State Consumer Disputes Redressal Commission
Meenu Yadav vs M/S Ats Estates Pvt. Ltd. on 21 December, 2017
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
Consumer Complaint No. 402 of 2016
Date of Institution : 21.12.2016
Date of Reserve : 11.12.2017
Date of Decision : 21.12.2017
Ms. Meenu Yadav D/o Sh. L.S. Yadav, R/o Flat No. 6347-B,
Rajeev Vihar, Manimajra, Chandigarh - 160101
....Complainant
Versus
M/s ATS Estates Private Ltd. Office : ATS Gold Meadows,
Chandigarh Ambala Highway, Opposite Sadashiv Complex, Near
Derabassi-Barwala Chowk, Dera Bassi, District SAS Nagar
(Mohali) Punjab - 140507.
....Opposite party
Consumer Complaint under Section 17 of
the Consumer Protection Act, 1986.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member.
Shri Rajinder Kumar Goyal, Member
Present:-
For the complainant : Ms. Meenu Yadav, in person
For the opposite party : Sh. P.K. Khindria, Advocate
GURCHARAN SINGH SARAN, PRESIDING JUDICIAL MEMBER
ORDER
Consumer Complaint No. 402 of 2016 2 Complainant has filed the present complaint under Section 17 of the Consumer Protection Act, 1986 (for short the Act) against the opposite party (hereinafter referred as Op) on the averments that Op released their brochure to launch their project under the name and style of "ATS Golf Meadows Lifestyle" at Derabassi having office complexes, 5 star hotel with banquet halls, hospital, shopping mall, retail park, school, golf facilities, sports club and clubhouses etc.. It was further stated in the brochure that it will be a 300 acres township and will have access to Chandigarh- Ambala National Highway through its 60 feet wide internal road. These features were advertised by Op in the newspaper advertisements, websites and promotional emails. Being allured by the promises supported by the brochure and other advertisements and that the delivery of the flat will be given within a period of 36 months from the date of application, complainant moved an application for allotment of apartment bearing Unit No. 7114, Type 'C' in Tower No. 7 on 11th Floor having basic price of Rs. 43.70 Lacs @ Rs. 2300/- per sq. ft. for a 1900 sq. ft. size flat and for one basement car parking for a sum of Rs. 2 Lacs, power back up charges Rs. 1 Lac and maintenance security @ Rs. 50,000/- and service tax as applicable. A sum of Rs. 30 Lacs was paid by the complainant alongwith application vide cheque No. 102383 dated 30.12.2012 drawn on ICICI Bank. They promised that terms and conditions will be as per buyer's agreement being a standard format, which will be received from their Noida office. Therefore, in good faith this amount was paid. A sum of Rs. 92,700/- was paid as Consumer Complaint No. 402 of 2016 3 service tax vide cheque No. 102384 dated 30.1.2013 drawn on ICICI Bank on receipt of allotment letter dated 15.1.2013. Then buyer's agreement was executed between the parties on 15.1.2013. As per Clause No. 14 of the buyer's agreement, Op was to deliver the possession within a period of 36 months with a grace period of 6 months from the date of start of the construction of a particular tower i.e. December, 2012 i.e. upto June, 2016. Complainant made several visits to the site but the structure of tower No. 7 was not complete upto June, 2016. Having received no satisfactory reply from the representatives of the Op, complainant issued a letter dated 2.5.2016 that as per buyer's agreement, Op was liable to pay compensation @ Rs. 5/- per sq. ft. of the super area, therefore, Op should pay timely compensation @ Rs. 5/- per sq. ft. per month w.e.f. June, 2016 on monthly basis. Op in response to the letter replied by email dated 12.5.2016 but gave no final date of possession and gave tentative date of handing over of the tower No. 7 as December, 2017. This reply itself confirms the deficiency in services on the part of Op. Complainant wrote back a letter dated 17.5.2016 raising strong objection to the tentative date i.e. 18 months that too tentative is not acceptable to her but Op did not bother to intimate the complainant about very long possible delay whereas it was sending promotional emails/SMS focusing on new launch of the project. According to Clause 8 of the buyer's agreement and six months of the grace period in Clause No. 14, a reasonable extension for the delivery of possession upto 4 to 6 months that to timely payment of penalty per month may be Consumer Complaint No. 402 of 2016 4 considered by the complainant and it was also intimated that in case Op failed to deliver the possession within the stipulated date then they shall be liable to pay the refund amount paid by the complainant alongwith interest @ 18% p.a. but Op neither replied to the letter dated 17.5.2016 nor paid any penalty per month referred above. Op also indulged in unfair trade practice. In the price break-up in the application form, a sum of Rs. 2 Lac was claimed as car parking in addition to the basic sale price of Rs. 43.70 lacs, power back-up Rs. 1 Lac, maintenance security Rs. 50,000/-, however, in the buyer's agreement, the basic sale price was mentioned as Rs. 45.70 Lacs, which amounted to unfair trade practice on the part of Op. The building plan was approved with reference No. 267 dated 26.9.2011 by Municipal Council, Derabassi. Lateron Op introduced 2 BHK apartments in the project and the complainant came to know that Op changed and introduced the 2 