Before the District Consumer Dispute Redressal Commission [Central District] - VIII, 5th Floor Maharana Pratap ISBT Building, Kashmere Gate, Delhi
Complaint Case No.-67/26.09.2020
C1. Ravi Talwar s/o Sh. J.L. Talwar
r/o 19-20, Double Storey, Near D.I. Khan School,
New Rajinder Nagar, New Delhi-110060
C2. Poonam Talwar w/o Ravi Talwar
r/o 19-20, Double Storey, Near D.I. Khan School,
New Rajinder Nagar, New Delhi-110060 …Complainant
Versus
Vatika Limited
through its Directors 4th Floor, Vatika Triangle,
Sushant Lok Block-APhase 1, MG Road,
Gurugram-122002, Haryana, India ...Opposite Party
Date of filing: 26.09.2020
Date of Order: 04.12.2023
Coram:
Shri Inder Jeet Singh, President
Ms. Shahina, Member -Female
ORDER
Inder Jeet Singh , President
1.1. (Introduction to case of parties) – In this complaint there are grievances of deficiency of services and of unfair trade practice by the complainant no. 1 & 2 against OP and the complainants seek refund of the amount deposited in respect of purchase of a residential apartment no. 102 first floor, Tower-A, Type-B allotted by OP in its project Vatika Tranquil Heights, Sector 82 Gurugaon Harayana (hereinafter referred the apartment or residential apartment). The complainants paid amounts from time to time, the total amount paid is Rs.72,20,758/-. The apartment was booked on 01.11.2013, allotment letter was issued on 11.09.2014 and builder buyer agreement is of 27.07.2015 but OP failed to deliver the possession within agreed period of 48 months from the date of builder buyer agreement and there is no likelihood of possession in the near future. That is why, the complaint was filed on 26.09.2020 seeking refund of 100% paid amount along with interest at the rate of 18% pa from the date of receipt of each payment besides compensation of Rs. 5,00,000/- in lieu of mental agony, harassment, discomfort and undue hardship to the complainants and cost of litigation of Rs. 1,00,000/- besides other appropriate relief.
1.2. The OP has opposed the complaint vehemently firstly there is no pecuniary jurisdiction with the present District Commission, there is no cause of action in favour of the complainants and against the OP as the complainants failed to adhere to the payment plan as agreed, besides there were multiple extraneous factors which were beyond the control of OP, which result into delay in completion of the construction of the project (like there was non-removal/ shifting of defunct high tension wires in the entire day out of the project, want of acquisition of sector road connecting the project to Huda, initiation of GAIL etc.). Consumer Protection Act
The complainants are not consumers as the unit was purchased for investment purposes and for want of fulfilling the obligations under the agreement and to wriggle out from those obligations, the complaint was filed. There is no deficiency of services or unfair trade practice on the part of OP, therefore, the complainants are not entitled for any of the reliefs sought.
1.3 The complainants have mentioned law-citations in the complaint, then in the replication and also in the written arguments, besides separate additional case law on point of pecuniary jurisdiction , however, it is subject matter of appreciation of case of parties, therefore, the case law will be mentioned while referring the arguments of parties. The case law relied upon by the OP (during arguments) will also be mentioned appropriately.
2.1. (Case of complainant) –The complainants were impressed by assurances given in the advertisement and they booked an apartment in the Vatika Tranquil Height Project of OP, they invested their hard earned money in purchase of a unit in that projected by paying booking amount of Rs. 6,00,000/- on 01.11.2013. The OP issued an allotment letter dated 11.09.2014 after about 10 months from the date of booking by allotting the apartment (i.e. unit no. 102, First Floor, Tower-A, super area 1645 sq. feet). Thence, after unjustified delay of 10 months, builder buyer agreement dated 27.07.2015 was executed and as per clause no. 13 of the agreement, the possession was to be delivered within 48 months from the date of agreement. Although, after issue of allotment letter, the complainants were requesting the OP to execute builder buyer agreement but because of clear mala fide of OP, it was executed on 27.07.2015, till then a substantial amount of Rs. 25,19,925/- was collected by the OP. The complainants had opted a construction link payment plan, thereby the installments became due and payable on achievement of requisite construction milestone. The complainants in order to have timely possession of the apartment, they were paying timely payments as and when demanded by the OP. The OP had collected substantial amount of Rs.72,20,578/- by 18.07.2019 against receipts and account statement issued by the OP, however, the OP has not delivered the possession of the apartment to the complainants till date.
