National Consumer Disputes Redressal
Aneesh Chand Mathur & Anr. vs M/S. Prateek Realtors India Pvt. Ltd. on 13 October, 2022
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 2131 OF 2017 1. ANEESH CHAND MATHUR & ANR. S/O, KESHAVE CHAND MATHUR, R/O D-501, SAKETDHAM SOCIETY, SECTOR-61, NOIDA,U.P. 2. MRS. DEEPTI MATHUR W/O, ANEESH CHAND MATHUR, R/O D-501, SAKETDHAM SOCIETY, SECTOR-61, NOIDA, U.P. ...........Complainant(s) Versus 1. M/S. PRATEEK REALTORS INDIA PVT. LTD. (THROUGH ITS MDS)
REGISTERED OFFICE: AT G-50, LOWER GROUND FLOOR, LAJPAT NAGAR-III, DELHI, SOUTH DELHI. 2. Mr. Prashant Kumar Tiwari Director, (DIN N.00024438
G-50 Lower Ground Floor Lajpat Nagar-III Delhi South Delhi-110024 3. MS. Kalpana Tiwari Director, (DIN N.00165309
G-50 Lower Ground Floor Lajpat Nagar-III Delhi South Delhi-110024 ...........Opp.Party(s)
BEFORE: HON'BLE MR. SUBHASH CHANDRA,PRESIDING MEMBER
For the Complainant : Mr Vibhor Mathur, Advocate with
Mr Arun Pratap Singh, Advocate along with
Complainant - IN PERSON For the Opp.Party : Mr Sudeep Singh, Advocate
Dated : 13 Oct 2022 ORDER
PER MR SUBHASH CHANDRA
1.This complaint has been filed under section 12 read with section 21 of the Consumer Protection Act, 1986 (in short, the 'Act') alleging deficiency in service and unfair trade practice in respect of a flat booked by them with the opposite party viz., M/s Prateek Realtors India Pvt. Ltd., in a project promoted and developed by it and seeking refund of the amount deposited along with interest and other compensation.
2. Briefly, the facts of the case are that on 05.03.2013 the complainants had booked a three bedroom residential flat admeasuring 1762 sq ft in a group housing project 'Prateek Wisteria' in Sector 77, Noida (in short, the 'project') being developed and promoted by the opposite party. As per allotment letter dated 09.03.2013, flat no. D-1905, 18th Floor, Tower D admeasuring approx. 1385 sq ft (super area) (in short, the 'flat') was allotted at a sale consideration of Rs.77,48,500/-. A down payment plan was agreed upon and apart from the booking amount of Rs.5,50,000/- on 24.02.2013 and subsequent payments, a sum of Rs.61,64,918/- was paid on the basis of a housing loan from Axis Bank. A total of Rs.74,03,509/- or more than 95% of the sale consideration accordingly stood paid. Physical possession of the flat was promised by April 2014, or with grace period by July 2014. However, this was not done and the complainant made several anxious enquiries and visits to the site to no avail. The opposite party then issued a final demand letter on 22.01.2015 asking for payment of Rs.6,54,536/- stating that the flat was ready. As the amount asked for exceeded the agreed sale consideration, the complainant asked for the reasons for the same. He was also shocked to find, during a site visit, that the flat was still incomplete with no internal fittings.