BHK apartments in the same project and layout plan was changed without the consent of the complainant after nearly 4 years in violation of Section 11 of the Punjab Apartment and Property Regulation Act, 1995 (for short PAPRA). According to Clause 12 (a) & (b) of the PAPRA, in case for reasons beyond the control of the Op, they have failed to deliver the possession then they are liable to refund the amount already received by him in respect of plot/apartment with simple interest to be delivered by the Competent Authority and as per Rule 17 of the PAPRA Rules, 1995, the rate of interest on the refund of the money shall be 12%. Alleging unfair trade practice as well as deficiency in service, this Consumer Complaint No. 402 of 2016 5 complaint has been filed by the complainant against the Op seeking directions against the Op to refund the amount of Rs. 30,92,700/- deposited by the complainant with the Op alongwith interest @ 18% p.a.; Rs. 5 Lacs as compensation for deficiency in services and unfair trade practice, Rs. 2 Lacs for physical harassment and mental agony and Rs. 50,000/- as litigation expenses.
2. Upon notice, Op filed its written reply by taking preliminary objections that complaint is nothing but an abuse of process of harassment to the complainant; the agreement between the parties is contractual in nature as held by the Hon'ble Supreme Court in "Saurabh Prakash Vs. DLF Universal Ltd.", (2007) 1 SCC 228 and the dispute relating to the contractual obligation can be dealt with by an Arbitrator only appointed in accordance with the agreement. The terms of the agreement including the terms relating to the compensation is binding on both the parties as held by the Hon'ble Supreme Court in "Bharti Knitting Co. Vs. DHL Worldwide Courier", (1996) 4 SCC 704; under the CP Act, the compensation can be given only under Section 14 (1) (d) of the Act. The service under Section 2(1)(o) of the Act amounts any service but not limited to provisions of facilities in connection with the housing construction; the complaint is wholly misconceived as complainant has twisted the facts according to her convenience; the Commission does not have the territorial jurisdiction to entertain this complaint; there are various triable issues, which cannot be adjudicated by the Hon'ble Commission, hence, the complaint be Consumer Complaint No. 402 of 2016 6 dismissed; the complaint is not maintainable being devoid of merit. It was denied that there is any deficiency in service or unfair trade practice on the part of Op. It was denied that Op is in dominant position, as such, there is no question of the Op itself in the alleged dominant position. It was denied that buyer's agreement is draconian and containing one sided clauses. The terms and conditions were duly negotiated and the complainant has accepted the terms and conditions and only thereafter she had signed the agreement. The complainant had never raised any objection to the terms and conditions of the agreement. It was also denied that the Op committed breach of agreement as alleged in the complaint. The possession of the unit allotted to the complainant was proposed to be delivered within 36 months with a grace period of six months from the date of actual start of construction but on account of implementation of new Government policy and laws of real estate industry has adversely affected the sale of apartments. Despite adverse circumstances, Op is committed to fulfill its commitment. Moreover, as per Clause No. 15 of the buyer's agreement, it was agreed that in case there is delay beyond the stipulated period, then Op will pay Rs. 5/- per sq. ft. from such date till the date of possession. In reply to the letter of the complainant dated 2.5.2016, it was replied that tentative date of handing over the possession shall be December, 2017. Complainant then wrongly addressed the letter dated 17.5.2016 and 20.5.2016. It was denied that the complainant sent letters dated 13.7.2016, 10.8.2016 and 5.9.2016. The brochure of the Op is a matter of Consumer Complaint No. 402 of 2016 7 record. It is not denied that the facility and amenities as envisaged in the brochure will be developed phase wise because development of 300 acres of land will take place in phased manner. It was denied that terms and conditions were not made clear to the complainant at the time of taking Rs. 30 Lacs because the terms and conditions were never disputed by the complainant. In parawise reply, the stand taken in the preliminary objections was reiterated. The booking of the apartment/flat and the payment as stated in the complaint is admitted. No doubt that there is delay on the part of Op to raise the construction and delivery of the possession but the rights of the parties are to be regulated as per the terms and conditions incorporated in the buyer's agreement. It was also reiterated that the Op was in dominant position and got signed the agreement to the disadvantage of the complainant. It was denied that the Op was liable to pay monthly compensation of Rs. 9500/- per month from end date when the possession was to be delivered till the date of delivery of possession. The complainant is not entitled to interest @ 18% demanded by the complainant in the complaint. There is no violation of any provisions of PAPRA as alleged in the complaint. Complaint is without merit, it be dismissed.
