1. The present batch of Consumer Complaints (CCs) have been filed by the Complainant against Opposite Parties as detailed above, inter alia praying for directions to the OP(s) to:-

1. To refund the entire amount of Rs.24,44,448/- in CC/51/2020 and Rs.29,56,000/- in CC/52/2020 to the complainant along with penal interest per annum as deemed fit by the Hon’ble Commission.
2. To compensate the complainant for mental pain and harassment caused due to the act of the OPs,
3. To pay the delay possession charges and Penal interest as assess by this Commission.
4. To pay a sum of Rs.50,000/- to the complainant towards the cost of litigation.

2. Since the facts and question of law involved and the reliefs prayed for in these complaints are similar/identical and against the same Opposite Parties except for minor variations in the dates, events, flat numbers and amount paid etc., which are summarized in the Table at Annexure-A, these complaints are being disposed off by this common order. However, for the sake of convenience, Consumer Complaint (CC) No. 51 of 2020 is treated as the lead case and facts enumerated herein under are taken from CC/51/2020.

3. 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 at Annexure-A.  The details of the flats allotted to the Complainant (s)/other relevant details, based on pleadings of the parties and other records of the case are also given in the Table-A.

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

1. Complainant applied for a house on 18.07.2012 by paying a sum of Rs.10,00,000/- towards the booking amount through cheque in the residential group housing colony under name “The Peaceful Homes” at Sector 70A, Gurgaon. Complainant paid another amount of Rs.8,00,000/- on 04.10.2012, Rs.2,70,862/- on 29.11.2012 through cheques and Rs.3,73,586 in cash on 27.03.2015 (Total amount paid Rs.24,44,448/-).
2. To allure more money, OP issued an allotment letter in favour of the complainant on 10.07.2014 as per which Unit No. C224 of 2BHK of area 1565 sq. ft. approx. Tower No. C floor 22 and also sent a payment plan to the complainant.
3. The Flat Buyer’s Agreement dated 09.09.2014 was executed after two years of payment of booking amount. The total consideration of the said apartment, as per the payment plan, was fixed at Rs.94,76,075/-.
4. As per clause 11 (a) of the Flat Buyer’s Agreement, the OP agreed and undertook to hand over the possession of the said apartment within a period of 36 months from the date of commencement of construction of project.
5. Vide a demand letter dated 12.03.2015, OP again raised a demand of Rs.3,73,586/- from the complainant. Complainant again bonafidely paid the said amount through cash on 27.03.2015. Till date the Complainant have paid in total Rs.24,44,448 (Rs.10,00,000/- + Rs.8,00,000/-, Rs.2,70,862/-, Rs.3,73,586/-) as per the payment plan. 
6. On visiting the site, complainant was shocked to see that the project for which the amount she paid is not in a habitable condition and asked for cancellation of her booking. Ms. Nandita Chauhan, who is OP 6 in the present case assured the complainant that she would help her in cancelling the booking but nothing happened.
7. Upon requesting for cancellation, OP continued raising the demand of money and under pretext of failure to make payment by the complainant, have illegally terminated the Agreement and forfeited the entire money paid by the complainant.     

5. It is averred/stated in the Complaint that:-

1. The complainant booked the flat in the year July, 2012 and as per the Flat Buyer’s Agreement, the possession would be handed over in 36 months i.e. in July, 2015. But after four long years, the complainant did not get the possession of the flat. In 2015, the Complainant met with Ms. Nandita Chauhan, Manager of the OP requested the cancellation of the unit, when OP did not give proper response to the telephonic queries of the complainant and making false promises.
2. On raising a query for cancellation, OP demanded the money from the complainant for the completion of the project. Instead of completing the project of the complainant, OP invested the money in other commercial projects. As per the clause 14 of the Flat Buyer’s Agreement, it was agreed by the OP, in case of any delay, the OP shall pay to the complainant, a compensation at the rate of Rs.5/- per sq. ft. per month as per the super area for the period of delay.
3. Vide letter dated 13.06.2019, the OP enforced the termination of the captioned Unit for non-payment of the outstanding payment.       