3. According to the complainant the final demand letter was premature and they therefore asked for a Completion Certificate and other statutory permissions from the opposite party on 06.04.2015. As this was not provided, several reminders were sent which did not elicit any response from the opposite party. Finally, a scanned copy of an Occupation Certificate dated 09.09.2015 was sent by email on 20.01.2017 by the opposite party. No formal offer of possession was made by the opposite parties despite request by the complainants. Hence, a legal notice was sent on 05.05.2017 in response to which the opposite parties denied the claims vide letter dated 03.06.2017 on grounds of excessive rainfall and a restraint order of the National Green Tribunal (NGT) dated 28.10.2013 in MA No. 970 of 2013 pertaining to construction in Noida and Greater Noida. It is averred by the complainants that the delay in offer of possession by over 3 years constitutes deficiency in service. They are before this Commission with the following prayer:
(i) A sum of Rs.1,30,22,856/- which includes a sum of Rs.74,03,509/- paid by the complainants to the opposite parties and also includes a sum of Rs.56,19,347/- as interest calculated @ 18% for the period commencing from date the amounts were paid to 3rd July 2017 along with pendent lite and future interest @ 18% till the date the claimed amounts are finally repaid;
(ii) A sum of Rs.5,00,000/- as damages for causing undue hardship, harassment, mental agony and suffering and for losses suffered by the complainant due to negligent and deficiency services of the opposite party;
(iii) A sum of Rs.2,49,300/- as penal charges due to delay in offering possession, with effect from July 2014 upto June 2017 and calculated @ Rs.5 per square feet per month in accordance with clause 4 of the possession head of the allotment letter;
(iv) A sum of Rs.5,40,000/- as rental at the rate of Rs.15,000/- per month from July 2014 upto June 2017 as loss of rent due to delay in giving possession flat booked by the complainant along with further rental loss calculated at the rate of Rs.15,000/- per month;
(v) A sum of Rs.22,000/- towards expenses incurred by the complainant towards the issuance of the legal notice dated 11.04.2016;
(vi) A sum of Rs.5,00,000/- incurred by the complainant towards the cost of the present litigation. The opposite party is further liable to pay to the complainant the further expenses incurred by him towards rent during the pendency of the present petitioner;
(vii) Past, pendent lite and future interest@ 18% per annum on the amounts claimed herein above in prayer Clause No. (b) to (f); and
(viii) Any other and further order or orders as this Hon'ble Commission may deem fit and proper in the facts and circumstances of the case.
4. The complaint has been contested by the opposite party by way of a reply/written statement. The averments in the complaint have been denied and preliminary objection taken on the ground that the complainants are not bona fide consumers but investors who seek rent from the flat. Jurisdiction of this Commission is contested since it is alleged that the complaint is a suit for recovery which needs adjudication by an appropriate court. It is contended that the project is complete since 2014; however, delivery could not be offered due to the withholding of the Completion Certificate and Occupation Certificate by NOIDA authorities. It is contended that the complainants are attempting to avoid meeting their obligations through this complainant. It is claimed that the Occupation Certificate was applied for on 30/31.07.2014 and that as per section 4(5) of the UP Apartment Owners' Act, 2010, it is deemed to have been issued if no decision is taken within a period of 3 months. However, the opposite party waited for the Occupation Certificate which was delayed due to the NGT litigation. According to the opposite party, offer of possession was to have been made in April 2014 or in July 2014 allowing for 3 months of grace and was further extendable for another 3 months for circumstances beyond reasonable control of the opposite party, subject to force majeure. However, it is contended that this was tentative as per clause 3 relating to 'Possession' of the Agreement. Agitation of farmers against land acquisition during 2011-12 and associated legal issues impeded work according to the opposite party apart from the NGT's orders dated 28.10.2013 against all projects within a 10 km radius of the Okhla Bird Sanctuary in MA No. 970 of 2013 in Amit Kumar Vs. Union of India and Ors.
5. Parties led their evidence. Written synopses of arguments were also filed by both the parties. We have heard the learned counsel for the parties and given thoughtful consideration to the documents and evidence on record.
