National Consumer Disputes Redressal
Pradeep Kumar Gupta vs Ireo Grace Realtech Pvt. Ltd. on 10 January, 2019
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 189 OF 2017 1. PRADEEP KUMAR GUPTA MD-20, VISHAKHA ENCLAVE, PITAMPURA, NEW DELHI-110034 ...........Complainant(s) Versus 1. IREO GRACE REALTECH PVT. LTD. IREO CAMPUS, SEC-59, NEAR BEHRAMPUR, GURGAON-122101 ...........Opp.Party(s) CONSUMER CASE NO. 217 OF 2017 1. MONIKA KHULLAR & ANR. A-21, 1st Floor, Sivalik, Malviya Nagar, New Delhi - 110 017. 2. Mr. Rajneesh Khullar, A-21, 1st Floor, Sivalik, Malviya Nagar, New Delhi - 110 017. ...........Complainant(s) Versus 1. IREO GRACE REALTECH PVT. LTD. Ireo Campus, Sec 59, Near Behrampur, Gurgaon - 122101 ...........Opp.Party(s) CONSUMER CASE NO. 218 OF 2017 1. NEELAM MITTAL & ANR. W/o. Sh. Raghvendra Mittal, R/o. House NO. 71, Sector 16-A, Faridabad - 121 002. Haryana. 2. Mrs. Suman Arora W/o. Sh. N.K. Arora, R/o. House No. 673, Sector 15, Fariabad - 121 007 Haryana. ...........Complainant(s) Versus 1. IREO GRACE REALTECH PVT. LTD. IREO Campus, Sector 59, Near Behrampur, Gurgaon - 122 101. ...........Opp.Party(s) CONSUMER CASE NO. 219 OF 2017 1. SHILADITYA GANGOPADHYAY FLAT NO. 610, IVORY COURT-II, ESSEL TOWER, MEHRAULI- GURGAON, ROAD, NEAR IFFCO CHOWK, GURGAON-122001 ...........Complainant(s) Versus 1. IREO GRACE REALTECH PVT. LTD. IREO CAMPUS, SEC.59, NEAR BEHRAMPUR, GURGAON-122101 ...........Opp.Party(s) CONSUMER CASE NO. 520 OF 2017 1. KARTIK AHUJA & ANR. H. NO.194, SECTOR-29. NOIDA-203303 U.P. 2. MR. SURAJ KUMAR AHUJA H. NO.194, SECTOR-29. NOIDA-203303 U.P. ...........Complainant(s) Versus 1. IREO GRACE REALTECH PVT. LTD. IREO CAMPUS, SECTOR-59, NEAR BEHRAMPUR. GURGAON-122101 ...........Opp.Party(s) CONSUMER CASE NO. 521 OF 2017 1. GAGAN PREET SINGH KOCHAR & ANR. 27D, Pocket IV, Mayur Vihar Phase-I, delhi 110091 2. Mrs. Harpreet Kaur Kochar W/o Sh. Gagan Preet Singh Kochar, 27D, Pocket IV, Mayur Vihar Phase-I Delhi 110091 ...........Complainant(s) Versus 1. IREO GRACE REALTECH PVT. LTD. IREO Campus, Sec 59, Near Behrampur, Gurgaon 122101 ...........Opp.Party(s) CONSUMER CASE NO. 522 OF 2017 1. RAMAN NARULA H. NO.B-381, GROUND FLOOR, NEW FRIENDS COLONY. NEW DELHI-110065 ...........Complainant(s) Versus 1. IREO GRACE REALTECH PVT. LTD. IREO CAMPUS, SEC-59, NEAR BEHRAMPUR. GURGAON-122101 ...........Opp.Party(s) CONSUMER CASE NO. 523 OF 2017 1. PRIYANKA GUPTA B-3, 802, Aloha, Sector 57 Gurgaon Haryana ...........Complainant(s) Versus 1. IREO GRACE REALTECH PVT. LTD. IREO Campus, Sec 59, Near Behrampur Gurgaon 122101 ...........Opp.Party(s) CONSUMER CASE NO. 524 OF 2017 1. RAJ SETHI S-2, NITIN APARTMENTS, 17, BELA ROAD, CIVIL LINES NEW DELHI-110054 ...........Complainant(s) Versus 1. IREO GRACE REALTECH PVT. LTD. IREO CAMPUS, SECTOR-59, NEAR BEHRAMPUR GURGAON-122101 ...........Opp.Party(s) CONSUMER CASE NO. 526 OF 2017 1. KUNAL WADHWA A-171, BELVEDERE PARK, DLF PHASE-III. GURGAON-122001 ...........Complainant(s) Versus 1. IREO GRACE REALTECH PVT. LTD. IREO CAMPUS, SEC-59, NEAR BEHRAMPUR. GURGAON-122101 ...........Opp.Party(s) BEFORE: HON'BLE MR. JUSTICE V.K. JAIN,PRESIDING MEMBER