3. The parties were allowed to lead their respective evidence to prove their contentions.
4. Complainant in his evidence has tendered her affidavit Ex. CW/1 and documents Exs. C-1 to C-25. On the other hand, Op has tendered in evidence affidavit of Shubhum Gaur Ex. Op-A. Consumer Complaint No. 402 of 2016 8
5. We have gone through the complaint, reply, written arguments filed by both the parties and oral written arguments submitted by the counsel for the parties.
6. Before going to the merits of the case, some preliminary objections have been taken by the counsel for the Op in the written reply as well as in the written submissions, which are required to be addressed first. It has been stated that the complainant will be entitled to the compensation as per the terms of the agreement and not above that. This point will be discussed in detail when we will take up the complaint on merits.
7. It has been stated that in case of violation of the terms and conditions of the agreement then the matter was required to be referred to the Arbitrator as per Clause 35 of the Agreement. Separate application was also moved by the counsel for the Op during the trial of the complaint to refer the matter to the Arbitrator and that application was decided by this Commission vide order dated 24.3.2017 and the application filed by the Op under Section 8 of the Arbitration and Conciliation Act, 1996 was dismissed, therefore, now this point cannot be raised by the counsel for the Op.
8. It has been stated that the housing construction is not covered under Section 2(o) of the CP Act. Section 2(o) of the Act reads as under:-
"2(1)(o) "service" means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection Consumer Complaint No. 402 of 2016 9 with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;"
It includes housing construction. Therefore, the view taken by the counsel for the Op that the housing construction is not covered under the services as provided under Section 2(1)(o) of the Act is erroneous.
9. Another point has been taken by the counsel for the Op that this Commission does not have the territorial jurisdiction. The property where the flat was to be allotted to the complainant i.e. ATS Golf Meadows Lifestyle is located at Derabassi in the State of Punjab, therefore, the State Commission has the territorial jurisdiction to entertain this complaint. Although in the written arguments, this plea was taken by the counsel for the Op but during the course of arguments, he has not addressed any arguments and was unable to rebut how this Commission did not have the territorial jurisdiction to entertain this complaint.
10. It has been stated that complicated and triable issues are involved, which cannot be dealt with in summary procedure, therefore, the complaint be dismissed. The dispute between the parties is that Op entered into an agreement with the complainant to deliver the flat against consideration within a specific time but within that time, its possession was not delivered. The question is Consumer Complaint No. 402 of 2016 10 whether the complainant is entitled to refund of the amount so deposited alongwith interest as claimed by the complainant. The documents of both the parties are there. Pleadings are there, how the Op was not in a position to deliver the possession within the time frame given by them, therefore, the findings can be recorded by this Commission on the basis of documents and these services are covered under the CP Act as referred above. It is worthwhile to mention here that the President and Members of the Commission are retired High Court Judges and Retired District & Sessions Judges having long background of judicial career at their back and there is no difficulty for these Officers to decide these type of complaints and are being decided, therefore, on that ground the complaint filed by the complainant cannot be dismissed.
