The complainant has not disclosed material facts that the refund has been sought by Complainant and her husband for both the units booked by them in different Fora. Complainant’s husband has filed another case before Haryana RERA. 8. Hence, the Opposite has prayed for dismissal of the present Complaint with heavy costs. 9. Rejoinder has been filed on behalf of the Complainants to the Reply filed by Opposite Party. 10. Affidavit in Evidence has been filed by Ms. Raminder Kaur on behalf of the complainant. Affidavit in Evidence has been filed by Mr. Shashank Bhushan on behalf of the Opposite Party. 11.Heard the Ld. Counsel for the parties. Perused the material available on record and the written arguments filed by both the parties. 12. The special emphasis in this case on behalf of the Opposite Party is on the Memorandum of Understanding (MoU) subsequently entered into between the Parties on 11/12.09.2017 (Annexure C-6) vide which the Complainant purportedly took back an amount of Rs.70.00 Lakhs from the Opposite Party which she promise to return at the time of taking possession. 13. Attention of the Court in this regard has been drawn to the specific contents of Clause 2 (Page 80) of which is set out as below :
“That the Company shall immediately on signing of this MoU pay an amount of Rs.70 lacs to the Allottees out of the consideration paid by the Allottees for Unit No.1. The Allottees assures and undertakes to make the balance payments including the amount of Rs.70 lacs towards the said Unit No.1 on time as per the demand of the Company and further undertakes to take timely possession of the said Unit No.1 as and when the Allottees receives the Offer of possession and on payment of possession related dues and completion of formalities.”
14. Another prominent condition forming part of the MoU is contained in Clause 4 vide which the Complainant purportedly gives up the right to claim any compensation for delay in delivery of possession in respect of the Unit No.1 and also undertakes to not raise any claim on that account. Interestingly, return of the amount of Rs.70.00 Lakhs to the Complainant pending delivery of the Unit in question has been described as “Goodwill gesture” by the Opposite Party.
15. The entire contents of this MoU clearly warrant a very close scrutiny of the surrounding facts and circumstances in which the same was executed between the Parties.
16. In this regard, Ld. Counsel for the Opposite Party draws attention to the mail trial emanating from the Complainant’s side which is annexure C-4. In particular, attention has been drawn to the E- mail dated 08.09.2017 (page 72). Per Contra, attention from the Complainant’s side is drawn to Clause 3 of the MoU vide which obligation upon the Complainant’s side was to make payment of dues on time and also rendered them liable to pay delayed payment charges on the concerned amount of Rs. 70.00 Lakhs returned in view of the MoU, in the event of their failure to take timely possession of the Units.
17. The possession was admittedly offered on 05.11.2019 but long before that the demand notice under the caption “Payment Request Reminder 1 - Without Prejudice “(Page 82) was issued by the Opposite Party on 06.04.2018 in which the amount of Rs.5,93,566/- of Opposite Party’s alongwith ST/GST amounting to Rs.71,228/- totaling Rs.6,64,794/- for that was also demanded.
18. We are to now consider the overall impact of the MoU on the ultimate rights and obligations of both sides. It needs to remembered that the MoU was signed between the parties at a stage after the Complainant, in view of the delay in getting possession for nearly one year and 5 months after even the extended grace period had ended in January, 2016, had requested for refund of the entire paid up amount on 13.6.2017, which mail sent on her behalf by her husband Shri Nishat Khan is a part of Annexure- C4 on page 70. It was only on account of reluctant attitude of the Opposite Party to refund the money, that the Complainant had no choice but to accept even a partial refund of Rs. 70.00 Lakhs, in terms of the MoU dated 11.9.2017, since it is on record that the marriage of her daughter had already been fixed in the very same month of September, 2017 on account of which she had to take back the partial amount being returned to her with the condition that she would return the same to the Opposite party once the possession was offered to her on some future (unspecified) date. In the Memorandum of Understanding, she also forfeited her right to claim the compensation for delayed possession without having any idea when the possession would actually be offered in future. The Memorandum was admittedly prepared at the behest of the Opposite Party and bare perusal of the same would go to reveal that the conditions imposed upon the Complainant were not only harsh but also not legitimate since by way of the same, the Opposite Party “and all its officers, employees and, agents etc. of and from any and all past, present or future claims, demands, obligations, actions, causes of action, rights, damages, costs, loss of services, expenses and compensation, if any, on account of, or in any way touching the allotment of the said units” were sought to be absolved once for all. The only concession from the side of the Opposite Party offered was that no interest clause on the returned amount of Rs. 70.00 Lakhs for the period it was to be retained by the Complainant was mentioned in the MoU, but in any case the Complainant was bound to pay up the said amount alongwith balance payments as per demand of the Company (O.P.) as and when she would receive the offer of possession in future and, “on payment of possession related dues and completion of formalities”. There was, however, no indication in the MoU as to what all constituted the “payment of possession related dues” by the Complainant as and when she would receive the offer of possession. It is, however, to be noted that prior to all these developments, on 4.5.2017, the Opposite Party from its side had agreed to defer payment of instalment No. 13 till the intimation of the possession demand which was to come alongwith the subsequent instalment No. 14, and copy of mail is on record on page 83. Undoubtedly, such commitment from the side of the Opposite Party was binding upon it, but no reference to the same even indirectly was made in the MoU dated 11.9.2017. It would, therefore, be fair to conclude the MoU as being a harsh and a totally one-sided kind of agreement between the parties which the Complainant had no choice but to accede to, on account of her helpless condition, when all her money and resources had been thrown into the high price of dwelling units, which did not become available to her or her husband after almost two years from the scheduled date for delivery of possession, and at a stage when the marriage of the Complainant’s daughter was to be performed in the very same month. Such helpless condition of the Complainant, not of her own making, was certainly in the given circumstances was squarely attributable to the Opposite Party.