6. It is seen that offer of possession was promised by the opposite party within 36 months with grace period of 3 months along with completion of various facilities of club building, sports complex, park, community center, shopping arcade, park, etc. Opposite party no. 1 assured the complainant that the project was being developed through opposite party no. 5, a registered company, under an agreement dated 03.10.2009 read with addendums dated 22.01.2010 and 22.07.2010 and that in the eventuality the agreement between them was frustrated for any reason, opposite party no. 1 will refund the amount to the complainant. The final tranche of instalment was sought on 22.01.2015 by the opposite party towards costs incurred including security and maintenance charges. However, the complainants delayed making the payment. The Completion Certificate was issued on 09.09.2015. It is finally also contended that the complaint is barred by limitation since it is filed on 20.07.2017 whereas the final demand was dated 22.01.2015
7. The preliminary objection of the opposite party is that the complainant is not a 'consumer' but an investor. From the documents on record it is apparent that the complainant had obtained a housing loan for the flat from the Axis Bank. The objection needs to be considered in light of the Hon'ble Supreme Court's judgment in Laxmi Engineering Works Vs. PS G Industrial Institute Civil Appeal No of 4193 of 1995 (1995) 3 SCC 583 which defines 'commercial purpose' and this Commission's orders in in Kavita Ahuja vs Shipra Estates - I (2016) CPJ 31, wherein it was held that the onus of establishing that the complainant was dealing in real estate, i.e., in the purchase and sale of plots/ flats for commercial purposes to earn profits lies upon the opposite party. This Commission in Rajnish Bhardwaj and Ors vs M/s CHD Developers Ltd., and Ors in CC no. 3775 of 2017 decided on 26.11.2019, had also observed that:
"13. The first contention of the Learned Counsel for the Opposite Party that the Complainants are not "Consumers" and only "investors" is not supported by any documentary evidence. In a catena of judgments, this Commission has laid down that the onus of proof shifts to the Opposite Party to prove that the Complainant is "investor" and it is observed that the Opposite Party did not discharge their onus of proof regarding this aspect. Hence, we are of the considered view that the Complainants are "Consumers" as defined under Section 2 (1) (d) of the Consumer Protection Act, 1986".
The opposite party has not established this through evidence in the present case. Only a bald assertion is made. The contention of the opposite party therefore does not sustain.
8. The contention that this Commission lacks jurisdiction as the issue has to be decided by a civil court has also been considered. The issue of jurisdiction of consumer fora was put to rest by the Hon'ble Supreme Court in M/s Emaar MGF Land Limited Vs. Aftab Singh I (2019) CPJ 5 (SC) wherein it was held that even an arbitration clause in the Agreement does not bar the jurisdiction of the consumer fora to entertain the complaint. This contention is therefore not justified and is not accepted.
9. On the issue of force majeure relied upon by the opposite party, learned counsel for the complainant during arguments relied upon this Commission's orders in Swarn Talwar & 2 Ors. Vs. Unitech Ltd. in CC No 349 of 2014 dated 14.08.2015 wherein it was held, following this Commission's finding in Satish Kumar Pandey & Anr. Vs. Unitech Ltd. in CC No 427 of 2014 that disruption due to agitation by farmers cannot be justified since "no material has been placed on record by the OP that despite trying, it could not get labourers to complete the construction of the project within the time stipulated in the Buyers Agreement". It is also held that since ordinarily big builders contract/sub-contract construction work to contractors engaged by them, instead of employing their own labourers on a regular basis, and there is "no evidence of the OP having invited tenders for appointment of contractors/sub-contractors for executing the work at the site ... Therefore, 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." In the instant case, the assertion of the opposite party on this issue is merely a plain statement not supported by any evidence. This contention is therefore not justifiable.
10. Admittedly, there has been a delay in the execution of the project. In a catena of judgements, the Hon'ble Supreme Court and this Commission have upheld the right of a complainant to be compensated for inordinate delay in the offer of possession of a residential apartment booked by them due to inordinate delays by builders when the complainants are bona fide consumers who have duly paid the instalments and waited for the promise of allotment to fructify. Undeniably, the opposite party had indicated a period of 36 months with a 6 month period of grace from the date of the Agreement (14.02.2014), i.e. by 15.08.2017. Possession was, however, not offered till the filing of the complaint or on date. The intervening period of nearly 5 years is not a short period and the complainant is justified in seeking compensation for the same. The opposite party cannot expect the complainant to wait indefinitely for the possession to be offered. The Hon'ble Supreme Court in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra - II (2019) CPJ 29 SC has also laid down that "...it would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession...A buyer can be expected to wait for a reasonable period. A period of seven years is beyond what is reasonable".