11. Whether the Op is deficient in their services or has indulged in unfair trade practice? Exs. C-1 & C-2 is the brochure and advertisement given by the Op to have a property in their project by stating various features of their project. Ex. C-3 is the application form dated 30.12.2012 submitted by the complainant with the Op, alongwith that a sum of Rs. 30 Lacs was deposited vide DD No. 102383 dated 30.12.2012 ICICI, Chandigarh and basic sale price has been mentioned as Rs. 43.70 Lacs and Rs. 2 Lacs for car parking, Rs. 1 Lac for power back up and Rs. 50,000/- for maintenance charges. Ex. C-4 is the copy of the cheque deposited by the complainant with Op and this fact has not been denied by them and then buyer's agreement was executed Consumer Complaint No. 402 of 2016 11 between the parties on 15.1.2013 Ex. C-7. Clause No. 14 deals with the time of handing over possession, which reads as under:-
"14. Time of Handing Over Possession:
Barring unforeseen circumstances and Force Majeure events as stipulated hereunder, the possession of the said Apartment is proposed to be, delivered by the Company to the Allottee within a period of 36 months (three years) with a grace period of six months (hereinafter referred to as "the Stipulated : Date") from the date of actual start of the construction of a particular Tower Building in which the registration for allotment is made, subject always to timely payment of all charges including the Basic Sale Price* Stamp Duty, Registration Fees and Other Charges as stipulated herein or as may be demanded by the Company from time to time in this regard. The date of actual start of construction shall be the date on which the foundation of the particular Building in which the said Apartment is allotted shall be laid as per certification by the Company's Architect/Engineer-in- Charge of the Complex and the said certification shall be final and binding on the Allottee."
According to this Clause, the possession was to be delivered within a period of 36 months with a grace period of six months from the date of start of construction. The construction was started by them in the month of December, 2012 as intimated by them to the complainant vide their letter dated 24.12.2015 Ex. C-8. In this way, the Op was to deliver the possession by June, 2016. So far as the Consumer Complaint No. 402 of 2016 12 payment is concerned, the complainant had adopted down payment plan i.e. booking amount plus Rs. 29,10,079/- and due as on 17.1.2013 and Rs. 89,921/- as shown in Down Payment Plan Annexure II. The complainant has paid a sum of Rs. 30,92,000/-, therefore, the amount due has been paid and the remaining amount was payable at the time of possession. She has further placed on the record Ex. C-9 the picture of the tower as on 7.2.2014 and then on 3.11.2015. The complainant wrote a letter dated 2.5.2016 Ex. C-10 that there project is not coming up and that in case the possession is not delivered by June, 2016 then they are required to pay the penalty as per Clause 15 of the agreement. Therefore, w.e.f. June, 2016 in case the possession is not delivered then the penalty amount be deposited in her Saving Bank Account No. 001301511526, ICICI Bank, Sector 9, Chandigarh, IFSC Code - ICIC0000013. In response to that, the Op replied on 12.5.2016 Ex. C-11 that tentative date of handing over tower No. 7 would be December, 2017. After that complainant again wrote the letter dated 17.5.2016 Ex. C-12 to intimate the actual date, otherwise, she will be entitled to refund of the amount alongwith interest @ 18% but there is no response to this letter. Op in their evidence have also not tendered any document. In case the possession is not delivered within time, it amounts to deficiency in service and the complainant has a right to seek the refund. In this regard, a reference can be made to the judgment of the Hon'ble National Commission in "EMAAR MGF Land Ltd. & Anr. Versus Dilshad Gill", III (2015) CPJ 329 (NC) that when the promoter has Consumer Complaint No. 402 of 2016 13 violated the condition in not handing over the possession of the unit in time, it is not obligatory for a purchaser to accept the possession after that date. It has not been denied by the Op that in case the possession of the flat has not been given in time then it does not amount to deficiency in service.
12. The complainant in person further argued that the Op indulged in unfair trade practice. In the application form, the payment was mentioned as under:-
"A. Basic Sale Price (BSP) : Rs. 43,70,000/- (2300 sq. ft.) B. Parking Space : Open Covered Charges 2,00,000/-
C. External Development Charges (EDC) Rs. - /- per sq. ft.
of Super Area
D. Infrastructure Development Charges (IDC) Rs. - /- per
sq. ft. of Super Area
E. Any Other Charges: Rs. 1,00,000/- (Power
backup)+Rs. 50,000/- (Maintenance Deposit)
Payment Plan :
Rs. 30 Lac on Booking, Balance 13.70 lacs, parking, maintenance, power back up, to be paid at the time of possession Full Commission to be released after receiving Rs. 30 Lac."
