National Consumer Disputes Redressal
Mohit Sharma & Anr. vs M/S. Ramprastha Promoters And ... on 1 May, 2019
Author: R.K. Agrawal
Bench: R.K. Agrawal
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 2384 OF 2017 1. MOHIT SHARMA & ANR. S/O K.K.SHARMA
R/O Q-305,
SISPAL VIHAR,
SECTOR 49,
SOHNA ROAD, GURGAON HARYANA 2. SHIKHA SHARMA W/O MOHIT SHARMA
R/O Q-305,
SISPAL VIHAR,
SECTOR 49,
SOHNA ROAD, GURGAON HARYANA ...........Complainant(s) Versus 1. M/S. RAMPRASTHA PROMOTERS AND DEVELOPERS PVT. LTD. & ANR. THROUGH THEIR AUTHORIZED REPRESENTATIVES,
REGD. OFFICE AT:
C-10, C BLOCK MARKET,
VASANT VIHAR, NEW DELHI 2. M/S. BLUE BELL PROPTECH PVT. LTD. THROUGH THEIR AUTHORIZED REPRESENTATIVES,
REGD. OFFICE AT:
C-10, C BLOCK MARKET,
VASANT VIHAR, NEW DELHI ...........Opp.Party(s) CONSUMER CASE NO. 2385 OF 2017 1. NEERAJ KUMAR & ANR. S/O RAJ SINGH
R/O 19, VILLAGE GADOLI KHURD,
PATAUDI ROAD, GURGAON HARYANA ...........Complainant(s) Versus 1. M/S. RAMPRASTHA PROMOTERS AND DEVELOPERS PVT. LTD. & ANR. THROUGH THEIR AUTHORIZED REPRESENTATIVE
REGD. OFFICE AT:
C-10, C BLOCK MARKET,
VASANT VIHAR, NEW DELHI 2. M/S. BLUE BELL PROPTECH PVT. LTD. THROUGH THEIR AUTHORIZED REPRESENTATIVE
REGD. OFFICE AT:
C-10, C BLOCK MARKET,
VASANT VIHAR, NEW DELHI ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT HON'BLE MRS. M. SHREESHA,MEMBER
For the Complainant : Mr. Sushil Kaushik, Advocate,
Ms. Himanshi Singh, Advocate,
Mr. Karan S. Negi, Advocate,
Mr. Manoj Yadav, Advocate. For the Opp.Party : For the Opposite Party No. 1 : Mr. Nakul Mohta, Advocate,
Mr. Lalit Mohan, Advocate.
For the Opposite Party No. 2 : NEMO (Heard Mr. Sougat Sinha &
Mr. Manoj Kumar, Advocates for OP-
2 on 25.04.2019).
Dated : 01 May 2019 ORDER
Per Mrs. M. Shreesha, Member
These are Original Complaints bearing No. 2384, 2385, 3006, 3007, 3008, 3652, 3653 and 3654 of 2017 filed under Section 21(a)(i) of the Consumer Protection Act, 1986 (for short "the Act") against M/s Ramprastha Promoters And Developers Pvt. Ltd. arrayed as a First Opposite Party and against M/s Blue Bell Proptech Pvt. Ltd. arrayed as a Second Opposite Party seeking the following reliefs:-
"a. Direct the O.P. to refund the entire amount of ₹62,85,672/- collected from the complainants towards the consideration, along with interest @ 18% p.a. on the amount paid by them from the date of collection of the amounts till it is actually returned to the complainants. Interest up to August 2017 amounts to ₹51,66,031/-.
b. Direct the O.P. to pay a sum of ₹5,00,000/-. (Rupees Five Lakhs only) towards mental agony and harassment and towards cost of litigation to the Complainants.
c. Any other order(s) as may be deemed fit and appropriate may also kindly be passed."
2. Since the facts in all the Complaints are common and the reliefs prayed for are also identical against the same parties, all the Complaints are being disposed of by this common order. However, for the sake of convenience, Complaint No. 2384/2017 is being taken as a lead case.
3. The facts material to the case are that the Complainant, lured by the advertisement issued by the Opposite Parties applied for an Apartment in the housing project floated by the Opposite Parties. It was stated by the Opposite Parties that they have been allotted 60.5112 acres land in village Gadauli Kalan, Tehsil & District, Gurgaon, Haryana, Sector 37-D, Gurgaon, Haryana. It is averred that the total consideration of the Apartment was fixed by the Opposite Parties and the amounts were to be paid as per the fixed payment schedule which was construction-linked. The Builder Buyers Agreement dated 08.11.2011 was entered into between the Complainant and the Opposite Parties, wherein the total sale consideration was fixed to the tune of ₹71,87,959/-. The promised date of delivery of possession of the Apartment was 31.08.2014. It is averred that the Builder Buyers Agreement was an already prepared Agreement which was one sided and some of the Clauses were totally unreasonable but as there was a substantial time gap between the date of the application and the date on which the Buyer's Agreement was shown to the Complainants, they had no choice but to sign on it. It was further averred that when the Complainant had made a request to change one of the one sided clauses he was informed that the Agreement had to be signed as it is and no modifications would be entertained. Faced with no other option as an initial booking amount was already paid, the Complainants signed the Builder Buyer Agreement. In the Agreement it is noted that the allotee had paid an amount of ₹10,82,797/-which included the booking amount of ₹6,01,346/-.