For the Complainant : Mr. A.R. Takkar, Advocate Mr. Amarjeet Kumar, Advocate Mr. Ajay Bansal, Advocate Ms. Shriya Takkar, Advocate For the Opp.Party : Mr. P. Vinay Kumar, Advocate Ms. Manisha Gupta, Advocate Ms. Ruchi Kumar, Legal Manager(IREO) Dated : 10 Jan 2019 ORDER JUDEGEMENT JUSTICE V.K. JAIN (ORAL)
The complainant in CC/189/2017, namely, Pradeep Kumar Gupta booked a residential flat with the OP in a project namely 'The Corridors', which the OP was to develop in Sector-67A of Gurgaon. Apartment No. A1-06-601 in Tower A1 of the aforesaid project was allotted to him for a consideration of Rs.19920649/- and he executed a Buyers Agreement with the OP on 21.10.2014. The grievance of the complainant is that the possession of the flat has not been offered to him despite he having already paid a sum of Rs.6122733/- to the OP.
The complainants in CC/217/2017 also booked a residential flat with the opposite party in the said project and flat No. A2-11-1102 in Tower A2 was allotted to them for a consideration of Rs.20186365/- and they executed a Buyers Agreement with the OP on 2.6.2014. The grievance of the complainants is that the possession of the flat has not been offered to them despite they having already paid a sum of Rs.6205441/- to the OP.
The complainants in CC/218/2017 also booked a residential flat with the opposite party in the said project and flat No. A1-08-802 in Tower A1 was allotted to them for a consideration of Rs.19920649/- and they executed a Buyers Agreement with the OP on 3.9.2014. The complainants claim to have already made the payment of Rs.6122738/-to the opposite party but the possession of the flat has not been offered to them.
The complainant in CC/219/2017, namely, Shailaditya Gangopadhyay also booked a residential flat with the opposite party in the above-said project and flat No. A1-04-401 in Tower A1 was allotted to him for a consideration of Rs.20271389.78/- and he executed a Buyers Agreement with the OP on 10.7.2014. The grievance of the complainant is that the possession of the flat has not been offered to him despite he having already paid a sum of Rs.6209828/- to the OP.
The complainants in CC/520/2017, also booked a residential flat with the opposite party in the said project and flat No. A2-03-302 in Tower A2 was allotted to them for a consideration of Rs.20186365/- and they executed a Buyers Agreement with the OP on 28.5.2014. Their grievance is that the possession of the flat has not been offered to them despite they having already paid a sum of Rs.6205440/- to the OP.
The complainants in CC/521/2017 also booked a residential flat with the opposite party in the above-said project and flat No. A1-12-1201 in Tower A1 was allotted to the complainants for a consideration of Rs.20292883/- and they executed a Buyers Agreement with the OP on 25.3.2014. They also have a similar grievance that the possession of the flat has not been offered to them despite they having already paid a sum of Rs.6238594/- to the OP.