Whereas when the agreement was executed between the parties, they referred the BSP as Rs. 45.70 Lacs the price of car parking i.e. Rs. 2 Lacs has been added in the BSP. It has been done with malafide intention because in case stilt / open parking is provided Consumer Complaint No. 402 of 2016 14 then the Op may not be legally entitled to charge the car parking. Since the complainant has already paid a sum of Rs. 30 Lacs at the time of application form under the down payment plan then she had no option but to accept the terms and conditions of the agreement, therefore, she did not raise any voice because the price remained the same but the act of the Op amounts to unfair trade practice. The original site plan was approved by the competent authority vide letter No. 267 dated 26.9.2011, at the time there was no provision of 2 BHK apartment in the project and lateron the layout was got changed without the consent of the complainant after 4 years and 2 BHK flats were added in it. There is simple denial in the reply to the complaint to these facts. Perusal of these site plans approved in 2011 and 2015 proves this fact that there is a drastic change in the proposing towers by adding new flats. Section 11 of the PAPRA is relevant, which reads as under:-
"11. No alterations, rectification of defects. - (1) After the plans and specifications of the building as approved by the authority which is required so to do under any law are disclosed or furnished to the person who agrees to take an apartment, the promoter shall;
(i) not make any alterations in the structures described therein in respect of such apartment, without the previous consent of that person; or
(ii) not make any other alterations in, or additions to the structure of the building or construct any additional structures, without the previous consent of all the Consumer Complaint No. 402 of 2016 15 persons who have agreed to take apartments in such building.
(2) Subject to the provisions of sub-section (1), the building shall be constructed and completed in accordance with the plans and specifications aforesaid ; and if any defect in the building or material used, or if any unauthorised change in the construction is brought to the notice of the promoter within a period of two years from the date of handing over possession, it shall wherever possible be rectified by the promoter without further charge to the persons who have agreed to take the apartments, and in other cases such persons shall be entitled to receive reasonable compensation for such defects or change and where there is a dispute as regards any defect in the building or material used or any unauthorised change in the construction, or as to whether it is reasonably possible for the promoter to rectify any such defect or change, or as regards the amount of reasonable compensation payable in respect of any such defect or change which cannot be or is not rectified by the promoter, the matter shall, on payment of such fee as may be prescribed and within a period of three years from the date of handing over possession, be referred for decision to the competent authority and the competent authority shall, after giving an opportunity of being heard to the parties and after making further enquiry, if any, as it may deem fit, record its decision and the decision so recorded shall be final." Consumer Complaint No. 402 of 2016 16
It makes it clear that after the plan and specifications of the building once approved by the Authority then Op is not to make any alterations in the structure or addition to the structure of the building or construct any additional structure without the previous consent of all the persons who have agreed to take apartments in such building but no consent of the complainant was taken. Therefore, the act of the Op in making structural changes in the layout plan amounts to deficiency in service.
13. The next question arises whether the complainant is entitled to refund of the amount alongwith interest. The interest @ 18% has been claimed by the complainant in his complaint and the written arguments submitted by the complainant. Whereas the counsel for the Op stated that the compensation over and above the terms agreed in the agreement cannot be given i.e. Rs. 5/- per sq. ft. per month of the super area as mentioned in Clause 14 of the agreement. In this regard, he has referred to the judgment of the Hon'ble Supreme Court in Civil Appeal No. 7960 of 2004 "Saurabh Prakash versus DLF Universal Ltd." decided on 24.11.2006 wherein it was observed that in case of violation of the terms and conditions of the agreement and where there is a stipulation in the nature of penalty for forfeiture of an amount deposited pursuant to the terms of contract which expressly provides for forfeiture, the Court has jurisdiction to award such sum only as it considers reasonable, but not exceeding the amount specified in the contract. He has also referred to another judgment of the Hon'ble Supreme Court Civil Appeal No. 4149 of 1995 "M/s Consumer Complaint No. 402 of 2016 17 Pawan Hans Ltd. versus Union of India and Anr." It is an appeal against the order of Monopolies and Restrictive Trade Practices Commission wherein provision of Section 2(o)(ii) of the said Act were interpreted by the Hon'ble Supreme Court but here our complaint is not under the Monopolies and Restrictive Trade Practices Commission but under the CP Act. Therefore, this judgment referred by the counsel for the Op is not applicable to the facts of this case. He has referred to another judgment 1996 SCC (4) 704 "Bharathi Knitting Company Vs. DHL Worldwide Express Courier Division of Airfreight Ltd." decided on 9.5.1996. In that case also compensation was allowed by the Hon'ble Supreme Court as per the terms of the agreement.