4. It is pleaded that there was a significant delay in the delivery of possession of the subject flat and the Complainants regularly visited the site but were surprised to see that there was no progress in the construction. No one was present on the site to even answer their queries. Though the promised date of delivery was August, 2014 and there was a delay of almost three years at the time of filing of this Complaint, the construction of the Apartment is far from completion. It is averred that the Complainant had paid a substantial amount of money towards the total sale consideration i.e. an amount of ₹62,85,672/-. As per Clause 17(a) of the Buyers Agreement it was agreed that if there was any delay on behalf of the Opposite Parties in completing the Project a compensation @ ₹5/- per sq. ft. per month would be made for every month of delay. It is stated that if the same amount is calculated it would approximately be 1.4% p.a. rate of interest. Even these charges were to be paid after the period that is taken by the Opposite Parties to construct the floors as per the Buyer's Agreement. It is pleaded that the Opposite Parties are raising funds at the interest rate of 1.4% p.a. while charging compounded interest @ 18% p.a. quarterly for any kind of delayed payment by the flat purchasers, which amounts to unfair trade practice. Despite repeated requests and also an e-mail addressed to the First Opposite Party on 28.04.2017, the Complainant did not receive any response. Vexed with their attitude, the Complainant approached this Commission seeking refund of the amounts paid with interest @ 18% p.a. from the respective dates of deposits till the date of realization together with compensation of ₹5,00,000/- and costs.
5. The First Opposite Party filed their Written Version on 14.11.2017 stating that the Project "SKYZ" consists of nine towers and is being developed by the Opposite Parties on the land situated in Sector 37-D, Gurgaon, Haryana having an area of approximately 60.5112 acres of continuous land, the mutation whereof was also sanctioned in their favour in accordance with law by the Patwari Villagle Gadauli Kalan, Tehsil District Gurgaon, Haryana. The Opposite Parties also obtained license from DGTCP vide memo No. 33 of 2008 dated 19.02.2008 which was later on renewed by way of a letter bearing reference No. LC-1608-JE(B)-2010/207 dated 07.01.2011 renewed upto date. It is averred that the Complainant booked an apartment in this residential complex and applied for the provisional allotment on 24.07.2011 by paying an advance amount of ₹6,01,346/- and an Allotment Letter was issued for flat No. 903 located on the 9th admeasuring 1750 sq. ft. with parking space in block-E for a total consideration of ₹71,87,959/-. An Apartment Buyer Agreement was entered into for a total sale consideration of ₹71,87,959/-. The Complainants never objected to the terms and conditions of the Apartment Buyer Agreement and, therefore, now cannot raise any objection with respect to the clauses. As per Clause 15(a) of the Agreement, the Apartment was reasonably expected to be delivered by 31.08.2014, subject to Clause 31 of the Agreement, whereby the date of possession shall get extended automatically if the completion of the Complex including the Apartment is delayed by reason of non-availability of steel and/or cement or other building materials, or water supply or electric power or slow down, strike or, lock-out or civil commotion or by reason or war or enemy action or terrorist action or earthquake or any act of God or due to any act, notice, order, rule or notification of the government and/or any other Public or Competent authority or due to delay in sanction of any revised building/zoning plans or for any other reasons beyond the control of Developers, the Allottee agrees that the Developers shall be entitled to the extension of time for handing over of the possession of the said Apartment/Unit."
6. It is averred that the delay in delivering the possession of the Apartment is only because of reasons beyond their control and, therefore, the above Clause automatically is applicable and the date of possession shall get extended automatically. The parties had mutually agreed vide Clause 17(a) that in the eventuality of delay in handing over possession beyond the period stipulated in Clause 15(a) of the Agreement, the allottee will be compensated with ₹5/- per sq. ft. per month of Super Area. It is averred that vide Clause 31 of the Agreement that the parties have further agreed to Force Majeure circumstances which in the instant case prevented the Opposite Parties from meeting the construction schedule and, therefore, no deficiency of service can be attributed to the Opposite Parties. It was also pleaded that time is not the essence of the contract and that the words 'proposed to hand over possession' in Clause 15(a) itself denotes that time was never the essence of the contract.
7. It is stated that the shortage of labour/work force, extreme water shortage, the restraint use of ground water, shortage of supply of construction material leading to increase in the cost of material all are force majeure circumstances.
