMBER
This is a complaint u/s 21 read with section 2 (g) and 2 (r) of the Consumer Protection Act, 1986 filed by the complainants seeking refund of the amount deposited in respect of the flat booked by them with the opposite parties in a project promoted and developed by the opposite parties along with penal interest and other compensation, alleging deficiency in service and unfair trade practice on account of the delay in handing over possession of the flat.
2. In brief, the facts of the case are that the complainants had booked a flat in the project "The Corridors" promoted and developed by the Opposite parties viz., located at Golf Course Extension Road, Sector 67 A, Gurgaon, Haryana on 16.03.2013 for their residential purpose. An allotment letter was issued by the opposite party to the complainants on 07.08.2013 allotting flat no. CD A2 - 04 - 402 in Tower A2, admeasuring 1892.23 sq ft in the above said project for a total sale consideration of Rs.2,01,86,365/-. The complainants deposited Rs.1,76,22,207/- towards this flat by way of several instalments. Thereafter, an Apartment Buyers Agreement was entered into between the complainants and the opposite party on 25.03.2014. As per clause 13.3 of the Apartment Buyers Agreement (in short 'the ABA'), the opposite party committed to offer possession of the flat within 42 months with an additional grace period of six months from the date of building plan approval, which was obtained on 23.07.2013, i.e., on or by 23.01.2017, failing which compensation at the rate of Rs.7.50 per sq foot was promised by the opposite party to the complainant. The complainant thereafter, raised certain objections that the agreement was fully one-sided and arbitrary terms which were not acceptable and never received any substantive reply from the opposite party who refused to change/modify the terms of ABA. Hence, the complainant has approached this Commission alleging deficiency in service and unfair trade practice in imposing entirely one sided conditions in the ABA that are in favour of the opposite party which the complainant as consumers was unable to contest. The complainant has sought full refund of the deposited amount and other reliefs as per the following prayer:
(i) Pass an order allowing the present complaint and directing the opposite party to refund the total amount deposited by the complainant along with interest @ 18% per annum from the date of payment till realisation;
(ii) Pass an order directing the opposite party to pay the compensation to the complainant towards mental harassment and agony to the tune of Rs.5,00,000/-;
(iii) Pass an order directing the opposite party to pay the complainant Rs.1,00,000/- on account of cost of litigation;
(iv) Pass an order directing the opposite party to pay the complainant Rs.10,00,000/- as compensation for deficiency in service and unfair trade practice; and
(v) Pass any such other/ further order(s) as this Hon'ble Commission may deem fit and proper in the facts and circumstances of the present case.
3. The opposite party has contested the complaint by way of reply and evidence by way of affidavit. The objections are both preliminary and on merits. It is contended that the complaint filed before this Commission was premature as the period of 48 months needs to be calculated with effect from 27.11.2014, the date on which the fire safety scheme was approved. He further states that this Commission has no jurisdiction under the CP Act, 1986 to amend/ modify/ re-write the terms of the agreement. It is averred that the allegations in the complaint are of a contractual nature and as such triable only in a civil court. It is also averred that the complainant is not a consumer since he had booked the flat for speculative gains. It has been submitted that under the CP Act 1986 compensation can only be as per Section 14 (1) (d) of the CP Act 1986, and that this section is not attracted in this case. The OP's case is also that the ABA related to an agreement to sell an apartment by the OP and no 'service' was to be rendered within the meaning of Section 2 (1) (o) of C P Act, 1986 to the complainant. Therefore, there was no deficiency in service involved.
4. 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 the grounds of non-availability of the senior counsel, even though the party was represented by a law firm with other advocates on record. None appeared even after a short adjournment to argue the case. Arguments were therefore heard on behalf of the complainant who submitted that the complaint was squarely covered by a judgement of the Hon'ble Apex Court. The reply and evidence filed by the opposite parties were therefore, considered as the final arguments.
5. 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 when 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 as laid down in Kolkata West International City Pvt., Ltd. Vs. Devasis Rudra, Civil Appeal No. 3182 of 2019 decided on 25.03.2019 that "it would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession" and that in view of an absence of an OC or offer of possession, the right of the complainant to refund with compensation cannot be denied.
6. The opposite party has contested the averments of the complainants on the grounds that the complainant had forfeited the earnest money as booking of the apartment had been cancelled due to default in payments; the complaint filed before this Commission was premature since the stipulated committed period was not yet over; and 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 had booked the flat for speculating in real estate. 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 27.01.2022 being available the complainant is obligated to take possession of the flat. It is also his contention that it is a settled proposition of law that anyone purchasing more than two apartments is not a consumer within the meaning of "consumer" under the CP Act, 1986 as was held in M/s TDI Infrastructure Pvt. Ltd. Vs Rajesh Jain (2016) CPJ 377 (NC) wherein it was held that a person who buys more than one flat without any reasonable explanation, will not fall under the definition of "consumer" and the purpose behind such purchase would deemed to be "commercial purpose" (under the provision of CP Act, 1986), unless the contrary is proved by the complainant with the help of cogent and plausible evidence.
7. The admitted facts of the case are that the opposite party had through clause 13.3 of the ABA committed to handing over possession after 42 months with further 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 2014-15. The opposite party also admits that the construction of Tower A2 in which the flat allotted to the complainant herein, viz., flat no 402 is located, has not been completed and that there was neither an OC in respect of this flat nor a letter offering possession till 24.12.2018. It is not denied by the opposite party that the period of 48 months from 27.11.2014 (including the grace period of 6 months), expired on 27.11.2018.
8. The opposite party has not been able to substantiate its averment that the complainant is not a 'consumer', the onus of which rests 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 argument 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). In view of the settled position in Abhishek Khanna (supra) relating to the same project, the opposite party cannot deny the complainants their right to a full refund or to be kept waiting indefinitely.
9. We have 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. As this is a covered case, we consider it appropriate to allow the complaint with the following directions:
(a) The opposite party shall refund the amount of Rs.1,76,22,207/- along with simple interest @ 9% per annum from 23.01.2017, the date of committed possession as per the ABA till the date of payment;
(b) Opposite party is directed to 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% per annum in case of default.
10. With these directions, the consumer complaint stands disposed of.
......................J DEEPA SHARMA PRESIDING MEMBER ...................... SUBHASH CHANDRA MEMBER