The complainant in CC/522/2017, namely, Raman Narula also booked a residential flat with the opposite party in the above-said project and flat No. A2-09-903 in Tower A2 was allotted to him for a consideration of Rs.18941277/- and he executed a Buyers Agreement with the OP on 28.4.2014. Their grievance also is that the possession of the flat has not been offered to him despite he having already paid a sum of Rs.5855695/- to the OP.
The complainant in CC/523/2017, namely, Priyanka Gupta also booked a residential flat with the opposite party in the above-said project and flat No. A2-05-501 in Tower A2 was allotted to her for a consideration of Rs.18406981/- and she executed a Buyers Agreement with the OP on 27.8.2014. Her grievance is that the possession of the flat has not been offered to her despite she having already paid a sum of Rs.5688308/- to the OP.
The complainant in CC/524/2017, namely, Raj Sethi also booked a residential flat with the opposite party in the above-said project and flat No. A2-03-303 in Tower A2 was allotted to him for a consideration of Rs.18941277/- and he executed a Buyers Agreement with the OP on 25.3.2014. The grievance of the complainant is that the possession of the flat has not been offered to him despite he having already paid a sum of Rs.5855696/- to the OP.
The complainant in CC/526/2017, namely, Kunal Wadhwa also booked a residential flat with the opposite party in the above-said project and flat No. A1-11-1102 in Tower A1 was allotted to him for a consideration of Rs.20292883/- and he executed a Buyers Agreement with the OP on 10.7.2014. His grievance is that the possession of the flat has not been offered to him despite he having already paid a sum of Rs.6238595/- to the OP.
2. Clauses 43, 44 & 49 of the terms and conditions of the agreement as contained in the applications, read as under:-
"43. Subject to Force Majeure, as defined herein and further subject to the applicant having complied with all its obligations under the terms and conditions of this Agreement and the applicant not having defaulted under any provision(s) of this Agreement including but not limited to the timely payment of the total Sale Consideration, stamp duty and other charges prescribed by the Company, the Company proposes to offer the possession of the said Apartment to the applicant within a period of 42 months from the date of approval of the building plans and/or fulfillment of the pre-conditions imposed thereunder ("Commitment Period"). The applicant further agrees and understands that the Company shall additionally be entitled to a period of 180 (6 months) days ("Grace Period"), after the expiry of the said commitment period to allow for unforeseen delays beyond the reasonable control of the Company. Subject to the condition contained herein, if the Company fails to offer possession of the said apartment to the applicant by the end of the Grace Period, it shall be liable to pay to the applicant compensation calculated at the rate of Rs. 7.5/- (Rupees Seven and Fifty Paisa only) per sq. ft. of Super Area ("Delay Compensation") for every month of delay thereafter until the actual date fixed by the Company for offering the possession of the said such 'Delay Compensation' only at the time of 'Notice of Possession' or at the time of payment of the final installment, whichever is earlier.
44. Subject to the above, in the event of delay by the Company in offering the possession of the said Apartment beyond a period of 12 months from the end of the Grace Period (such month period hereinafter referred to as the 'Extended Delay Period' then the applicant shall become entitled to opt for termination of the Agreement and refund of the actual paid up installment paid by it against the said Apartment. It is clarified that the delay compensation calculated for the fixed period of 12 months only shall be paid by the Company alongwith the installments refundable under this Clause without any interest. This option may be exercised by the applicant only up till dispatch of the Notice of Possession by the Company to the Applicant. No other claim, whatsoever, monetary or otherwise shall lie against the Company nor be raised otherwise or in any other manner by the Applicant.
49. Notwithstanding anything contained in this Agreement, timely performance by the applicant of all its obligations under this Agreement, including without limitation, its obligations to make timely payment of the Sale Consideration, maintenance charges and other deposits and amounts, including any interest, in accordance with this agreement shall be of essence under this Agreement. If the applicant neglects, omits, ignores, or fails in the timely performance of its obligations agreed or stipulated herein for any reason whatsoever or to pay in time to the Company any of the installments or other amounts and charges due and payable by the Applicant by respective due dates, the Company shall be entitled to cancel the allotment and terminate this Agreement in the manner described hereunder.