In Fortune Infrastructure Vs Trevor D'Lima (2018) 5 SCC 442 the Hon'ble Supreme Court had held that 'a buyer cannot be expected to wait indefinitely for possession and in a case of an unreasonable delay in offering possession, the consumer cannot be compelled to accept possession at a belated stage and is entitled to seek refund of the amount paid with compensation'.
We are also guided by the law laid down by the Hon'ble Supreme Court in Fortune Infrastructure Vs Trevor D'Lima (supra) that in case of an unreasonable delay in offering possession, a buyer cannot be compelled to accept possession at a belated stage and is entitled to seek refund of the amount paid with compensation. As the project is admittedly not complete, the complainant's exercising of his option to seek a refund cannot be construed to be unjustified. The prayer of the complainant for refund with compensation in the form of interest is therefore justified.
11. The contentions of the opposite party that the delay is due to reasons beyond his control and therefore do not constitute negligence need consideration on the basis of the facts and evidence adduced. Shortage of labour for the project has not been established as discussed above by the opposite party. As regards the claim the NGT's orders impacted the progress of the project, it is apparent that the orders were not specifically against the opposite party. Moreover, the order of the NGT was dated 28.10.2013 and by the opposite party's own admission, the project was ready in April 2014 since the Occupation Certificate was applied for by him on 30/31.07.2014. The contentions that the project was delayed due to the reasons advanced citing force majeure do not appear credible. The opposite party could have proceeded on the basis of a deemed approval as per the UP Apartment Owners' Act, 2010 also, as mentioned by him. He, however, chose not to do so. Lastly, the letter for final demand dated 22.01.2015 when the occupation certificate was not available as it is admitted to have been received dated 09.09.2015 makes this letter of possession non est. The contention of the opposite party that the construction was complete by April 2014 and an offer of possession was made in January 2015 which was not accepted by the complainant makes the claim suspect and cannot be accepted. In any case, it was beyond the committed date of offer of possession as per the Agreement.
12. The opposite party has held the deposited money for nearly 5 years with the promise of offering a residential flat. Even after over 5 years, the opposite party is seeking indemnity from negligence or deficiency in service on his part on grounds of force majeure that are not supported by evidence on record. The issue of seeking a refund of instalments deposited with interest by complainants where there is inordinate delay by builders was considered by the Hon'ble Supreme Court in Pioneer Urban Land and Infrastructure Ltd Vs. Govindan Raghavan II (2019) CPJ 34 SC on 02.04.2019 and it was held that where the opposite party fails to meet his contractual obligations of offering possession of a flat beyond the committed date or a reasonable date thereafter, the allottee cannot be compelled to accept possession and will be justified in seeking refund with compensation. The contentions of the complainant seeking refund with compensation in the form of interest and cost of litigation are therefore justifiable and liable to succeed.
13. The complainant's claim of relief by way of compensation in the form of interest is valid. The interest claimed is 18% per annum. Compensation at the rate of 18%, however, would be excessive and not in line with prevailing market conditions. We would respectfully follow the Hon'ble Supreme Court in this regard in light of DLF Homes Panchkula Pvt. Ltd. Vs. D.S. Dhanda, Etc. in Civil Appeal No.4910-4941 of 2019, (2019) SCC OnLine SC 689 and consider that interest rate at 9% would be adequate to compensate complainant in the prevailing economic conditions.
14. I therefore find merit in the complaint and allow the same with the following directions:
(i) opposite party shall refund the entire amount deposited by the complainants with interest @ 9% on the deposited amount from the date of respective deposits till the date of realization;
(ii) opposite party shall pay litigation costs of Rs 50,000/- to the complainant
(ii) this order shall be complied within two months failing which penal interest of 12% shall be paid.
15. With these directions, the above consumer complaint stands disposed of.
...................... SUBHASH CHANDRA PRESIDING MEMBER