National Consumer Disputes Redressal
Nupur Bansal & 2 Ors. vs M/S. Ireo Grace Realtech Pvt. Ltd. on 23 June, 2022
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 1990 OF 2018 1. NUPUR BANSAL & 2 ORS. ...........Complainant(s) Versus 1. M/S. IREO GRACE REALTECH PVT. LTD. C-4, First Floor, Malviya Nagar, New Delhi-110017 ...........Opp.Party(s)
BEFORE: HON'BLE MRS. JUSTICE DEEPA SHARMA,PRESIDING MEMBER HON'BLE MR. SUBHASH CHANDRA,MEMBER
For the Complainant : Mr Paban Kumar Sharma, Advocate with
Mr Pranab Kumar Nayak, 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 : 23 Jun 2022 ORDER
PER MR SUBHASH CHANDRA, MEMBER
1.This complaint is filed u/s 21 of the Consumer Protection Act, 1986 by the complainants seeking refund of the amount deposited along with penal interest and other compensation in respect of the flat booked by them with the opposite parties in their project promoted and developed by the opposite parties, alleging deficiency in service and unfair trade practice on account of the delay in handing over possession of the flat.
2. Briefly, the facts are that the complainants had booked a flat in a project promoted and developed by the Opposite parties viz., "The Corridors", Golf Course Extension Road, Sector 67 A, Gurgaon, Haryana on 11.03.2013 for their residential purpose. An allotment letter was issued by the opposite party to the complainants on 07.08.2013 allotting flat no. A5-09-902 in Tower A5, admeasuring 1966.61 sq ft in the above said project for a total sale consideration of Rs.2,15,24,609.98/-. The complainants deposited Rs.1,96,86,977.86/- towards this flat by way of 24 instalments between 11.03.2013 and 15.01.2018. An Apartment Buyers Agreement (in short 'the ABA') was entered into between the complainants and the opposite party on 09.04.2014. As per clause 13.3 of the ABA, the opposite party committed to offer possession of the flat within 42 months with an additional grace period of 180 days from the date of building plan approval, which was obtained on 23.07.2013, with a further extended delay period of 12 months from the expiry of grace period, under clause 13.5 of ABA, i.e., on or by 23.07.2018, failing which compensation at the rate of Rs.7.50 per sq foot was promised by the opposite party to the complainant. The complainant raised certain objections that the agreement was entirely one-sided and arbitrary, terms of which were not acceptable. However, no substantive reply was received from the opposite party who refused to change/modify the terms of ABA. Apartment no.A5-09-902 was allotted to Smt Santosh Bansal, Ms Nupur Bansal and Mr Amrit Lal Bansal. Smt Santosh Bansal and Mr Sandeep Bansal were also allottees of another apartment no.C9-09-902 in the same project. Due to the demise of Smt Santosh Bansal in January 2015, Sandeep Bansal sought cancellation of apartment no.C9-09-902. However, instead of refunding the amount in respect of this apartment, the OP vide letter dated 08.09.2015 adjusted Rs.44,02,493/- received by it towards part payment of apartment no.A5-09-902. 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 complainants as consumers were unable to contest. The complainants have sought full refund of the deposited amount and other reliefs as per the following prayer:
(i) Direct the opposite party to refund forthwith Rs.1,96,86,977.86/- along with interest as compensation of Rs.1,07,02,098/- (@18% per annum calculated upto 31.08.2018) totalling to Rs.3,03,89,075.86/- to the complainant, together with further interest upto the date of actual payment by the opposite party;
(ii) Direct the opposite party to pay a sum of Rs.25 lakh towards opportunity loss caused to complainant due to the acts of omission/ commission on the part of the opposite party;
(iii) Direct the opposite party to pay a sum of Rs.5.00 lakh towards undue hardship, injury and agony both physical and mental caused to the complainant;
(iv) Direct the opposite party to pay at least a sum of Rs.1.00 lakh to the complainant towards the cost of litigation; and
(v) Pass such other or further order as this Hon'ble Commission deems 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. It is contended by him that the complaint 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 contended that the allegations in the complaint are of a contractual nature and as such triable only in a civil court. It is also contended 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 an 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 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 "it would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession" as laid down in Kolkata West International City Pvt., Ltd. Vs. Devasis Rudra, Civil Appeal No. 3182 of 2019 decided on 25.03.2019. It also affirmed that in view of an absence of the OC or offer of possession, the right of the complainant to refund with compensation cannot be denied.
6. The complainant has also relied upon the judgment of the Hon'ble Supreme Court in the case of Central Inland Water Transport Corporation vs Brojo Nath Ganguli (1986) 3 SCC 156 in which the Supreme Court held that the freedom of contract is a reasonable social idea to the extent that equal bargaining power between the contracting parties must exist. He has also relied upon this Commission's orders in Satish Kumar Panday vs Unitech Ltd. CC no. 427 of 2014 decided on 08.06.2015 which relied upon the law in Brojo Nath Ganguli (supra).
7. 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 in view of 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.
8. The opposite party admits that it 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'. Also that clause 13.5 further, allows OP an extended delay period of 12 months after the grace period of 180 days, i.e., by 23.07.2018. It is an admitted fact that the complainants had continued to make deposits of various instalments with the opposite party between 2013-18. The opposite party also admits that the construction of Tower A5 in which the flat allotted to the complainants herein, viz., flat no 902 is located, has not been completed and that there was no OC in respect of this flat as on the date when possession was committed nor has a letter offering possession been issued although an OC dated 27.01.2022 was stated to be available. 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.
9. The opposite party has not been able to substantiate its averment that the complainant is not a 'consumer', the onus of which is squarely upon him in terms of Kavita Ahuja vs. Shipra Estate Ltd., & Jai Krishna Estate developers Pvt., Ltd. & Ors. I (2016) CPJ 31 (NC). As regards the issue whether the complainants are engaged in booking of this flat for a "commercial purpose", it has been settled by the Hon'ble Supreme Court in Laxmi Engineering Works vs P S G Industrial Institute - (1995) 3 SCC 583 that commercial purpose has to be defined from case to case. Mere booking of multiple units of flats in itself does not constitute commercial purpose. The contention 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). The principle of equity of obligations has been laid down by the Hon'ble Supreme Court in Abhishek Khanna (supra) in the very same project of the opposite party. In view of the settled position, the opposite party cannot deny the complainants their right to a full refund or to be kept waiting indefinitely.
10. We have gone through the order of the Hon'ble Supreme Court in Ireo Grace Realtech Pvt., Ltd., (supra). Although the complaint was filed on 04.09.2018, on which date the period of offering possession had not expired, it is necessary to take cognizance of the fact that the project was incomplete and no OC was available. The OC stated to be available is dated 27.01.2022 which is much beyond the ABA's committed date of possession, i.e. 23.11.2018. We are satisfied that the current complaint is covered by this judgment as it relates to the same project in which the complainants had booked their 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. Accordingly, we consider it appropriate to allow the complaint with the following directions:
(a) The opposite party shall refund the amount of Rs.1,96,86,977.86/- along with simple interest @ 9% per annum from 27.11.2018 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.
11. With these directions, the consumer complaint stands disposed of.
......................J DEEPA SHARMA PRESIDING MEMBER ...................... SUBHASH CHANDRA MEMBER