14. Now we are to decide whether the compensation awarded to the complainant over and above the amount paid by the complainant is to be awarded as per the agreement i.e. Rs. 5/- per sq. ft. per month or in the form of interest as claimed by the complainant? Op has abused their dominant position because Rs. 30 Lacs were taken by the Op at the time of application form and then she was made to sign the buyer's agreement being on standard format. In this regard, she has referred to the judgment of Competition Commission of India in case "Belaire Owner's Association Vs. DLF Limited" Case No. 19 of 2010, decided on 12.8.2011 wherein the association had complained that they hardly had any option but to adhere to the dictates of DLF. She has further referred to CC No. 427 of 2014 "Satish Kumar Pandey & Anr. Vs. M/s Unitech Ltd." decided on 8.6.2015 by the Hon'ble Consumer Complaint No. 402 of 2016 18 National Commission wherein the Hon'ble National Commission observed as under:-
"However, a term of a contract, in my view will not be final and binding if it is shown that the consent to the said term was not really voluntary but was given under a sort of compulsion on account of the person giving consent being left with no other choice or if the said term amounts to an unfair trade practice. It was submitted by the learned counsel for the complainants that the term providing for payment of a nominal compensation such as Rs.5/- per square foot of the super area having become the order of the day in the contracts designed by big builders, a person seeking to buy an apartment is left with no option but to sign on the dotted lines since the rejection of such term by him would mean cancellation of the allotment. He further submitted that a person seeking to acquire a built up flat instead of purchasing a plot and then raising construction on it, therefore, is not in a position to protest resist the inclusion of such a term in the Buyer's Agreement, and has to rely upon the reputation of the builder, particularly if he is a big builder such as Unitech Ltd. He also submitted that the format of the Buyer's Agreement is never shown to the purchasers at the time of booking the apartment and if he refuses to sign the Buyer's Agreement on the format provided by the builder, not only will he lose the booking, even the booking amount/earnest money paid by him will be forfeited by the builder. I find merit in the above referred submissions of the learned counsel. A person who, for one reason or the other, either cannot or does not want to buy a plot and raise construction of his own, Consumer Complaint No. 402 of 2016 19 has to necessarily go in for purchase of the built up flat. It is only natural and logical for him to look for an apartment in a project being developed by a big builder such as the opposite party in these complaints. Since the contracts of all the big builders contain a term for payment of a specified sum as compensation in the event of default on the part of the builder in handing over possession of the flat to the buyer and the flat compensation offered by all big builders is almost a nominal compensation being less than 25% of the estimated cost of construction per month, the flat buyer is left with no option but to sign the Buyer's Agreement in the format provided by the builder. No sensible person will volunteer to accept compensation constituting about 2-3% of his investment in case of delay on the part of the contractor, when he is made to pay 18% compound interest if there is delay on his part in making payment.
It can hardly be disputed that a term of this nature is wholly one sided, unfair and unreasonable. The builder charges compound interest @ 18% per annum in the event of the delay on the part of the buyer in making payment to him but seeks to pay less than 3% per annum of the capital investment, in case he does not honour his part of the contract by defaulting in giving timely possession of the flat to the buyer. Such a term in the Buyer's Agreement also encourages the builder to divert the funds collected by him for one project, to another project being undertaken by him. He thus, is able to finance a new project at the cost of the buyers of the existing project and that too at a very low cost of finance. If the builder is to take loan from Banks or Financial Institutions, it will Consumer Complaint No. 402 of 2016 20 have to pay the interest which the Banks and Financial Institutions charge on term loan or cash credit facilities etc. The interest being charged by the Banks and Financial Institutions for financing projects of the builders is many times more than the nominal compensation which the builder would pay to the flat buyers in the form of flat compensation. In fact, the opposite party has not even claimed that the entire amount recovered by it from the flat buyers was spent on this very project. This gives credence to the allegation of the complainants that their money has been used elsewhere. Such a practice, in my view, constitutes unfair trade practice within the meaning of Section 2(r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practice for the purpose of selling the product of the builder. Though, such a practice does not specifically fall under any of the Clauses of Section 2(r) (1) of the Act that would be immaterial considering that the unfair trades, methods and practices enumerated in Section 2(r) (1) of the Act are inclusive and not exhaustive, as would be evident from the use of word "including" before the words "any of the following practices".