8. It is stated that the parties agreed and quantified ₹5/- per sq. ft. per month to be the genuine pre-estimate of the damages suffered on account of delay in offering possession of the flat and, therefore, Complainants are not entitled to claim interest @ 18% p.a. It was also stated that Clause 37 of the Agreement stipulates that arbitration shall be the sole and exclusive procedure for resolving the dispute and, therefore, the Complainants ought not to have approached the Consumer Fora.
9. It is also averred that the Complainants are not Consumers as they intend to purchase the Apartments for commercial purpose; that the Complainants failed to disclose that certain instalments payable by them are due and outstanding and that if this Commission directs refund of the amount to even a single buyer it prejudices the entire Project as the real estate market is going through a rough phase. It is pleaded that there is no deficiency of service on their behalf and they seek dismissal of the Complaint with costs.
10. The Second Opposite Party filed their Written Version on 23.03.2018 stating that they had engaged the First Opposite Party for the construction and developement of the Project pursuant to which the First Opposite Party is responsible for undertaking complete construction and implementation of the project "SKYZ". In consideration of the services of the First Opposite Party, the second Opposite Party had agreed to share the revenues generated out of the Project with the First Opposite Party and accordingly a Joint Development Agreement (JDA) dated 28.06.2011 was executed between the First Opposite Party and the Second Opposite Party which is also referred to in the Purchaser's Agreement dated 08.11.2011. It is averred that the delay in handing over the possession of the Apartment was on account of the circumstances beyond the control of the Opposite Parties and despite expressly agreeing in the Apartment Buyers Agreement for an extension of time period for handing over of the possession of the said Apartment in such contingencies by the Opposite Parties. It is stated that no amounts have been misappropriated and all the monies were utilized for the benefit of the Project. It is averred that the Complainants had agreed to the terms in the Builder Buyers Agreement with respect to the Clause 13, Clause 15(a) & (b), Clause 17(a) and Clause 31 which for the sake of brevity are not being repeated as the same have already been stated in the Written Version of the First Opposite Party. It is stated that this Commission does not have the pecuniary jurisdiction to entertain the matter as the Complainants have clubbed interest @ 18% p.a. which is exorbitant; that the delay in handing over of the flat does not amount to unfair trade practice; that compensation, if any, has to be paid at ₹5/- per sq. ft. per month of the Super Area which has been agreed to by both the parties; that Complainants have not availed any home loan and have purchased the said Apartments only for the purpose of commercial gain; that the delay in the Project is for the reasons beyond the control of the Opposite Parties and there is no negligence on their behalf.
11. The Second Opposite Party filed I.A. bearing No. 22549 of 2018 seeking deletion of their names from the array of Memo of Parties on the ground that there is no privity of contract between them and the Complainants. This Application was dismissed vide Order dated 18.01.2019 observing that in the Written Version the Second Opposite Party itself pleaded that there was a Joint Development Agreement entered into between both the Opposite Parties and that the revenues were being shared. Paragraph 3 of the Application was placed reliance on, while dismissing the same. Thereafter a Review Application bearing No. 129 of 2019 was filed, which was also dismissed.
12. The Complainants have filed Annexure-A (Buyer's Agreement), Annexure-B (Statement of Accounts and Demands along with interest calculation sheet), Annexure-C (construction update from the website of the Developer) and Annexure-D (Correspondence with builder) in support of their case.
13. The First Opposite Party also filed Annexure R1 (copy of the order dated 16.07.2012 passed by the Hon'ble High court of Punjab and Haryana) and Annexure R2 (Copy of Memo No. 2524 dated 01.09.2012 from the Deputy Commissioner, Gurgaon, Haryana) in support of their case. The Second Opposite Party has not filed any documents by way of evidence.
14. Heard the parties at length. Learned Counsel appearing for the Complainants submitted that till date the construction is incomplete despite the fact that the Complainants have paid a substantial amount of money. The Counsel filed a table detailing the amounts paid by each Complainant together with the dates of the Builder Buyer Agreement which is re-produced as hereunder:-
S. No.
CC NO.
Date of filing of Complaint
Name of the Complainant
Unit Details
Area (Sq. ft.)