2.2. The complainants paid their hard earned money to the OP but the conduct of OP display gross deficiency and unsatisfactory services. Moreover, it reflects its mala-fide, wrongful and deceitful intention to evade accountability and responsibility. The complainants have been traumatized for such acts and deeds of the OP.
2.3. There were highly stretched promises and assurances given by OP, when the unit was booked in November, 2013, the complainants also paid the amount and total amount stand paid is Rs.72,20,578/- and OP had also given assurances but they failed to complete the construction of the project within stipulated period, consequently they failed to offer the possession of apartment, even after delay of more than one year from the stipulated time. The OP also failed to provide any reasonable justification for such delay. Moreover, the complainants enquired OP by letter dated 13.02.2020 but there was no response by the OP vis-à-vis the progress status available on the official website of OP infers that possession of the unit in the near future is highly unlikely. The complainant while driving reasons from the precedents/ case law request for refund of total amount paid with interest and other relief claimed.
2.4. The complaint is accompanied with detail available on the website about OP, allotment letter dated 11.09.2014, copy of builder buyer agreement dated 27.07.2015, copy of account statement along with payment receipts and copy of letter dated 13.02.2020.
3.1 (Case of OP)- The OP denies all the allegations of the complaint of deficiency of services or of unfair trade practice with request to dismiss the complaint as complainant has suppressed the material facts from the complaint. The complainants are not consumer and they are misleading the present Commission since the residential unit was booked with intention to earn speculative gains from secondary market. In para 4 of the complaint they specifically write that they have invested money in the unit. Whereas it is settled law that those who make multiple bookings with a view to sell the apartment at profit are not consumer. The complainants are not genuine buyers.
3.2. The complainants are educated persons, they expressed their interest in the allotment of a unit in the project in 2013 through broker “Property Junction Realtors Pvt. Ltd.” and in terms of expression of interest dated 01.11.2013, the OP was bound to allot the specific unit within 12 months from the submission of expression of interest dated 01.11.2013,the OP had honoured it on 26.12.2013 by making allotment of the unit.
In the builder buyer agreement dated 27.07.2015 there is clear covenant for the eventuality of delay, after deducting the period of force majeure, which was beyond the control of OP and the complainant will be duly compensated. As per builder buyer agreement, the timeline for offering possession was subject to certain clauses such as clause no. 13, 17 and 37 and OP reserves it right for such extension, if the delay is caused due to reason which is control of OP. To say, the period of 48 months from the date of agreement is subject to force majeure, as envisaged in clauses 14 to 17 and 37. None of the clauses are one sided as alleged in complaint.
3.3 The OP narrates circumstances in paragraph 10 of the reply, enumerating (i) to (xii) situations to be beyond the control of OP despite OP was making endevour to complete the project, the same are labeled as force-majeure, some of them have already been mentioned in paragraph 1.2 above and other reasons cited are shortage of labour force faced by the construction industry due to plights of labour under MGNREGA scheme of the Central Government; delay in supplying the stone aggregate and sand due to orders by Apex Court and High Court, heavy rains in Gurgaon, delay in supplying in cement and steel due to various agitation in Haryana; official restriction on the extraction of ground water for construction purposes, delay in re-routing of 66 KVA wire by DHBVN; directives and other measures in respect of air quality; ban on constructions activities for a total period of 70 days between December 2016 to December 2019. The other allied partial restrictions were of stop entry of truck traffic into Delhi, stop uses of diesel generated sets for 128 days, no constructions activities for 174 days from 6 pm till 6 am, closure of brick kilns, hot mix plants and stone crushers.
In addition there was locked down in the country since March 2020 and there was stoppage of construction on account of the same.