Clause 21.3 of the Buyers Agreement on which reliance was placed by the learned counsel for the OPs, reads as under:-
21.3 The allottee understands, agrees and consents that upon such termination, the Company shall be under no obligation save and except to refund the amounts already paid by the Allottee to the Company, without any interest, and after forfeiting and deducting the Earnest Money, interest on delayed payments, brokerage/commission/charges, service tax and other amounts due and payable to it, only after resale of the said Apartment. Upon termination of this Agreement by the Company, save for the right to refund, if any to the extent agreed hereinabove, the Allottee shall have no further right or claim against the Company and/or the Confirming Parties which, if any, shall be deemed to have been waived off by the Allottee and the Allottee hereby expressly consents thereto. The Company shall thenceforth be free to deal with the said Apartment in any manner whatsoever, in its sole and absolute discretion and in the event that the Allottee has taken possession of the said Apartment and everything whatsoever contained therein and in such event, the Allottee and/or any other person/occupant of the said Apartment shall immediately vacate the said Apartment and otherwise be liable to immediate ejectment as an unlawful occupant/trespasser. This is without prejudice to any other rights available to the Company against the Allottee.
3. It would thus be seen that the possession of the apartments ought to have been delivered to the aforesaid complainants within 42 months from the date of approval of the building plans and/or fulfilment of the pre-conditions if any, imposed under the approval of the building plans. The OP was entitled to a grace period of 180 days but only for the unforeseen reasons beyond their control. The case of the complainants is that not only the possession of the apartments was not offered to them, even the construction is not complete despite they having made substantial payment to the OP. The complainants are therefore, before this Commission seeking refund of the amount paid by them to the OP alongwith compensation in the form of interest etc."
4. The complaints have been resisted by the OP which has admitted the allotments made to the above referred complainants as well as the payment received from them. The execution of the agreements with them has also been admitted. The complaints have been resisted primarily on the grounds which this Commission has already rejected in CC/1998/2016 - Subodh Pawar Vs. Ireo Grace Realtech Pvt. Ltd. & Ors., decided on 24.9.2018. The main ground of contest is that the fire safety approval came to be accorded only on 27.11.2014 and having been filed before expiry of 42 months from the said date, the complaints are premature. This is also the case of the opposite party that the complainants are defaulter in making payment they having not paid installments No. 4 to 8, out of which installment No.4 had become due even before institution of the complaints whereas installment Nos. 5 to 8 became due during pendency of the complaints.
5. The decision in Subodh Pawar (supra) which deals with all these contentions, to the extent it is relevant, reads as under:-
"7. It is an admitted position that the building plans for this project were approved by Directorate of Town and Country Planning, Haryana vide its memo dated 23.07.2013. Therefore, in my opinion, the possession of the apartments, complete in all respects, ought to have been offered to the complainants by 23.01.2017. As noted earlier, the benefit of grace period was available to the OPs only in the event of the delay happening on account of the reasons which the parties could not have foreseen at the time the allotments were made. No such unforeseen circumstance however, has been established by the OPs.
8. The learned counsel for the OPs has drawn my attention to condition no. 3 of the memo dated 23.07.2013 related to fire safety which reads as under:
On receipt of the above request the Commissioner, Municipal Corporation, Gurgaon after satisfying himself that the entire fire protection measures proposed for the above buildings are as per NBC and other Fire Safety Bye Laws, and would issue a NOC from the Fire Safety and means of escape/access point of view. This clearance/NOC from the File Authority shall be submitted in this office alongwith a set of plans duly signed by the Commissioner, Municipal Corporation, Gurgaon within a period of 90 days from the date of issuance of sanction of building plans. Further, it is also made clear that no permission for occupancy of the building shall be issued by Commissioner, Municipal Corporation, Gurgaon unless he is satisfied that adequate fire-fighting measures have been installed by you and suitable external fire-fighting infrastructure has been created at Gurgaon, by Municipal Corporation, Gurgaon before grant of occupation certificate by the Director General.