BBA Date
Date of possession
Total Sale consideration
Amount paid
Name of the Bank
Rate of Interest
1
2384/2017
16/08/17
Mohit Kumar
Unit No. 0903, floor 09, Block E
1750
8/11/11
31/8/14
71,87,959/-
62,85,672/-
HDFC
10.10%
2
2385/2017
16/08/17
Neeraj Kumar
Unit No. 0203, floor 02, Block D
1750
29/11/11
31/8/14
69,32,219/-
60,96,684/-
N/A
--
3
3006/2017 11/10/17 Nilutpol Unit No. 1001, floor 10, Block E 1725 5/9/11 31/8/14 68,24,258/-
59,91,514/-
SBI 10.50% 4 3007/2017 11/10/17 Vidya Kulkarni Unit No. 0104, floor 01, Block C 1725 5/7/12 31/8/14 70,14,525/-
61,40,241/-
N/A
--
53008/2017 11/10/17 Baldev Godara Unit No. 0404, floor 04, Block H 2025 18/1/12 31/8/14 79,57,568/-
71,10,896/-
OBC 10.10% 6 3652/2017 11/12/17 Varun Aggarwal Unit No. 1402, floor 14, Block C 1750 16/10/12 31/8/14 69,18,700/-
59,72,918/-
73653/2017 11/12/17 Rajesh Kumar Unit No. 0403, floor 04, Block A 1750 20/10/11 31/8/14 79,17,503/-
71,27,553/-
HDFC 10.75% 8 3654/2017 11/12/17 Ved Prakash Unit No. 0901, floor 09, Block E 1750 5/9/11 31/8/14 71,87,959/-
62,75,280/-
HDFC 10.75%
15. He submitted that the Complainants have taken Bank Loans with floating rate of interest and since the construction is still not complete, the Complainants sought for refund of the amounts paid with the same rate of interest which is being charged by the Opposite Parties for any delay in the payments.
16. Learned counsel appearing for the first Opposite Party vehemently argued that as per Clause 15 (a) the time for handing over of possession was 31.08.2014 and the Developer is entitled to grace period of 120 days for applying and obtaining the Occupancy Certificate and that this period needs to be excluded; that Clause 15 (b) stipulates that subject to Clause 31, the date of possession shall get extended automatically; that as per Clause 15 (b) (1) if the Completion of the project is delayed by reason of non-availability of steel and or cement and other building material or water or power or slow down or any terrorist action or earthquake or any order or rule or notification of the Government under any public or competent authority or due to delay in obtaining sanctions or for any reason beyond the control of the Developer, the flat purchaser agrees that the Developer is entitle to extension of time; that Clause 31 specifically mentions Force Majeure conditions which are beyond the control of the Developer and therefore the Developer is entitled to extension of time since it was specifically pleaded in the Written Version that there was extreme water shortage and availability of water and therefore it squarely falls under Clause 15 (b)(i) and Clause 31.
17. Learned counsel also submitted that the Complainant is barred by pecuniary jurisdiction as the interpretation given in Consumer Complaint No. 97/2016 - Ambrish Kumar Shukla & Ors. Vs. Ferrous Infrastructure Pvt. Ltd. has been referred to a still larger Bench of five members and is pending; that the order dated 18.12.2017 of the NGT has also delayed the completion of the project and falls within the Force Majeure condition; that the Complainants have not pleaded the bank loan details in the main Complaint; that an IA/20867/2018was filed seeking details of the property of the Complainants and no details regarding any loans taken or rents paid was subsequently mentioned in the replied to the IA; that in one Complainant's case the rent details was only given for the years 2017-2018 and the details for the period prior to 2017 i.e. specifically from 2011 to 2017 is absent and rent receipts are also not filed; that the Hon'ble Supreme court in Ghaziabad Development Authority Vs. Balbir Singh (2004) 5 SCC 65, has categorically held that interest and possession should depend on the facts of each case. He drew our attention to paragraphs 8, 14 and 25 of the aforenoted judgement, wherein it is observed as follows:
"8. However, the power to and duty to award compensation does not mean that irrespective of facts of the case compensation can be awarded in all matters at a uniform rate of 18% per annum. As seen above what is being awarded is compensation i.e. a recompense for the loss or injury. It therefore necessarily has to be based on a finding of loss or injury and has to correlate with the amount of loss or injury. Thus the Forum or the Commission must determine that there has been deficiency in service and/or misfeasance in public office which has resulted in loss or injury. No hard and fast rule can be laid down, however a few examples would be where an allotment is made, price is received/paid but possession is not given within the period set out in the brochure. The Commission/Forum would then need to determine the loss. Loss could be determined on basis of loss of rent which could have been earned if possession was given and the premises let out or if the consumer has had to stay in rented premises then on basis of rent actually paid by him. Along with recompensing the loss the Commission/Forum may also compensate for harassment/injury both mental and physical. Similarly, compensation can be given if after allotment is made there has been cancellation of scheme without any justifiable cause.
14. .......... "8. The words 'interest' and 'compensation' are sometimes used interchangeably and on other occasions they have distinct connotation. 'Interest' in general terms is the return or compensation for the use or retention by one person of a sum of money belonging to or owed to another. In its narrow sense, 'interest' is understood to mean the amount which one has contracted to pay for use of borrowed money. ... In whatever category 'interest' in a particular case may be put, it is a consideration paid either for the use of money or for forbearance in demanding it, after it has fallen due, and thus, it is a charge for the use or forbearance of money. In this sense, it is a compensation allowed by law or fixed by parties, or permitted by custom or usage, for use of money, belonging to another, or for the delay in paying money after it has become payable."
