1.         The present Consumer Complaint (CC) has been filed by the Complainants against Opposite Parties (OPs) as detailed above, inter alia praying for directions to the OP(s) to:-

(i)        pay the claim in the sum of Rs.68,94,116/- to complainants (i.e. Rs.67,65,191/- paid + Rs.1,28,925/- incurred for the registration of the Agreements) along with interest of Rs.37,17,682/- up till 29.02.2020 totalling to Rs.1,06,11,798/- with future pendent lite interest @24% per annum upon the said amount to the Complainants.   

(ii)       pay Rs.10,00,000/- towards humiliation, harassment, torture and mental tension, pain and agony suffered by the complainant due to negligence, deficiency in service, criminal breach of trust and false commitment made by the OP to the complainants.

(iii)      pay a sum of Rs.6,60,000/- for cost of proceedings and allied/miscellaneous expenses to the complainants.

2.         Notice was issued to the OP(s). Parties filed Written Statement/Reply, Rejoinder, Evidence by way of an Affidavit and Written Arguments/Synopsis etc. as per details given in the Table below:

3.         Brief facts of the case, as presented by the Complainants and as emerged from the pleadings of the parties and other case records are that: -

ADD-ALBATROS Properties Pvt. Ltd. (OP-2), the Land Owner, executed Power of Attorney in favour of “EMAMI Reality Ltd. (OP-1), builder developer after entering into a Joint Development Agreement on 31.03.2014.  The complainants (husband & wife) booked Flat No. 603 in the project of OP-1, namely “Emami Tejomaya” on the assurance of the OP that possession of the Flat will be given on or before 31.07.2018, or latest by 31.10.2018, the extended grace period.  The complainants paid an initial amount of Rs.2,00,000/-, receipt dated 28.03.2016 was given by the OP and confirmed the allotment of the Flat through Provisional Allotment Letter dated 01.04.2016, enclosing therewith an undated & signed Payment Schedule.   The Complainants paid 84 ½ % of the project cost/value of the Flat amounting to Rs.67,65,191.95 (inclusive of TDS) till 21.10.2017 as per receipts and have also incurred a sum of Rs.1,28,925/- for the registration of Agreement to Sell’ and Construction Agreement’.  The registration of Agreement was deferred by the OP and got registered on 17.04.2017 after receiving 50½% value of Flat to the tune of Rs.40,04,220/- (inclusive of TDS) leaving no option/choice and no scope of discussion or variation in the terms of the Agreement but to sign the Agreement without modifying it or even deliberating it.  Agreements were not made available to the complainants nor the terms of these Agreements were explained at the time of booking and/or issuing ‘Provisional Allotment Letter’.  Despite of making 84½% payment  of the consideration amount, flat has not been delivered.  Hence, the complainants have filed complaint before this Commission.

4.         The OP(s) in their written statement/reply stated that:

(i)        The complaint is misconceived, bad in law and deserves to be dismissed.  The complaint does not fall within the pecuniary jurisdiction of this Commission. Section 21 of the Consumer Protection Act, 1986 provides that the pecuniary jurisdiction of this Commission, for entertaining an original complaint, is ‘where the value of the goods or services and compensation, if any, claim exceeds rupees one crore’. The value of the flat comes to Rs.78,78,490/-.  In support of their contention, the OPs have placed   reliance upon the judgment passed in Ambrish Kumar Shukla & Ors. V. Ferrous Infrastructure Pvt. Ltd. & Ors., 2016 SCC Online NCDRC 1117 and the said judgment was clarified by a 5 Judge Bench of this Commission in its recent judgment dated 26.10.2021 in the case of Renu Singh & Ors. v. Experion Developers Pvt. Ltd. & Ors. CC No. 1703/2018.

(ii)       The complainants have never made any demand from the OPs in respect of the subject flat. Without prejudice to the rights and contentions of the OPs, the flat No. A-603 in Emami-Tejomaya is ready and available for possession, provided the complainants are ready and willing to pay the balance consideration.

(iii)     Prior to filing the present complaint the Complainants filed CC No. 250 of 2019 alongwith another complaint, one V.Mullai Malaran, who also had purchased a flat in the subject project.   The third complainant V. Mullai Malaran has taken possession on 14.07.2020 by paying the balance consideration amount, without any further objection and not sought any compensation. The OPs are ready and willing to give possession of the subject flat to the complainants, subject to payment of the balance 15.5% of the consideration amount by the complainants.