19. The MoU entered into by the parties on 11.9.2017 in which except for refunding an amount of Rs. 70.00 lakhs to the Complainant and claiming to waive interest upon the same, was on various other counts palpably one-sided and designed to squeeze the helpless condition of the Complainant to the last extent possible. In the opinion of this Commission therefore, the MoU cannot be regarded as a fair agreement, binding upon the Complainant who had already paid huge sum of money to the Opposite Party, on account of which she had no other option but to accept as a desperate measure, after it had been prepared by the Opposite Party, and thus to sign on the dotted lines in the said MoU to meet up the marriage related expenses of her daughter since the marriage was fixed in the very same month of September, 2017. In spite of being aware of the Complainant’s predicament, the Opposite Party’s had committed an inordinate delay in delivering possession of the dwelling unit to the Complainant, and had also not cared to refund the payments made by her on her repeated requests. Consequently, the MoU cannot be treated as binding on the Complainant, being an altogether one-sided, unfair and heavily loaded against the Complainant.
20. We have come to this conclusion by considering the applicability of the decisions of the Hon’ble Supreme Court in this regard, the gist of which is referred to in the following paragraphs.
21. In “Ireo Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna, Civil Appeal No. 5785 of 2019,decided on 11.1.2021”; the Apex Court has held that –
“19.7 We are of the view that the incorporation of such one-sided and unreasonable clauses in the Apartment Buyer‘s Agreement constitutes an unfair trade practice under Section 2(1)(r) of the Consumer Protection Act. Even under the 1986 Act, the powers of the consumer fora were in no manner constrained to declare a contractual term as unfair or one-sided as an incident of the power to discontinue unfair or restrictive trade practices. An ―unfair contract‖ has been defined under the 2019 Act, and powers have been conferred on the State Consumer Fora and the National Commission to declare contractual terms which are unfair, as null and void. This is a statutory recognition of a power which was implicit under the 1986 Act.
In view of the above, we hold that the Developer cannot compel the apartment buyers to be bound by the one-sided contractual terms contained in the Apartment Buyer‘s Agreement.”
22. Similarly, in “Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, Civil Appeal No. 12238 of 2018” With “Pioneer Urban Land & Infrastructure Ltd. Vs. Geetu Gidwani Verma & Anr., Civil Appeal No. 1677 of 2019, decided on 2.4.2019”,
“Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan
“6.7. A term of a contract will not be final and binding if it is shown that the flat purchasers had no option but to sign on the dotted line, on a contract framed by the builder. The contractual terms of the Agreement dated 08.05.2012 are ex-facie one-sided, unfair, and unreasonable. The incorporation of such one-sided clauses in an agreement constitutes an unfair trade practice as per Section 2 (r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling the flats by the Builder.”
23. But the matter does not end merely with the MoU being unfair and not binding on the Complainant. The subsequent conduct of the Opposite Party towards the Complainant was even more oppressive and unfair, by means of which it sought to avoid even its own vital commitments made in the MoU, notwithstanding that the same was already heavily and unfairly loaded against the Complainant. This would be clear from the fact that the Opposite Party in the MoU had categorically agreed that it would not demand any delayed payment charges for the delay, if any, made in payments by the Complainant, it nevertheless before offering the possession demanded delayed interest on the payments by the Complainant to the tune of Rs. 6,64,794/- in its Demand Letter dated 6.4.2018. From the Statement of Accounts dated 4.10.2018, it becomes clear that the Opposite Party in spite of having agreed to waive the delay payment charges, kept on levying delay interest on the said amount and that such interest was kept recurring. Thereafter, the Complainant on confronting the Opposite Party for breach of MoU terms was assured via an e-mail dated 9.10.2018 that the Demand Letter and the Statement of Accounts, being system generated, would nevertheless be rectified and no delay penalty would be levied at the time of offer of possession.