In this case it is also observed that the Reserve Bank of India has supervisory role over banking. It is observed that Reserve Bank of India has been issuing directions/circulars dealing with rates of interest. It is held that the Reserve Bank of India circulars can be treated as standards regarding rates of interest.
25. Another point also requires consideration at this stage. In the lead Judgment the National Commission has held that no interest is payable for the period 24/4/1991 to 16/12/1993 as during that period there was a stay order passed by the Allahabad High Court in operation. Some of the allottees have filed Appeals challenging that portion of the Order. It is contended, on their behalf that there was no stay order in respect of the plots allotted to them. It was contended that the authority cannot justify non-delivery to them. As against this it is pointed out that this Court has already in the case of G.D.A. vs. Sanchar Vihar Sahkari Avas Samiti Ltd. reported in (1996) 9 SCC 314 upheld the view of the National Commission in refusing interest or damages for the period during which the stay operated. It is also pointed out that the Commission had deputed the Vice-Chairman to enquire and report whether the authority was prevented from delivering possession to all due to the stay order. It is pointed out that the Vice-Chairman had submitted a Report pointing out that even though the stay Order was not in respect of all plots, yet the authority could not deliver possession of any plot as well the pipelines and other infrastructural work had to be taken through the plots in respect of which the stay Order operated. As per the Report of the Vice Chairman the authority was prevented, by the stay Order, from delivering possession to anybody. The National Commission has accepted this Report. We see no reason to take a different view, particularly when another Bench has already refused to interfere on this aspect."
18. Learned counsel appearing for the first Opposite Party also relied on the judgement of this Commission in CC/315/2014 between Sh. Pradeep Narula & Anr. Vs. M/s Granite Gate Properties Pvt. Ltd. & Anr., in which it is observed that wherever the builder commits a particular date or time frame for completion of the construction and offering possession to the buyers, he must necessarily honour the commitment made by him, though a minor delay may not constitute deficiency in the service rendered by him to the buyer. Of course, if the builder is able to show that the delay in completion of construction and offering possession to the buyer is attributable wholly to the circumstances beyond his control, that may not be a case of deficiency in the services rendered to the consumer. He vehemently contended that interest @ 18% p.a. as prayed for by the Complainant cannot be awarded as difference in the market price is to be taken into consideration and the Hon'ble Supreme Court in judgement dated 02.04.2019 Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan (CIVIL APPEAL NO. 12238 OF 2018), has confirmed the judgement of this Commission in awarding simple interest @ 10.7%. Learned counsel further submitted that the Complainants themselves have made offer of settlement with interest @ 10% which was recorded by this Commission in the order dated 23.03.2018.
19. Learned Counsel appearing for the Second Opposite Party vehemently contended that the Complainants are not consumers; that this Commission does not have the pecuniary jurisdiction to entertain the Complaint as the amounts claimed by the Complainants included interest at an exorbitant rate of interest @ 18% whereas it ought to have been calculated @ 12% p.a.; that the Order dated 07.10.2016 of Three-Member Bench of this Commission in Ambrish Kumar Shukla (supra) is being reconsidered by a Still Larger Bench; that Haryana Regulatory Authority stipulates the interest rate @ SBI Bank rate plus 2%; that the date for completion as per RERA has been extended to 31.01.2020; that the refund shall be granted only after 31.03.2010; that the Project was 93% completed; that the Opposite Parties have taken steps to continuously maintain a dialogue with the flat purchasers and that the promised date of delivery of possession namely 31.08.2014 is not a sacrosanct date. He further argued that the Project will be complete within six months and the flat purchasers will be offered possession during that period of time.
20. The facts not in dispute are that the Complainants entered into a Builder Buyers Agreement on 08.11.2011; that the total sale consideration was ₹71,87,959/-; that an amount of ₹62,85,672/- was already paid for flat No. 0903 admeasuring 1750 sq. ft. and as per the Clause 15(a) of the Builder Buyers Agreement the time for handing over the possession of the apartment was 31.08.2014.
21. The contention of the Learned Counsel that the said Apartments were purchased for commercial purpose is not supported by any documentary evidence as the onus shifts to the Opposite Parties to establish that the Complainants have purchased the same to indulge in 'purchase and sale of flats' as was held by this Commission in Kavita Ahuja vs. Shipra Estates I (2016) CPJ 31
22. It is the case of the Opposite Parties that Clause 15(a) is subject to Clause 31. It is specifically pleaded in the Written Version that at the time of handing over of the delivery was extended in terms of Clause 31 of the Builder Buyers Agreement. For better understanding of the case, the said Clauses are being reproduced as hereunder:-
"15. POSSESSION
(a) Time of handing over the Possession Subject to terms of this Clause and subject to the Allottee having complied with all the terms and condition of this Agreement and the Application, and not default under any of the provisions of this Agreement and compliance with all provisions, formalities, documentation etc., as prescribed by the Developers. Developers propose to hand over the possession of the Apartment by 31-Aug-2014. The Allottee agrees and understands that the Developers entitled to a grace period of hundred and twenty(120) days, for applying and obtaining the occupation certificate in respect of the Group Housing Complex.