6. The OP-1 in their written statement/reply stated that :-

1. The OP-2 is the corporate office of OP-1 and OP-3 was a former Director of the OP-1, who resigned from the Directorship of OP-1 vide letter dated 31.08.2019.
2. The complaint is beyond the pecuniary jurisdiction of this Hon’ble Commission, it is clear that in terms of applicable law the present claim does not fall within the pecuniary jurisdiction of this Hon’ble Commission.
3. The complainant has defaulted in her obligations under the application form and the Flat Buyers Agreement
4. Owing to the deliberate defaults and breaches of the terms of the Flat Buyers Agreement by the Complainant, the OP-1 was constrained to issue a Termination Letter dated 13.06.2019, in terms of clause 56 of the FBA and clause 33 of the Application form.
5. As per the delay in payments to the OP-1, the complainant had kept the OP-1 waiting for years.
6. The OP-1 has the right to forfeit the amounts in terms of the application form.
7. The Complainant has falsely averred that the OP-1 had promised to deliver the allotted unit by July, 2015.
8. OP-1 contended that they are not liable for any alleged delay as there  were force majeure/several unforeseeable events which affected the timely completion of the project like demonetization of currency notes. More than 60% of the allottees have defaulted in their payments. 

7. The OP-4,5 & 6 in their written statement/reply stated that:-

1. The complaint is claimed to be misconceived, frivolous, and based on conjectures and surmises.
2. OP-4, is the Director, OP-5, is the Director and OP-6, is an Assistant General Manager of the OP-1, assert that there is no privity of contract between the Complainant and Opposite Parties No. 3 to 6, and their names should be deleted.
3. The complainant is accused of naming Opposite Parties No. 3 to 6 to harass and damage their reputations, an abuse of legal process.
4. OP-6 aligns with the common reply filed by the OP-1
5. The OP-6 requests the dismissal of the complaint, deletion of OP-6 from the case, and any other appropriate relief.

8.  Complainant in his rejoinder stated that: -

1. Complaint is within the pecuniary jurisdiction of this Hon’ble Commission and maintainable.
2. Complainant was not under default and fulfilled her part of obligation until discovered that the builder is delaying the construction of project.
3. Terms of application form including any right of forfeiture of the hard earned money by the OPs despite its own default is harsh, arbitrary and against the principal of equity and justice.
4. Opposite Party is guilty of deficiency of services and unfair trade practice.
5. Intentional delay of the project.
6. Complainant is consumer within meaning of the Consumer Protection Act, 1986.

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

       9.1       Important Contentions of Complainants

(a)       The Complainant contended that the OP executed a one sided terms and conditions of the booking and allotment of the unit. Clause 35 of the Terms and Conditions of the Application Form stipulates that the project will be completed and possession of the Unit shall be offered within 36 months with a grace period of 6 months, in case of delay, compensation calculated @ Rs.5 per sq. ft. per month for delay upto six months, @ Rs.7.50 per sq. ft. per month for delay between six to twelve months after expiry of grace period and @ Rs.10.00 per sq. ft. for beyond twelve months. 

(b)       In clause 41 of the terms and conditions of the Application Form entitles that Opposite Parties to levy and recover heft penalty calculated at the exorbitant @ 18% per annum upon any delayed payment by the complainant.

(c)       In the Application Form, no clarity as to the payment plan and commencement date of construction was given which was deliberately kept vague in order to manipulate the home buyers who have invested their life savings to own a house.

(d)       Complainant had made the payments till 2014 before the Opposite Party started the construction of the project. Almost after two years, on 10.07.2014 and allotment letter was issued confirming the allotment of unit in favour of the complainant. Construction of the project was started on 21.04.2014. A Flat Buyers Agreement was executed modifying the terms of the Application Form on 10.09.2019

(e)       Complainant decided to cancel the booking of the said unit and requested to refund the money. On 13.06.2019, Complainant received the letter for terminating the allotment of the unit and forfeiting the amount paid by the Complainant despite being itself at fault.

(f)        The Complainant further submits that the Tower C in which the unit is allotted to the Complainant is not yet ready and the Occupancy Certificate for Tower AS1, AS2, AS3 and EWS was issued on 29.10.2019 only.

       9.2       Important Contentions of OPs

(a)       On 16.04.2019, due to the continuous default by the Complainants, OP was constrained to send a pre-termination letter. On account of the continuous breach, and failure to reply to the pre-termination letter, the Complainants were issued a termination letter dated 13.06.2019. OP contended that they have duly obtained the registration and occupation certificate from the competent authority.

(b)       OP contended that the complaint is beyond the jurisdiction and the Complainant has defaulted in her obligations under the Application Form and the Flat Buyers Agreement. OP-1 has the right to forfeit the amounts in terms of the Application Form.

(c)       OP further contended that the Complainant is not a consumer within the meaning of Section 2 (d) of the Consumer Protection Act, 1986.

(d)       In support of their contentions, OP relied upon the following judgements:

              (i) Rajnish Bhasin Vs. Jaypee Infratech, 2018 SCC Online NCDRC 496

              (ii) Bharati Knitting Company Vs. DHL Worldwide Express Courier Division of Airfreight Ltd., (1196) 4 SCC 704.