(iv)      It is clarified that in terms of the JDA dated 31.03.2014, the date of completion of the project was 31.03.2019, along with a grace period of 6 months i.e. 30.09.2019.  In terms of the JDA and in compliance of the requirement under the RERA Act, 2016, the OPs completed the project on September, 2019 and obtained the completion certificate from the competent Authority on 10.09.2019.  The OPs have been informed by the TNRERA that their completion of Project has been well within the timeline of completion and so no delay in such regard is being shown as per their records. 

(v)       it is also averred that the complainants have never raised any objections with the OPs  as regards the terms and conditions mentioned in the provisional allotment letter as well as the agreement to sell and the construction agreement.  It is improper to allege, after a passage of 3 years, that the terms and conditions were non-negotiated and unreasonable. Till date the complainants have not raised any demand with the OPs as regard breach of the terms of the Agreement to Sell and the Construction Agreement. The complainants unilaterally stopped paying any amount post 21.10.2017, without raising any demand for possession of the flat, or raising any objection to the nature of construction.  Without making any claim with the OP Developer, filing the complaint is nothing but an abuse of process to wriggle out of their obligation to pay balance consideration amount. 492 customers have taken possession of their respective flats and started residing in the subject project, without any objection to the quality of construction and facilities provided.

(vi)      It is averred that the little delay has been caused for completion of the project, in attributable to reasons beyond the control of the OPs.  At the very inception of the project, in the year 2016, first in the month of May, there were torrential rainfall resulting in flooding in Chennai and then in the month of November/December the cyclone Vardah stuck the city of Chennai, where the project is situated, resulting in delay in commencement of the project.  The project was completed within the prescribed period (along with the permissible grace period).  In terms of the construction agreement with the Complainant and other flat buyers the agreed date of giving possession was 31.07.2018.  Even taking this date into consideration, the project  was delayed by  only one year, which in the current financial condition of the real estate industry, is not excessive and condonable.

5.         Complainant in his rejoinder stated that:

The Complainants are within their right to seek refund of the amount with interest from the OPs as the OPs have acted malafidely and they have committed not only deficiency but also the mal practices as well as cheating with the complainants as they failed to allot the units to the complainants within the agreed period despite receipt of huge consideration amount but failed to allot and hand over the possession of the unit to the Complainant despite passing of about 6 years i.e. much beyond the agreed period.It is further averred that the OPs have failed to disclose as to how this Commission does not have the pecuniary jurisdiction to try and decide the complaint. The complainants have filed the claim in the tune of Rs.1,06,11,798/- with future and pendentliteinterest and damages on account of humiliation, harassment, torture etc. and cost.The judgments and case laws as referred by the Respondents in their reply are not attracted to the four corners of the present case.The OPs failed to offer and hand over the possession of the flat to the complainants despite passing of considerable period as was agreed and undertaken by them, the purpose of booking of the residential units by the complainants stood frustrated and as such, the complainants were constrained to cancel the said booking. The OPs never gave any offer for allotment and handing over of the possession of the flat at any point of time despite passing of considerable period and this was led to cancellation of the flat/booking by the complainant as the purpose of their booking stood frustrated.

6.         Heard counsels of both sides.  Contentions/pleas of the parties, on various issues raised in the Complaint, based on their Complaint/Reply, Rejoinder, Evidence, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.

1. 1. 