The same view was upheld by the Hon'ble National Commission in CC No. 347 of 2014, "Swarn Talwar & Ors. Vs. Unitech Ltd." decided on 14.8.2015. A reference has also been made to the judgment of the Hon'ble Supreme Court in "K.A. Nagmani Vs. Housing Commissioner, Karnataka Housing Board", C.A. No. 6730-6731, decided on 19.9.2012. In that case, the District Forum has allowed interest @ 12% p.a. and its appeal was dismissed by the State Commission as well as the Hon'ble National Commission Consumer Complaint No. 402 of 2016 21 and after relying upon the judgment of "Ghaziabad Development Authority Vs. Balbir Singh", (2004) 5 SCC 65, the interest @ 18% per annum on the deposited amount was allowed alongwith Rs. 50,000/- as compensation. Against the judgment of the Hon'ble National Commission in "Swarn Talwar & Ors. Vs. Unitech Ltd.", C.C. No. 347 of 2014 (supra), Op preferred the appeal before the Hon'ble Supreme Court i.e. Civil Appeal No. 35562 of 2015, decided on 11.12.2015 and passed the order as under:-
"We have heard learned counsel for the appellant and perused the record. We do not see any cogent reason to entertain the appeal. The judgment does not warrant any interference.
The Civil Appeal is dismissed."
As earlier stated, the Op was in a dominant position as the complainant had already paid a sum of Rs. 30 Lacs, therefore, she could not object the recitals in the agreement. Otherwise, the agreement being one sided is clear because according to mode of payment in case of any delayed payment, Op were to charge 18% per annum interest whereas in case there is delay on its part, they are just to pay approximately 3%. In this context, the judgment relied upon by the counsel for the Op i.e. "Saurabh Prakash Vs. DLF Universal Ltd." (supra) cannot be adopted. Moreover, the complainant is not seeking the possession because in case the Op has failed to deliver the possession in time, she has a right to claim the refund and this preposition has not been disputed by the Op. Consumer Complaint No. 402 of 2016 22 Even till the date of arguments, counsel for the Op was not sure as to when they will complete the project and deliver the possession. In case the complainant is not seeking the possession then clause of penalty @ Rs. 5/- per sq. ft. per month will not be applicable. It has been so held by the Hon'ble National Commission in the judgment 2017(3) CLT 520 (NC) "Ankur Goswami versus Supertech and another" wherein the Hon'ble National Commission observed that this clause in the allotment letter would be applied to the case where allottee is seeking possession of the flat and where allottee is not seeking refund of the amount. These judgments have not been rebutted by the counsel for the party.
15. It is interesting to note that Op in one case before the State Consumer Disputes Redressal Commission, Chandigarh has settle the matter to pay the interest @ 12% on the deposited amount from the date of deposit i.e. CC No. 262 of 2016 "Mohit Kumar Singla versus M/s ATS Estates Private Limited"
decided on 5.10.2016. Once they in an other complaint has agreed to pay interest @ 12% on the deposited amount, now they cannot oppose the payment of interest on the said rate to the complainant, which is just and reasonable. The Op will be liable to pay the deposited amount including the service tax, if any, deposited by the complainant alongwith interest @ 12% per annum.
16. No other point was raised.
Consumer Complaint No. 402 of 2016 23
17. Sequel to the above, we accept the complaint and ordered the Op as under:-
(i) to refund the sum of Rs.30,92,700/- alongwith interest at the rate of 12% per annum from the various dates of payment till payment;
(ii) to pay Rs.1,00,000/- as compensation on account of
mental agony and physical harassment to the
complainant;
(iii) to pay Rs.21,000/- as litigation expenses.
18. The above directions be complied by the Op within a period of 45 days from the date of receiving of the copy of the order, failing which the complainant shall be at liberty to execute the order by filing application under Sections 25 & 27 of the CP Act against the Op.
19. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
20. Order be communicated to the parties as per rules.
(GURCHARAN SINGH SARAN) PRESIDING JUDICIAL MEMBER (RAJINDER KUMAR GOYAL) MEMBER December 21, 2017.
as