DR. INDER JIT SINGH, MEMBER

1. The present Consumer Complaint (CC) has been filed under Section 21 of the Consumer Protection Act,1986( for short ‘the Act’) by the Complainant against Opposite party (OP) as detailed above, inter alia praying for:-

1. To direct OP to refund Rs. 1,26,81,173/- along with interest @ 18 %  p.a. from the date of the receipt of the payments made to OP.

2. To direct OP to pay delayed possession compensation equal to interest at the rate 18% p.a. on amount deposited by the Complainant with OP w.e.f. September 2012.

3. To direct OP to refund wrongfully charged taxes and other charges along with the interest on that amount @ 18% p.a. from date of receipt of such wrongfully levied charges and taxes..

4. To direct OP to pay Rs.30 lakhs as compensation towards mental agony and harassment to the Complainant.

5. To direct OP to pay Rs.15 lakh towards cost of litigation.

2. Notice was issued to OP, giving them 30 days’ time to file written statement. Written statement was also filed by OP.

3. It is averred in the Complaint that: -

1. The complainant initially booked a residential apartment with the OP in a project namely ‘Palm Gardens’ which the OP was to develop in Sector 83 of Gurgaon. The booking was made on 01/09/2012 paying a booking amount of Rs.7,50,000/-. The total consideration of the apartment at the time of booking was Rs.1,26,49,358/- and service tax amounting to Rs.4,23,068/-. After allotment of a residential unit bearing No. PGN-02-1104 having a tentative super area of approx. 1720 sq.ft. to the Complainant, the parties executed an agreement on 22/10/2012, incorporating their respective obligations in respect of the said transaction. As per the  Builder Buyers agreement(BBA), the possession was proposed to be handed over to the complainant within thirty six months from the start of construction(June 2012) i.e. by September 2015 (including a grace period of three months). In 2014, OP lured the Complainant by offering a flat with a increased super area of 2030 sq.ft. for the consideration of Rs.2,75,57,858/- and by saying that the construction is almost complete of these flats and possession will be delivered by 2016, owing to these promises by OP, Complainant entered into another Buyers agreement(hereinafter referred to as agreement) dated 29/10/2014 for unit bearing No. PGN-10-0002, having super area of 3750 sq.ft. The grievance of the complainant is that the possession has not been offered to him and the construction is not complete, despite he having paid Rs. 1,26,81,173/- out of the agreed sale consideration of  Rs. 2,75,57,858/-.

2. OP announced the project in dispute was to consist of 12 towers, with the property ranging from 3 BHK, 5 BHK and duplex having super area from 1720 sq.ft. to 3750 sq.ft. The advertisement further mentions that the project will be having modern amenities and facilities. OP further by using fraudulent means extorted money from Complainant without getting the required permissions from various authorities.

3. OP has given different dates of possession to different buyers, such as Complainant has been given the date of possession in 2015, however other buyers who booked the flat in similar period were given the date of 2019, which clearly demonstrates the cheating mindset of OP.

4. OP despite charging for various amenities such as road connectivity, green area, 24 metre road which was suggested to provide the connectivity to the project directly etc. were not included in the layout plan, which clearly shows the restrictive and unfair trade practices on part of OP.

5. OP have used their dominant position and arbitrarily imposed illegal demands for payments i.e. on exorbitant interest of 24% p.a. on delayed payments, the said unit and other amenities promised were not ready for possession. OP has also charged Rs.6,00,000/- as parking charges, however as per judgement of this commission, the parking charge for one car has to be a part of the BSP.

6. That cause of action is continuing as the possession is not delivered till now.

7. The conduct of the OP falls under the definition of unfair trade practices and deficiency in services.

4.  The OP in their written statement/reply stated that:-

1. Complainant initially booked flat bearing No. PGN-02-1104, subsequently on Complainant’s request in 2014 earlier agreement was cancelled and new agreement was entered between OP and Complainant 29/10/2014, for flat bearing No.PGN-10-002 in which the possession was to be delivered within 24 months from the date of agreement, and the Complainant has agreed for these terms and conditions. OP was planning to offer the possession but Complainant has filed this misconceived complaint.

2. The complaint is liable to be dismissed for non-joinder of necessary parties in as much as the agreement dated 29/10/2014, based on which the present complaint has been filed, was executed by the OP with two allottees, whereas the present complaint has been filed by only the allottee no.1, however the flat under dispute was allotted in favour of two persons with equal right, hence both are necessary parties and thus complaint is liable to be dismissed.

3. Clause 32 of the agreement states that any dispute arising between the parties shall be settled through arbitration.

4. The Complainant has bought the flat for investment purpose and cannot be termed as Consumer under the said Act.

5. That the subject matter of dispute narrows down only to compensation and by no stretch of calculation, it can go beyond Rs. One crore, hence this complains lacks pecuniary jurisdiction of this commission.