   It is contended by the Complainants that they made all the due payment on time as and when demanded by the OPs and till date, the complainants had made more than 85% of total sale consideration for the booked unit till 21.10.2017.The complainants followed consistently for execution of necessary documents like Agreement to Sale/Construction Agreement etc. but despite repeated request the same were not executed till April, 2017 and before execution of such agreement, the same were never supplied to study the same.The OPs pressurized to the complainants to sign the same without any modification/changes in terms and conditions and get signed in printed forms only.Thereafter, the complainant waited for possession of booked flat as assured and committed at the time of acceptance of booking of said flat till July, 2018 but the progress of project was not upto satisfaction and even on the assured date of possession, the structure of building was not completed. It is further contended that the as the clause 12 of the Agreement to Sale dated 12.01.2017, in the event of any delay on the part of Purchaser in making payment, the purchaser agree to pay interest @18% p.a. to the owner for the actual period of delay which is arbitrary/illegal and is against the settled law of land.While in the clause of 2.09 of the Construction Agreement dated 12.01.2017 wherein in case of delay, the developer shall be liable to pay and allot shall be entitled to interest at the prevailing SBI MCLR rate for the actual period of delay which is clearly a violation of settled provisions of law of contract wherein the Hon’ble Apex Court as well as this Commission has settled the law by holding in numerous orders/judgments that builder/promoter/developer cannot have different set of norms/rules in single agreement and in case of breach of terms and conditions by either party. It is further contended that the developer failed to supply the copy of Occupation Certificate despite various requests.Non-supply of OC from the competent authority is clearly deficiency in service. It is also contended that Wing Commander Arifur Rahman Khan & Ors. Vs. DLF Southern Homes Pvt. Ltd. & Ors. And Pioneer Urban Land Infrastructure Ltd. v. Govindan Raghavan, the Hon’ble Supreme Court has held that the failure to obtain an OC or abide by contractual obligations amounts to a deficiency in service. It is also contended that the Hon’ble Supreme Court has settled the law in the matter of Fortune Infrastructure & Anr. Vs. Trevor D Lima & Ors. Civil Appeal No. 3522-3534 of 2017 that a person cannot be made to wait indefinitely for the possession of the flats allotted to them and they are entitled to seek the refund of the amount paid by them, along with compensation.

    

1. 2  On the other hand the OPs contended that the complainants inflated claim, lodged merely to bring the complaint within the pecuniary jurisdiction of this Commission.The Complainants have assumed high interest component of Rs.37,17,682/- calculating simple interest @18% p.a. on the claim amount of Rs.68,94,116/-.The only reason given by the complainants for levying this rate of interested is that the OPs had stated in the agreement that late payments would attract an interest rate of 18% p.a. and accordingly the OPs themselves would be liable to pay interest @18% p.a. on late delivery of possession etc. The OPs have relied upon a judgment of this Commission,in which the consumers approached this Commission with inflated claims, in Muneesh Malhotra v. Era Land Marks (India) Ltd. CC/1268/2015 decided on 15.12.2015.The OPs also relied upon the judgment in the matter of Jotica Sehgal Tower v. Parsvnath Developers Ltd. in CC No. 1682 of 2016 decided on 07.03.2017. It is further contended that without prejudice to the OPs’ contentions on merits, the claim of the Complainants may be examined keeping in view the ratio laid down by a 3-Judge Bench of the Hon’ble Supreme Court in its judgment dated 07.04.2022 in Experion Developers Pvt. Ltd. v. Sushma Ashok Shiroor, 2022 SCC Online SC 416, in which the Hon’ble Supreme Court held that a rate of 9% p.a. is fair and just in cases of restitution.In a number of cases Hon’ble Supreme Court has adopted 9% simple interest as a benchmark rate in refund cases – Reliance placed on 3-Judge Bench judgment of the Hon’ble Supreme Court in Ireo Grace Realtech v. Abhishek Khanna and Ors. (2021) 3 SCC 241. It is further contended that the complainants are not entitled to compensation for mental agony or cost of litigation. In support of this contention, the OPs have relied upon the decision of this Commission dated 24.10.2019 in CC No. 2083 of 2019 –Janhvi Mahi Selection v. New India Assurance and the judgment of Hon’ble Supreme Court in DLF Homes Panchkula v. D.S. Dhanda & Ors. (2020) 16 SCC 318 and judgment dated 17.11.2022 passed by this Commission in CC 368 of 2018 in Varun Goyal v. Suncity Pvt. Ltd. It is also contended by the OPs that the complainants have intentionally deceptively refused to take possession of their flat since September 2019.The Completion Certificates were issued by the competent authority on 18.02.2019 and 10.09.2019.It is further contended that on Mr. V. Mullai Malaran, who was co-complainant of the Complainants in an earlier consumer complaint being CC No. 250 of 2019 (which was subsequently withdrawn by the Complainants vide order dated 06.02.2020), has also taken over possession of his flat, after paying the outstanding amount payable. It is untrue for the complainants to state that they were never intimated about the completion of the project or that the OPs never informed the complainants that they should pay the remainder of the amount payable and take possession.The project was delayed owing to force majeure reasons beyond the control of the OPs, which has not been specifically denied by the Complainants.