24. Furthermore, the Opposite Party from its side additionally charged an amount of Rs. 6,02,000/- as PLC on the premise that the Unit being offered was of Central Green facing which actually it was not. To ascertain the fact, the Complainant requested for a visit to the site but her request was motivatedly turned down, while the Opposite Party kept on denying that the Unit is not Central Green facing. It was only at a subsequent stage on 3rd and 5th September, 2019, that it admitted that the Unit was not Central Greens facing and the PLC as such was not applicable, and would be adjusted at the time of offer of possession. Being frustrated with such conduct, the Complainant had at that stage repeatedly asked for refund of her money by e-mail on no less than six occasions during the limited period between 28.8.2019 to 23.9.2019, but the Opposite Party still paid no heed. Finally, the Complainant sent a Legal Notice seeking refund of the entire amount paid by her with interest to which the Opposite Party did not give any reply on merits but requested the Complainant for an amicable settlement of dispute by inviting her to its office, but never scheduled any meeting for such purpose despite various request by the Complainant through e-mails. Thereafter, on 5.11.2019, the Opposite Party hastily offered possession to the Complainant but again a huge penalty of Rs. 19,70,414/- was levied upon her, and the Statement of Accounts as promised was not rectified, nor the PLC amount wrongly charged to her, returned, and even the interest which was agreed to be waived by the Opposite Party was again levied wrongfully. The very next day i.e. on 6.11.2019, the Opposite Party went to the extent of sending a warning letter to the Complainant asking her to immediately pay the amount of Rs. 93,41,024/- failing which the Builder-Buyer Agreement would not only be terminated but also penal provisions mentioned therein would be enforced against her, thereby totally going back from the commitments made in the MoU dated 11.9.2017 on which the Opposite Party has placed a huge reliance to defeat the Complainant’s case.
25. In view of the above conduct of the Opposite Party coupled with the inordinate delay in delivering possession of the Unit promised to the Complainant, this certainly appears to be a case covered by the ratio of the decision of the Hon’ble Supreme Court in “Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, II (2019) CPJ 34 (SC), decided on 2.4.2019” in which it was held -
“9. We see no illegality in the Impugned Order dated 23.10.2018 passed by the National Commission. The Appellant-Builder failed to fulfil his contractual obligation of obtaining the Occupancy Certificate and offering possession of the flat to the Respondent- Purchaser within the time stipulated in the Agreement, or within a reasonable time thereafter. The Respondent- Flat Purchaser could not be compelled to take possession of the flat, even though it was offered almost 2 years after the grace period under the Agreement expired. During this period, the Respondent- Flat Purchaser had to service a loan that he had obtained for purchasing the flat, by paying Interest @ 10% to the Bank. In the meanwhile, the Respondent- Flat Purchaser also located an alternate property in Gurugram. In these circumstances, the Respondent- Flat Purchaser was entitled to be granted the relief prayed for i.e. refund of the entire amount deposited by him with Interest”.
26. Similarly, in “Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra”, II (2019) CPJ 29 SC, decided on 25.03.2019, it was observed as hereunder:
“…..It would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession. By 2016, nearly seven years had elapsed from the date of the agreement. Even according to the developer, the completion certificate was received on 29 March, 2016. This was nearly seven years after the extended date for the handing over of possession prescribed by the agreement. 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. In the circumstances, we are of the view that the orders passed by SCDRC and by the NCDRC for refund of moneys were justified…….”.
27. As we have already seen, the MoU dated 11.9.2017 is not only an unfair and one-sided Agreement not binding upon the Complainant, but the terms agreed therein by the Opposite Party were themselves flagrantly breached by it subsequently. Consequently, this is certainly a fit case to grant the admissible reliefs sought for by the Complainant.
28. In view of the discussion above, we allow the complaint with the following directions-
(i) The Opposite Party shall refund to the Complainant the entire payments made by her towards purchase of the dwelling Unit offered to her from the date of each individual payment alongwith the interest @ 9% p.a. from each respective date, till realization. However, an amount of Rs. 70.00 Lakhs which has already been taken by the Complainant in pursuance of the MoU, shall stand excluded for the purpose of refunding her money. Consequently only the balance amounts retained by the Opposite Party, shall be so refunded, with interest as directed. The refund of all such outstanding amounts with interest till the date of offer of possession i.e. 5.1.2019 to the Complainant, shall be completed by the Opposite Party within three months of the date of this Order;
(ii) The Opposite Party shall also pay Rs. 50,000/- to the Complainant towards litigation costs;
(iii) In the event of non-compliance of this Order, the amounts to be paid shall attract an interest rate of 12% p.a. for the same period.
29. Pending application(s), also stand disposed off.