(b) Subject to Clause 31, in the following circumstances, the date of possession shall get extended automatically:
(i) If the completion of the Complex including the Apartment is delayed by reason of non-availability of steel and/or cement or other building materials, or water supply or electric power or slow down, strike or lock-out or civil commotion or by reason of war or enemy action or terrorist action or earthquake or any act of God or due to any act, notice, order, rule or notification of the government and/or any other Public or Competent authority or due to delay in sanction of any revised building/zoning plans or for any other reasons beyond the control of Developers, the Allottee agrees that the Developers shall be entitled to the extension of time for handing over of the possession of the said Apartment/Unit.
31. FORCE MAJEURE The Developers shall not be held responsible or liable for not performing any obligation or undertaking provided for in this Agreement if such performance prevented, delayed or hindered by act of god, fire, flood, explosion, war, riot, terrorist act, sabotage, inability to procure or general shortage of energy, labour equipment facilities, materials or supplies, failure of transportation, strikes, lack outs, action of labour unions, change in law or any other cause not within reasonable control of the Developers." (Emphasis Supplied).
23. In the instant case the material on record does not establish that the reasons given by the Opposite Parties would fall within the scope and definition of 'Force Majeure '. Additionally, there is no documentary evidence to support the contention of the Opposite Parties that the reasons pleaded by them, can be construed as 'Force Majeure.'
24. A perusal of the record shows that the payment plan was construction-linked and the schedule of the same is reproduced as hereunder:-
Flat No. E-903 Particulars Amount Area(Sq. Ft.) 1750 Basic Price/Sq. Ft:3350
Covered Car Parking 300,000 EDC 300 IDC 35 IFMS 50 PLC(if Applicable) 100 Service Tax S. No. Stages Payment Instalment 1 On Booking 10% of Basic Sale Price 601,346 2 Within 30 days of booking 7.5% of Basic Sale Price 451,009 3 Within 60 days of booking 7.5% of Basic Sale Price 451,009 4 On Invoicing for start of construction 5% of Basic Sale Price+50% of EDC+IDC 593,798 5 On Invoicing for completion of foundation 5% of Basic Sale Price+50% of EDC+IDC 593,798 6 On Invoicing for completion of basement roof 5% of Basic Sale Price+50% cost of parking 454,535 7 On Invoicing for completion of 2nd floor roof slab 5% of Basic Sale Price+50% cost of parking 454,535 8 On Invoicing for completion of 4th floor roof slab 5% of Basic Sale Price+50% of PLC if applicable.
397,185 9 On Invoicing for completion of 6th floor roof slab 5% of Basic Sale Price+50% of PLC if applicable.
397,185 10 On Invoicing for completion of 8th floor roof slab 5% of Basic Sale Price 300,673 11 On Invoicing for completion of 10th floor roof slab 5% of Basic Sale Price 300,673 12 On Invoicing for completion of 12th floor roof slab 5% of Basic Sale Price 300,673 13 On Invoicing for completion of 14th floor roof slab 5% of Basic Sale Price 300,673 14 On Invoicing for completion of 16th floor roof slab 5% of Basic Sale Price 300,673 15 On Invoicing for completion of 18th floor roof slab 5% of Basic Sale Price 300,673 16 On Invoicing for completion of flooring and wall painting 5% of Basic Sale Price 300,673 17 On Invoicing for receipt of occupation certificate 5% of Basic Sale Price 300,673 18 On Invoicing for possession 5% of Basic Sale Price+IFMS 300,673 Total 7,187,959 Note Service Tax as Applicable.
25. From the afore-noted schedule it is crystal clear that the payments are construction-linked and, therefore, the contention of the Opposite Parties that there are still some amounts due and payable, is totally unacceptable. For the latches of the Opposite Parties, the Complainant cannot be made to suffer. Learned Counsel appearing for the Opposite Parties vehemently contended that they are registered under RERA and the date for completion as per RERA is 31.03.2020 and that the refund, if any, should be allowed only after 31.03.2020. This Commission vide its order dated 15.04.2019 passed in CC/1764/2017 Ajay Nagpal Vs. Today Homes and Infrastructure Pvt. Ltd. (and in other connected matters) has laid down that RERA does not bar the jurisdiction of Consumer Fora.