The contention of the learned counsel is that the period stipulated for offering possession should start from the date on which the clearance from fire authority was issued. She also submits that the said clearance came to be issued only on 27.11.2014 though according to the learned counsel, the same was applied on 24.10.2013. It would be seen from the condition relating to fire safety condition in the approval dated 23.07.2013 that an NOC from the Fire Safety Department was to be obtained by the OPs and submitted to the Directorate of Town and Country Planning, Haryana within a period of 90 days from the issuance of the said approval. The aforesaid period of 90 days expired on 21.10.2013. The OPs thus, did not even apply for the requisite NOC from fire authority within the period stipulated for obtaining and submitting the said approval. More importantly, there was no such stipulation in the approval dated 23.07.2013 that the builder could not commence construction without obtaining the said fire safety NOC. Only the Occupancy Certificate could not have been issued without the Municipal Corporation, Gurgaon satisfying itself that adequate fire safety measures had been installed and suitable external fire-fighting infrastructure had been created at Gurgaon by the said Corporation. The OPs therefore, could have started the construction immediately after the aforesaid approval dated 23.07.2013 was obtained. The possession therefore, ought to have been offered by 23.01.2017 since in the absence of unforeseen circumstances, the benefit of the grace period was not available to the OPs.
9. It transpired during the course of hearing that the complainants in CC No.1999/2016 & CC No.2000/2016 have not paid installments no. 4th to 8th whereas the complainant in CC No.1998/2016 has not paid installments no. 5th to 8th. The contention of the learned counsel for the OPs is that having not paid the aforesaid installments, the complainants are defaulters in making the payment and therefore, are not entitled to refund of the entire amount paid by them and/or any compensation for the delay in offering possession. This is also her contention that the complainants have no right to terminate the agreement and claim refund for at least 12 months from expiry of 48 months from the date of approval. In other words, according to the learned counsel for the OPs, the stage at which the complainants can terminate the agreement is yet to reach if the time period for delivery of possession is computed from the date on which the fire safety NOC was issued and the same has reached only in July 2018 if the said period commences from the date on which the building plans were approved vide memo dated 23.07.2013.
Since, I have held that the possession ought to have been delivered by 23.01.2017, within 42 months of the approval of the building plans, the defaults on the part of the complainant in CC No.1998/2016 in payment of 5th, 6th, 7th and 8th installments occurred only after the said last date for delivery of the possession had already expired, demand of the 5th installment having been raised on 01.11.2017 whereas the first default on the part of the complainants in CC No.1999/2016 & CC No.2000/2016 occurred just about two weeks before the last date for the offer of possession, the demand for the 4th installment being dated 10.01.2017. Moreover, these consumer complaints were already pending before this Commission when demands number 4 to 8 were raised.
10. In my opinion, since the OPs were already in default as far as the offer of possession was concerned, when the 5th, 6th, 7th & 8th installments were demanded, the complainants were under no obligation to pay the said installments. As far as the default in payment of the 4th installment by the complainants in CC No.1999/2016 & CC No.2000/2016 is concerned, it would be seen that the said installment was raised at the stage of casting of roof slab of the lower basement. The demand was raised about two weeks before the last date for offering possession of the flats to the said complainants. Since the construction was still at the stage of casting roof slab of the lower basement at that time, the complainants knew that even if they pay the 4th installment, it was impossible for the OPs to deliver possession of the apartments to them by the last date stipulated in this regard i.e. 23.01.2017 or within six months thereafter, i.e. 23.07.2017 even if the benefit of the grace period was given to them. When a flat buyer who is saddled with a demand applicable at the stage when the construction is at a very initial stage and the demand is raised just two weeks before the last date for offer of possession, he is not expected to sink more money with the builder despite knowing that the builder will not be able to honour his contractual obligation even if the benefit of a grace period of six months which was otherwise available only in case of unforeseen circumstances, is given to him. Therefore, even the complainants in CC No.1999/2016 & CC No.2000/2016 cannot be said to be defaulters, in the sense that they would lose their legal right to claim refund of the amount paid by them and the compensation for the defect/deficiencies on the part of the builder in rendering services to them.