6. That this Commission cannot amend or modify the terms of the agreement, and the Complainant is praying for relief not mentioned in the agreement, which cannot be entertained as the terms of contract are binding on both the parties.

7. The present complaint is time barred as it is filed beyond the time prescribed under Section 24A of the Act.

8. That the Complainant is a chronic defaulter and has not made the payment on time and is not liable for any relief.

9. OP has denied allegations of unfair trade practices, deficiency of services etc., stating that the Complainant signed the agreement with his full consent.

5. Complainant in his rejoinder while reiterating the facts of the complaint denied the allegations of OP in their written statement.

6. Evidence by way of an Affidavit was filed by the complainant broadly on the lines of averments made in the complaint. Written Synopsis was filed by the Complainant and OP.

7.  The details of the flats allotted to the Complainant:-

8.  Heard counsels of both sides. The learned counsel for the Complainant while reiterating the facts of the complaint and denying all allegations of OP stated by them in their written statement, cited various judgements of this Commission to support their contentions. The learned counsel for the OP while reiterating their contentions cited various Supreme court judgements in support of their contentions and stated that, they could not complete the construction due to unavoidable force majeure circumstances and slow work by the Infrastructure Leasing and Finance Ltd. (to whom the construction work was entrusted). Further insolvency proceedings against IL&FL, were admitted in NCLT, Mumbai which led to the delay in construction of the project. It is further contented that, they have offered possession to the Complainant after getting occupancy certificate and according to law laid down by this Commission, if possession has been offered after occupancy certificate, the allottee is obliged to take over the possession and further stated that compensation can be made only on well recognized principle, governing the quantification on a rational basis, further the compensation should not be granted on multiple heads.

9. The contention of OP 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 objection that the Complaint is barred by limitation is also not accepted. The OP has failed to deliver the possession of the unit to the complainant till date and therefore, the cause of action is continuing. The contention that Complainant is not a consumer as he has purchased the unit for investment/commercial purpose is also rejected as no such evidence has been adduced by the OP in this regard. The plea of OP that delay was due to force majeure circumstances is not valid as even after a gap of more than 2 years from the committed date given in the agreement, possession of flat was not given.  There is no documentary evidence to support the contention of the Opposite Party that the reasons pleaded by them, can be construed as ‘Force Majeure’. Complainant cannot be made to suffer on account of default by contractors engaged by OP. The contention of the OP that the parties are bound by the agreement is also not acceptable. Hon’ble Supreme Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raglivan II (2019) CPJ 34 (SC) decided on 02.04.2019 held that “a term of a contract will not be final and binding if it is shown that the flat purchasers had no option to sign on the dotted line, on a contract framed by the builder ......... the incorporation of one sided clause in an agreement constitute 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 flats by the builder ........., the appellant-builder cannot seek to bind the respondent with such one sided contractual terms.” 

10. As per the agreement, due date of possession was 29/01/2017 (including grace period of 3 months) but as per OP the possession was offered on 07.05.2019 only. There is delay in handing over the possession of flat by the OP. The complainant cannot be made to wait for an indefinite time and suffer financially. Hence, the complainant in the present circumstances have a legitimate right to claim refund alongwith fair delay compensation/interest from the OP.

11.  As regards contentions of the OP for non-joining of parties who are signatories to the agreement, a perusal of the agreement dated 29.10.2014 show that while Mrs. Ruchira Mathur, the complainant is the owner, her husband Mr. Sanjay Mathur is the Co-owner.  Responding to the objection of OP on this, the complainant in her rejoinder states that the complainant and other co-owner are husband and wife, who had purchased this flat jointly and husband has never disputed the complaint. Ideally both the allottees should have filed a joint complaint.  However, considering the fact that Co-owner/joint allottee as per agreement is the husband of the complainant, in the interest of speedy delivery of justice envisaged under the Act, the reliefs granted to the complainant, under the order, especially the refunds, would be made by OP in the joint name of Mrs. Ruchira Mathur, the complainant in the case and her husband Mr. Sanjay Mathur.

12. 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 OP shall refund the entire principal amount of Rs.1,26,81,173/-   (Rupees one crore twenty six lakh eighty one thousand one hundred seventy three only) to the complainant, alongwith compensation in the form of simple interest @ 9% per annum from the date of each payment till the date of refund. The refund shall be made in the joint nameof Mrs. Ruchira Mathur, the complainant and Mr. Sanjay Mathur, her husband, both being the joint allottee of the unit in question. 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 OP shall pay a sum of Rs.25,000/- as cost of litigation to the  complainant. 

(iii) The payment in terms of this order shall be paid within three months from today.

(iv) In case the complainant and/or her husband Mr. Sanjay Mathur has 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 and her husband.The complainant and her husband would submit the requisite documents from the concerned bank(s)/financial institution(s) to the OP four weeks from receipt of this order to enable them to issue refund cheques/drafts accordingly.

13. The pending IAs, if any, also stand disposed off.