26. The order of the NGT dated 18.12.2017, is subsequent to the filing of this Complaint and therefore this order cannot be construed to be a 'Force Majeure' condition for the delay between 31.08.2014 till the date of filing of the Complaint. As regarding the Bank loan details, during the course of final arguments, Learned Counsel appearing for the Complainant filed a statement of each Complainant regarding the Bank loan details and the interest rate charged which is reflected in the table in para No. 13.
27. As regarding the submission of the learned counsel for the Opposite Parties that these Complaints are barred by pecuniary jurisdiction and that the interpretation given in Ambrish Kumar Shukla (Supra) was referred to a larger Bench and therefore these matters should also be tagged therein is completely untenable as interpretation given to Section 17 regarding pecuniary jurisdiction as on today still holds and taking into consideration the value of the goods and services and the compensation claimed in each case exceeds one crore and therefore this Commission has the pecuniary jurisdiction to entertain this Complaint.
28. We also find it a fit case to place reliance on the Judgement of the Hon'ble Supreme Court in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra Civil Appeal No. 3182/2019 wherein the Hon'ble Apex Court has laid down as follows:-
"A buyer can be expected to wait for possession for a reasonable period. A period of seven years is beyond what is reasonable. Hence, it would have been manifestly unfair to non-suit the buyer merely on the basis of the first prayer in the reliefs sought before the SCDRC. There was in any event a prayer for refund."
29. Learned Counsel submitted that interest @ 18% p.a. cannot be awarded despite the fact that the Developer charges 18% interest p.a. on delayed payment, taking into consideration that the Hon'ble Apex Court in a catena of judgements has been awarding lower interest keeping in view the change in the economy and the real estate market together with policy of RBI.
30. The contention of the Learned Counsel for the Opposite Parties that if refund is being allowed then interest has to be awarded keeping in view the principles laid down by the Hon'ble Supreme Court in Ghaziabad Development Authority Vs. Balbir Singh (supra) is also being taken into consideration. In this case the Hon'ble Supreme Court has observed that power to and duty to award compensation does not mean that irrespective of the facts of the case compensation can be awarded in all matters at the uniform rate of 18% p.a. Though we agree with the submission of the Learned Counsel for the First Opposite Party that there can be no hard and fast rule while awarding compensation, we should also keep in view the principles of restitutio in integrum which provides that a person entitled to damages should, as nearly as possible, get that sum of money which would put him in the same position as he would have been if he had not sustained the wrong.
31. Needless to add, though the learned counsel for the first Opposite Party offered to settle the matter with refund of principal amount with 10% interest rate, Learned counsel for the Complainants, on instructions from the Complainants, who are present in person submitted that more than a year had lapsed since the offer was made by them which was not accepted by the Opposite Parties at that point of time and today the Complainants are not willing to accept the same and seek interest @ 12% p.a. as was awarded by this Commission in similar matters.
32. This interest @ 12% p.a. is being awarded taking into consideration that most of the flat purchasers have taken bank loans and they are paying interest @ 10.75% p.a. Complainants are also present in person and have reiterated that the interest rate in CC No. 3653 and 3654 of 2017, paid by the flat purchasers is 10.75% p.a. We also take into consideration that the other flat purchasers were paying interest rates @ 10.10% and 10.50%. We are of the considered view that no further amount is being awarded towards compensation for mental agony and financial losses coupled with the fact that the Complainants have waited for an inordinate period of time for compensation and have lost their dream of owning a house, and as only interest is being awarded by way of damages, with no additional amounts towards compensation, we are of the view that awarding interest @ 12% p.a. would meet the ends of justice.
32. Hence this Complaint is allowed directing the Opposite Parties jointly and severally to refund the principal amounts with simple interest @ 12% p.a. from the respective dates of deposit till the date of realisation together with costs of ₹25,000/-. Time for compliance four weeks from the date of receipt of a copy of this order, failing which, the amount shall attract interest @ 14% p.a. for the same period.
Consumer Complaint No. 2385 of 2017 Neeraj Kumar and Suresh Kumar booked a Flat No. 0203, Floor 02, Block D of 1750 sq. ft. in the Project 'SKYZ' situated in RP City, Sector 37D, Gurgaon, Haryana and entered into a Builder Buyer's Agreement dated 29.11.2011, paying a total amount of ₹60,96684/- and the promised date for delivery of possession was 31.08.2014. For all the aforenoted reasons in Consumer Complaint No. 2384 of 2017, this Complaint is allowed in part and the Opposite Parties are directed to refund the amounts paid along with simple interest @ 12% p.a. from the respective dates of deposit till the date of realisation together with costs of ₹25,000/-. Time for compliance four weeks from the date of receipt of a copy of this order, failing which, the amount shall attract interest @ 14% p.a. for the same period.