11. As far as clause 44 of the indicators from the terms and conditions of the Apartment Buyers Agreement is concerned, this Commission has vide its order dated 18.09.2018 passed in CC No.190/2017 and connected matters, has already held that the said clause is wholly unfair besides being one sided and therefore, refund of the principal amount with appropriate compensation can be directed by this Commission despite the said clause The decision of this Commission in CC No.190/2017, to the extent it is relevant, reads as under:
7. The learned senior counsel for the OP has drawn my attention to clause 44 of the terms and conditions, extracted hereinabove and he submits that the aforesaid clause gives only a limited right to the complainants to terminate the agreement and seek refund of the amount paid by them. He also submits that in terms of the aforesaid clause, the contract could be terminated after a delay of at least 12 months, and only the delay compensation in terms of the agreement, for twelve months, is payable alongwith installments refundable to the allottee without any interest. However, in my view, since the OP failed to deliver possession of the allotted flats to the aforesaid complainants, it amounted to a deficiency in rendering service to them and therefore, this Commission is entitled to direct refund of the amount paid by them to the OP alongwith appropriate compensation. In my view, clause 44 which postpones the right of the flat buyer to terminate the agreement and seek compensation even after the grace period has expired, is wholly unfair besides being one sided and therefore, refund of the principal amount with appropriate compensation can be directed by this Commission despite clause 44 extracted hereinabove.
12. As far as clause 21.3 of the Buyers Agreement extracted hereinabove is concerned, the said clause, when read in conjunction with the other clauses of the agreement extracted hereinabove, is patently unfair, besides being one sided. If these clauses are given effect, it would result in a situation where a flat buyer, despite the failure of the builder to offer possession within the time stipulated in this regard and without there being any justification for doing so, will be practically remediless for 1½ years from the date of the default, no interest or compensation will be paid to him for the period his money is utilized by the builder, and even the principal amount will be repaid to him in an uncertain future, when the builder has already sold the apartment which was allotted to him. Such a term in the contract would be wholly one sided, unfair and unjust particularly when examined in the light of the fact that as far as the builder is concerned, he has a right to terminate the transaction in the event of even a single default on the part of the flat buyer and not only forfeit the earnest money but also deduct the other charges specified in clause 21.3 of the Buyers Agreement.
13. The learned counsel for the OPs refers to the decision of the Hon'ble Supreme Court in DLF Universal Limited Vs. Ekta Seth & Anr. (2008) 7SCC 585 in support of her contention that such a clause cannot be said to be unfair. However, on a careful perusal of the aforesaid judgment, I find that the clause upheld by the Hon'ble Supreme Court in the aforesaid case was different from the clauses appearing in the Buyers Agreement executed in these cases. In DLF Universal Limited (supra), the right of the buyers to terminate the agreement in the event of default on the part of the builder was not postponed as is the position in the present cases, though of course, it permitted the builder to deduct the earnest money and also deny any interest to the buyer on the amount paid by him. Considering the aforesaid distinction between the terms subject matter of the agreement in DLF Universal Limited (supra) and the terms subject matter of these transactions, the benefit of the above referred decision, in my view, would not be available to the OPs.
14. The learned counsel for the OPs submits that the parties having agreed to all the above referred stipulations, are bound by the same and cannot be allowed to have a grievance at a later date claiming the same to be unfair or one sided. No doubt the parties are ordinarily bound by the terms and conditions agreed between them in respect of a particular transaction, but the position would be altogether different where such terms are found to be wholly one sided and unfair, operating only to the detriment of the flat buyers without any corresponding detriment to the builder.