              (iii) Baljit Singh Sandhu Vs. Jalandhar Improvement Trust 2016 SCC Online NCDRC 2576

              (iv) Adarsh Mira Leekha Vs. H.U.D.A., 2012 SCC Online NCDRC 354                    

10. CC has been filed seeking refund of Rs.24,44,448 along with interest, compensation and other charges etc. The complainant booked a flat in the project the Peaceful Homes of the OP vide application dated 18.07.2012 by paying a booking amount of Rs.10,00,000/-  this was followed with an allotment letter dated 10.07.2014, which also contains a payment plan and flat-buyer’s agreement dated 09.09.2014. As per clause 35 of the application form, the committed date of possession was 36 months from the date of commencement of construction of the project, which shall mean the date of commencement of the excavation work of the project site and this date shall be communicated to the applicant, with a further grace period of 180 days. The FBA contains similar condition vide clause 11 (a), the date of excavation was communicated by the OP vide letter dated 21.04.2014 hence according to OP, the committed date of possession is to be calculated as 36+6 months from 21.04.2014 and it comes to 21.10.2017 while the complainant on the other hand contends that the committed date of possession with 36+6 months should be calculated from the date of application form and this comes to 18.01.2016. Here, it is important to note that while signing the FBA on 09.09.2014, the complainant has already received the letter dated 21.04.2014 intimating the date of excavation. Hence he was fully aware of this date at the time of signing FBA. At the time of signing the agreement, the OP had already approvals of the town-planner dated 29.05.2009 (copy submitted during the hearing). It is not in dispute that the OC was obtained by the OP on 29.10.2019. A legal notice was sent by the complainant on 03.07.2019 seeking refund of their amount. The complainant admits that till the sending of this legal notice they never formally in writing sought refund from the OP. The OP on the other hand states that even before the issuance of the legal notice dated 03.07.2019 they have issued the termination letter on 13.06.2019 on account of default on the part of the complainant to pay the due instalments. They further state that this termination notice was proceeded by a pre-termination letter dated 16.04.2019. They have also drawn our attention to various demand letters which remain unpaid:

              (a) Demand letter dated 25.06.2015 on casting of 2nd floor level.

              (b) Reminder dated 17.07.2015 for demand on casting of 2nd floor level.

              (c) Demand letter dated 07.09.2015 on casting of 6th floor level.

              (d) Reminder demand letter dated 01.10.2015 on casting of 6th floor level.

              (e) Demand letter dated 05.12.2015 on casting of 10th floor level.

              (f) Demand letter dated 02.01.2017 on casting of 30th floor level.

11. In short, the case of the OP is that other than paying Rs.24,44,448 (this amount not being disputed by the OP), the complainant did not pay any instalment which was due as per the payment plan enclosed with allotment letter dated 10.07.2014 starting with casting of 2^th floor level till the casting of top floor level which ultimately compelled the OP to issue the termination letter. It is admitted that as the termination got issued before the OC was received, no offer of possession was made in the present case.

12. During the hearing, the complainant raised issue regarding one sided nature of the clause of the application form as well as FBA. However, it is to be noted that although at the time of signing the FBA, he had in addition to payment of booking amount of Rs.10,00,000/- made few more payments, at the time of signing an application form and paying Rs.10,00,000/-, there was no compulsion on him to sign the application form if he felt the said application form have any one sided clauses.

13. The contention of the complainant is that the project did not progress as per the indicated schedule hence they did not make payments as per various demand letters. However, he admits that he did not send any formal response in writing to OP on receiving any of the demand letters referred to above either objecting to such demand letters on any reasons whatsoever or stating that the stage for which such demand has been raised have not reached on ground.

14. OP on the other hand have raised certain contentions the important one  relating to pecuniary jurisdiction stating that the amount paid by the complainant is only Rs.24,40,000/- and keeping in view the prayers, it is below the pecuniary jurisdiction of this Commission. However, the complainant drew our attention to Section 21 of the Act under which the pecuniary jurisdiction is to be determined based on the value of goods and services and compensation if any, claimed.

15. We have seen the termination notice dated 13.06.2019 as per which the earnest money stated to forfeited is Rs.14,51,411/-. In addition to this amount this notice makes mention of few other items like interest accrued amounting to Rs.22,40,000/-, GST on earnest money and interest, marketing expenses etc. During the hearing, the counsel for the OP was not able to give any convincing response as to in the eventuality they forfeiting the earnest money how they are entitled to even demand interest accrued on defaulted payments as such interest is payable only on delayed payments i.e. in a situation where complainant makes a payment with delay and the same are accepted by the OP. Further, no convincing response was given with respect to forfeiture on account of taxes/GST etc. This termination notice shows the total amount deductible as Rs.49,47,754/- and keeping in view the amount received which is Rs.24,44,448/-, the amount recoverable from the complainant comes to Rs.25,03,306/-.