Consumer Complaint No. 3006 of 2017 Nilutpol Borah and Amrit Bhasin booked a Flat No. 1001, Floor 10, Block E of 1725 sq. ft. in the Project 'SKYZ' situated in RP City, Sector 37D, Gurgaon, Haryana and entered into a Builder Buyer's Agreement dated 05.09.2011, paying a total amount of ₹59,91,514/- and the promised date for delivery of possession was 31.08.2014. For all the aforenoted reasons in Consumer Complaint No. 2384 of 2017, this Complaint is allowed in part and the Opposite Parties are directed to refund the amounts paid along with simple interest @ 12% p.a. from the respective dates of deposit till the date of realisation together with costs of ₹25,000/-. Time for compliance four weeks from the date of receipt of a copy of this order, failing which, the amount shall attract interest @ 14% p.a. for the same period.
Consumer Complaint No. 3007 of 2017 Vidya Kulkarni booked a Flat No. 0104, Floor 01, Block C of 1725 sq. ft. in the Project 'SKYZ' situated in RP City, Sector 37D, Gurgaon, Haryana and entered into a Builder Buyer's Agreement dated 05.07.2012, paying a total amount of ₹61,60,241/- and the promised date for delivery of possession was 31.08.2014. For all the aforenoted reasons in Consumer Complaint No. 2384 of 2017, this Complaint is allowed in part and the Opposite Parties are directed to refund the amounts paid along with simple interest @ 12% p.a. from the respective dates of deposit till the date of realisation together with costs of ₹25,000/-. Time for compliance four weeks from the date of receipt of a copy of this order, failing which, the amount shall attract interest @ 14% p.a. for the same period.
Consumer Complaint No. 3008 of 2017 Baldev Godara and Vandana Godara booked a Flat No. 0404, Floor 04, Block H of 2025 sq. ft. in the Project 'SKYZ' situated in RP City, Sector 37D, Gurgaon, Haryana and entered into a Builder Buyer's Agreement dated 18.01.2012, paying a total amount of ₹71,10,896/- and the promised date for delivery of possession was 31.08.2014. For all the aforenoted reasons in Consumer Complaint No. 2384 of 2017, this Complaint is allowed in part and the Opposite Parties are directed to refund the amounts paid along with simple interest @ 12% p.a. from the respective dates of deposit till the date of realisation together with costs of ₹25,000/-. Time for compliance four weeks from the date of receipt of a copy of this order, failing which, the amount shall attract interest @ 14% p.a. for the same period.
Consumer Complaint No. 3652 of 2017 Varun Aggarwal booked a Flat No. 1402, Floor 14, Block C of 1750 sq. ft. in the Project 'SKYZ' situated in RP City, Sector 37D, Gurgaon, Haryana and entered into a Builder Buyer's Agreement dated 16.10.2012, paying a total amount of ₹59,72,918/- and the promised date for delivery of possession was 31.08.2014. For all the aforenoted reasons in Consumer Complaint No. 2384 of 2017, this Complaint is allowed in part and the Opposite Parties are directed to refund the amounts paid along with simple interest @ 12% p.a. from the respective dates of deposit till the date of realisation together with costs of ₹25,000/-. Time for compliance four weeks from the date of receipt of a copy of this order, failing which, the amount shall attract interest @ 14% p.a. for the same period.
Consumer Complaint No. 3653 of 2017 Rajesh Kumar and Shilpi booked a Flat No. 0403, Floor 04, Block A of 1750 sq. ft. in the Project 'SKYZ' situated in RP City, Sector 37D, Gurgaon, Haryana and entered into a Builder Buyer's Agreement dated 20.10.2011, paying a total amount of ₹71,27,553/- and the promised date for delivery of possession was 31.08.2014. For all the aforenoted reasons in Consumer Complaint No. 2384 of 2017, this Complaint is allowed in part and the Opposite Parties are directed to refund the amounts paid along with simple interest @ 12% p.a. from the respective dates of deposit till the date of realisation together with costs of ₹25,000/-. Time for compliance four weeks from the date of receipt of a copy of this order, failing which the amount shall attract interest @ 14% p.a. for the same period.
Consumer Complaint No. 3654 of 2017 Ved Prakash booked a Flat No. 0901, Floor 09, Block E of 1750 sq. ft. in the Project 'SKYZ' situated in RP City, Sector 37D, Gurgaon, Haryana and entered into a Builder Buyer's Agreement dated 05.09.2011, paying a total amount of ₹62,75,280/- and the promised date for delivery of possession was 31.08.2014. For all the aforenoted reasons in Consumer Complaint No. 2384 of 2017, this Complaint is allowed in part and the Opposite Parties are directed to refund the amounts paid along with simple interest @ 12% p.a. from the respective dates of deposit till the date of realisation together with costs of ₹25,000/-. Time for compliance four weeks from the date of receipt of a copy of this order, failing which the amount shall attract interest @ 14% p.a. for the same period.
......................J R.K. AGRAWAL PRESIDENT ...................... M. SHREESHA MEMBER