15. If a builder fails to deliver possession of the flat/plot booked with him, within the time period committed for this purpose and is unable to justify the said delay, this, in my opinion, would constitute a defect or deficiency in the services rendered by him to the buyer and in such a case, this Commission, in exercise of the powers conferred upon it by Section 14(1)(c)&(d) of the Consumer Protection Act would be competent to direct refund of the amount paid by the buyer to the builder, alongwith appropriate compensation for the loss or injury suffered by the buyer due to the defect/deficiency in the services rendered to him by the builder.
16. During the course of hearing, the learned counsel for the OPs submitted that since the amount of refund being sought is less than Rs.1 Crore, this Commission lacks the pecuniary jurisdiction to entertain these complaints. The aforesaid contention was examined and rejected by this Commission vide order dated 27.08.2018 in Pradeep Kumar Verma & Anr. Vs. M/s Supertech Limited, CC/508/2017, which to the extent, it is relevant, reads as under:
4. The first plea advanced by the learned counsel for the opposite party is that this Commission lacks pecuniary jurisdiction to entertain this complaint. In support of her contention she relies upon the decision of a Coordinate Bench of this Commission in CC/1195/2017 Narendra Shah & Anr. Vs. Supertech Ltd. decided on 24.5.2017. The aforesaid decision, in my view, is contrary to the decision of a Three-Members Bench of this Commission in Ambrish Kumar Shukla Vs. Ferrous Infrastructure Pvt. Ltd. CC No. 97 of 2016, decided on 07.10.2016 and therefore, does not constitute a binding legal precedent. In terms of Section 21 of the Consumer Protection Act, this Commission possesses the requisite pecuniary jurisdiction to entertain a consumer complaint where the value of the goods or services, as the case may be, and the compensation, if any, claimed, in the consumer complaint exceeds Rupees one crore. It was held by the Three-Members Bench of this Commission in Ambrish Kumar Shukla (supra) that the value of the service in such cases would mean the sale consideration agreed to be paid by the flat buyer to the builder. The amount actually paid by the flat buyer to the builder would have absolutely no relevance in such a case, the only relevant factors being the value of the service i.e. the sale price agreed to be paid by the flat buyer to the builder and the compensation claimed in the consumer complaint. For instance, if a flat buyer agrees to purchase a residential house for a consideration of more than Rupees one crore, but pays only Rs.10.00 lacs to the builder and is aggrieved on account of the builder having failed to honour his contractual commitment, the appropriate Forum, if he wants to file a consumer complaint, would be this Commission, since the value of the service i.e. the price which he had agreed to pay to the builder for the flat was more than Rupees one crore. In the present case, admittedly, the sale price of the flat was agreed at more than Rs.1,38,00,000/-. Therefore, it is only and only this Commission which would have pecuniary jurisdiction to entertain a consumer complaint.
17. It would thus be seen that in these cases, the last date for offering possession of the flats expired on 23.01.2017, the construction is not complete even today, and even today, there is no certainty as to when the OPs will be able to apply for and obtain the requisite Occupancy Certificate. The complainants therefore, cannot be compelled to keep on waiting for the apartments, and are entitled to seek refund of their money with suitable compensation."