16. The contention of OP(s) 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 OP(s) that delay was due to unforeseen circumstances is not valid as even after a gap of more than 02 years from the committed date as per the agreement, OC was not obtained.  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/unforeseen.

17. In view of the foregoing, it is clear that Complainant defaulted in various payments demanded through various demand letters issued after the signing of agreement and till the committed date of possession as per agreement which have been detailed in para 10. No valid reasons have been given by the Complainant for not paying such amounts demanded. If the Complainant had any objections to such demands on any grounds, including non-achievement of construction milestones, she ought to have replied to such demands stating her objection, which has not been done. No doubt there is a delay of two years in obtaining OC by the OP from the committed date of possession. Complainant admits that till the date of sending the legal notice on 03.07.2019, they never made any written request/communication with OPs seeking refund on account of delay in completing the project or any other reason, whatsoever. However, OPs had already issued the termination letter dated 13.06.2019, i.e. before the legal notice of Complainant, on account of default on the part of Complainant in making payments as per payment plan, raised vide various demand letters. Hence, we are of the considered view that action of OPs in issuing the termination letter dated 13.06.2019 is not wrong. This Commission, in CC/438/2019, Ramesh Malhotra & Ors. Vs. Emaar MGF Land Ltd. & Anr., decided on 29.06.2020, after considering various earlier judgements of this Commission, in particular in RP/3860/2014, DLF Ltd. Vs. Bhagwanti Narula decided on 06.01.2015 as well as of Hon’ble Supreme Court held that (i) an amount exceeding 10% of the total price cannot be forfeited by the seller, since forfeiture beyond 10% of the sale price would be unreasonable and

       (ii) only the amount, which is paid at the time of concluding the contract/booking of the unit can be said to be the earnest money. Hence,               keeping in view the earlier judgements of this Commission, we are of the view that amount forfeited Rs.49,47,754.93/- by OPs vide letter                dated 13.06.2019 is not justified. OPs can, at the most, forfeit an amount equal to 10% of the sale price or the entire booking amount                       whichever is lower i.e. Rs.9,47,607 in CC/51/2020 and Rs.10,00,000/- in CC/52/2020.

18. As OP-6 is only an employee of OP-1/OP-2 company, no liability can be fixed on OP-6. Similarly, as OP-3 has already left the OP-1/OP-2 company, no liability can be fixed on OP-3. However, OP-4 & OP-5 being Directors of OP-1/OP-2 Company, are also liable. Hence, the liability of OP-1/OP-2 Company as well as OP-4 & OP-5, who are Directors of OP-1/OP-2 Company, shall be joint and several.

19. Accordingly, CC/51/2020 is disposed off with directions to OPs (OP-1/OP-2, OP-4 & OP-5) to refund the principal amount of Rs.24,44,448/- paid by the Complainant, after forfeiting/deducting an amount of Rs.9,47,607/- only, along with interest @9% p.a. on the balance amount to be refunded (Rs.14,96,840/-) with effect from date of each payment till the date of refund (the deduction of Rs.9,47,607 will be made/accounting for from the later/last deposit made by the Complainants). In addition, OPs shall pay an amount of Rs.25,000/- as litigation costs. All payments as per this order shall be made within two months of date of this order, failing which, amount payable at the end of two months shall carry interest @12% p.a. Principal amount mentioned herein is subject to verification based on original receipts.  

20. CC/52/2020 is also disposed off in terms of above stated order in CC/51/2020 with directions OPs (OP-1/OP-2, OP-4 & OP-5) to refund the principal amount of Rs.29,56,000/- paid by the Complainant, after forfeiting/deducting an amount of Rs.10,00,000/- only along with interest @9% p.a. on the balance amount to be refunded (Rs.19,56,000/-)  with effect from date of each payment till the date of refund (the deduction of Rs.10,00,000/- will be made/accounting for from the later/last deposit made by the Complainants). In addition, OPs shall pay an amount of Rs.25,000/- as litigation costs. All payments as per this order shall be made within two months of date of this order, failing which, amount payable at the end of two months shall carry interest @12% p.a. Principal amount mentioned herein is subject to verification based on original receipts.

21. The pending IAs, in both the Consumer Complaints, if any, also stand disposed off.

*From the date of commencement of construction of project, which shall be the date of commencement of excavation work of the project site, as communicated by the OP to the Complainant.