7.         The contention of OPs that this Commission lacks pecuniary jurisdiction is not valid. Under Section 21 of the Act, Commission has the jurisdiction where value of goods and services and compensation, if any, claimed exceeds Rs. one crore.  The plea of OPs that delay was due to circumstances beyond their control is not valid as even after a gap of more than six (6) years  from the committed date given in the ABA, possession of flat has not been given, even no offer of possession has been made despite OP claiming to have obtained the OC on 10.09.2019. 

8.         In this case, the main prayer is for refund. Payment of Rs.68,94,116/- by the complainant is not in dispute. The date of agreement was 17.4.2017, committed date was 31.7.2018, which with the grace period of three months comes to 30.10.2018, counsel for OP states that the project was ready notwithstanding the delay of about one year from the committed date and OC was obtained during Sept., 2019. Although the counsel for OPs states that they have offered the possession to complainant in question (joint complainant for a same unit), there is no offer of possession letter on record. The complainant contends that they never received any offer of possession from the OPs. During the hearing on 01.07.2024, OPs admitting that they are not having the requisite documents to show offer of possession to the complainants in the present case. They further stated that they have already given possession to all the allottees except complainant in the present case. In the absence of any evidence from the OPs; with respect to offer of possession to the Complainants on or after obtaining the requisite OC from the Competent Authority, we hold that OPs have failed to offer the possession of the unit in question to the Complainants.  The committed date of possession with grace period was 30.10.2018. Hence, there is an inordinate delay in handing over the possession of flat by the OPs. The complainants cannot be made to wait for an indefinite time and suffer financially. Hence, the complainants in the present circumstances have a legitimate right to claim refund alongwith fair delay compensation/interest from the OPs. It was held by Hon’ble Supreme Court in Wg. Cdr. Arifur Rahman Khan and Aleya Sultana and Ors. vs DLF Southern Homes Pvt. Ltd. & Ors. (2020) 16 SCC 512, “failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within the contractually stipulated period, amount to deficiency”.  In Ireo Grace Realtech Pvt.Ltd. Vs. Abhishek Khanna & Anr. (2021) 3 SCC 241, Hon’ble Supreme Court held that “allottees who have not been given possession, cannot be made to wait indefinitely for possession, nor they can be bound to take possession in other phase of the project. Such allottees are entitled to refund of entire amount deposited by them”.  In Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghvan  (2019) 5 SCC 725, Hon’ble Supreme Court held that “flat purchaser could not be compelled to take possession of the flat, when it was offered almost 2 years after the grace period under the agreement expired”. In Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra- (2020) 18 SCC 613, Hon’ble Supreme Court observed that “A buyer can be expected to wait for possession for a reasonable period.” It was held by Hon’ble Supreme Court in Banglore Development authority Vs Syndicate Bank (2007) 6 SCC 442 and Fortune Infrastructure Vs Trevor D' Lima (2018) 5 SCC 422 "Home buyers cannot be made to wait for possession of the flat for indefinite period".

9.         For the reasons stated hereinabove, and after giving a thoughtful consideration to the entire facts and circumstances of the case, various pleas raised by the learned Counsel for the Parties, the Consumer Complaint is allowed/disposed off with the following directions/reliefs: -

 (i) The OPs shall refund the entire principal amount of Rs.68,94,116/- (Rupees sixty eight lakhs ninety four thousand one hundred and sixteen only) to the complainants, alongwith compensation in the form of simple interest @ 9% per annum from the date of each payment till the date of refund.  The principal amount refundable mentioned in this para is subject to verification of actual amount paid by the complainant based on receipts etc.

(ii) The OPs shall pay a sum of Rs.25,000/- as cost of litigation to the  Complainants.                 

          (iii) The liability of the OP(s) shall be joint as well as several.

(iv) The payment in terms of this order shall be paid within two months from

today.

(v) In case the Complainants have taken loan from Bank(s)/other financial institution(s) and the same/any portion of the same is still outstanding, the refund amount will be first utilized for repaying the outstanding amount of such loans and balance will be retained by the complainant.The complainant would submit the requisite documents from the concerned bank(s)/financial institution(s) to the OPs four weeks from receipt of this order to enable them to issue refund cheques/drafts accordingly. In case no loan has been taken or no such loan is pending, Complainants shall, within four weeks, submit a requisite affidavit in this regard to the OPs.

10.       The pending IAs, in the Consumer Complaint, if any, also stand disposed off.