6. The learned counsel for the OP placing reliance upon Section 15 of the Haryana Fire Service Act, 2009 submits that the op could not have commenced construction without obtaining the requisite fire safety approval which came only on 27.11.2014. As noted by this Commission in Subodh Pawar (supra), the building plan approval which was issued by Directorate of Town and Country Planning, Haryana on 23.07.2013 did not prohibit the builder from commencing the construction before obtaining the requisite fire safety approval, though it required the builder to obtain the requisite Clearance / NOC from the fire authority within a period of 90 days from the issuance of the sanction of the building plans and it also stipulated that the permission for occupancy of the building shall not be issued by the Commissioner, Municipal Corporation, Gurgaon unless he was satisfied with respect to the adequacy of fire-fighting measures and external fire-fighting infrastructure , before grant of occupation certificate. The learned counsel for the OP has not been able to draw my attention to any provision of Haryana Fire Service Act prohibiting commencement of construction without first obtaining the fire safety approval. Section 15 on which reliance is placed by the learned counsel for the OP, requires the builder to apply for the requisite approval before commencement of the construction and issuance of the NOC but does not put an embargo on the start of the construction without first obtaining the said approval, provided that the application, meeting requirements of the Act is submitted before starting the construction. Therefore, once the approval was applied for, the builder could commence the construction. In fact, sub-section (2) of Section 15 envisages issuance of a provisional NOC, before the construction is taken up. The said provisional NOC is mandated to be issued within 60 days of submission of the application giving all details of the construction being undertaken as well as the rescue fire provision and fire safety details required to be incorporated during the period of construction. It also provides that during the process of construction, the inspection of the construction may be conducted and advice about additions, deviations etc. can be tendered. On completion of the construction of a high rise building, a NOC is required to be obtained in terms of sub-section (5) of Section 15 of the Act. Therefore, if the opposite party had submitted the requisite application in terms of Section 15(2) of the Haryana Fire Service Act, giving all the details mentioned in sub-section (3) of Section 15, the concerned authority would have issued a provisional NOC to the builder. This is not the case of the opposite party that despite it having submitted an application with the all the required details in terms of sub-section (3) of Section 15, the provisional NOC was not issued to it by the competent authority under Haryana Fire Service Act, 2009. As noted earlier, the building plans came to be approved on 23.7.2013. The opposite party applied for the fire safety clearance on 23.10.2013 though considering the requirement of submitting the NOC within 90 days from the approval of the building plans it ought to have applied for the fire safety NOC/Clearance immediately after the building plans were approved. In any case, if the opposite party did apply for the requisite fire safety clearance on 23.10.2013, along with all the prescribed details in terms of sub-section 3 of Section 15, the provisional NOC would have been issued to it by the competent authority, the same being the mandate of law. Therefore, either the opposite party did not initially give all the prescribed details in its application seeking fire safety clearance or it had actually received the provisional NOC in terms of sub-section (3) of Section 15. If the opposite party had not given the prescribed details required in terms of sub-section (3) of Section 15, it is only itself to blame for the delay in issuance of the provisional NOC. If it had given the prescribed details, there is no reason why the provisional NOC would not have been issued to it.
7. It is an admitted position that even the fire safety approval was obtained by the opposite party on 27.11.2014. Had the opposite party been earnest and sincere, it would have tried to expedite the completion of the construction considering the delay which had already taken place and in any case, it would have completed the construction within 42 months from 23.10.2014 which expired on 23.4.2018. However, the fact remains that the opposite party has not as yet completed the construction as is evident from an admitted position as it has not even applied for issuance of the requisite Occupancy Certificate. It cannot offer equal possession without obtaining the said Occupancy Certificate.
8. The learned counsel for the complainants states that in fact, the opposite party has obtained time till 30.6.2020 in respect of 2 phases of this project and time till 31.12.2023 in respect of third phase of the project from Haryana Real Estate Regulatory Authority while obtaining the registration certificate in respect of the subject project. He has also placed on record a copy of the registration issued by RERA Authority to the opposite party on 7.12.2017 in respect of the subject project, namely, 'the Corridors' in Sector-67A of Gurgaon.
9. For the reasons stated hereinabove, the complaints are disposed of with the following directions:-
(i) In all the above-referred consumer complaints, the opposite party shall refund the entire principal amount received from the complainants alongwith compensation in the form of simple interest @ 10% per annum from the date of each payment till the date of refund.
(ii) The OP shall also pay a sum of Rs.25,000/- as the cost of litigation in each complaint.
(iii) The aforesaid payment shall be made within three months from today. ......................J V.K. JAIN PRESIDING MEMBER