3.4. The OP also denies other allegations of the complaint. The complainant is not genuine consumer, they invested in the apartment for quick financial gain but it was not happening due to adverse property market and they having gone beyond their means, they want to wriggle out of the contractual obligation and filed the complaint. The complainants are dabblers in the real estate. In February 2020 the complainant sought transfer of all deposited amount in some other unit, which proves that the complainants are holding more than one unit. The complainants have to give detail by way of affidavit that they have not booked any other plot unit, flat or shop jointly or severely in the project of OP or with other real estate project. They failed to adhere to the payment schedule and in fact it is OP feeling itself cheated.
The paragraph 16 of the written statement gives calculations that in case of cancellation of allotment, the amount refundable in November 2020 was Rs. 47,38,666.45. The complaint is not bona-fide and it is liable to be dismissed.
3.5. The written statement is accompanied with Board Resolution for contesting the complaint by OP, query raised, copy of expression of interest dated 01.11.2013, allotment letter dated 26.12.2013, builder-buyer agreement dated 27.07.2015 and copy of statement of account of complainant.
4. (Replication of complainants) – The complainants filed their detailed rejoinder dated 01.02.2022, briefly they deny the allegation of written statement but reaffirmed the complaint as correct, while deriving reasons from certain case law to fortify their plea. Briefly, the complainants adhere to the payment plan, the so-called force majeure clauses (compiled in paragraph 3.3 above) are not applicable, the project was not completed by the OP and possession was neither offered nor delivered to complainants till date. The complaint is correct.
5.1. (Evidence)-The complainant no. 1 Sh. Ravi Talwar filed his detailed affidavit of evidence coupled with all documentary record filed with the complaint. The complainant no. 2 filed her compact affidavit of evidence with a narration that the contents of affidavit of complainant no.1 are being reaffirmed as evidence of complainant no. 2.
5.2. The OP led evidence by filing detailed affidavit of its Authorised Representative Sh. Sanjeev Kumar Tirthani, affidavit is replica of the written statement with the support of all documentary record filed with the written statement.
6.1 (Final hearing)- The complainants and the OP filed their written arguments. Both the parties have also supplemented their contentions with the case law. Shri Siddharth Karnawat Advocate for complainants and Shri Dinesh Prashar, Advocate for OP made oral submissions.
6.2 During the course of arguments on the point of pecuniary jurisdiction, Ld. Counsel for OP contends that the complaint was filed seeking recovery of Rs.72,20,578/- and the pecuniary jurisdiction of the District Commission is upto Rs. 50,00,000/-, therefore, the complaint is beyond the pecuniary jurisdiction of this Commission. Whereas, according to the complainants when the complaint was filed, the pecuniary jurisdiction of District Commission was upto rupees one crore but later-on it was modified by way of notification upto Rs. 50 lakhs, the complaint filed has to be continued as it was prior to that notification. The complainants derive their reasons from the following-
(a) Neena Aneja vs Jai Prakash Associates Ltd. (2022) 2 SCC 161 held that “for the above reasons, we have come to the conclusion that proceedings instituted before the commencement of the Act of 2019 on 20th July 2020 would continue before the Fora corresponding to those under the Act of 1986 (the National Commission, State Commissions and District Commissions) and not be transferred in terms of the pecuniary jurisdiction set for the Fora established under the Act of 2019.”
(b) M/s Southfield Paints & Chemicals Pvt. Ltd. vs. New India Assurance Co. Ltd. & Anr (OP no. 286 of 2000) held that “we respectfully agree with the law laid down by this Commission in Premier Automobiles case (supra). Otherwise also, the law laid down by the commission in the aforesaid judgment is a binding precedent. Respectfully following the said decision, it is held that the amendments brought about by the Amendment Act 62 of 2002 regarding pecuniary jurisdiction of the District Forum, State Commission and this Commission are prospective in nature. The plea raised by the opposite parties that the amendments are retrospective in nature is rejected.”
(c) CIT vs Vatika Township Private Limited (2015) 1 SCC 1, wherein the principle of retrospective effect of legislation was discussed and held that unless there is specific intention of the legislature to effect the retrospective effect, the law will b operated prospectively.
6.3.1 With regard to other bone of contentions in the complaint and evidence, the complainants rely upon-
(i) Pioneer Urban Land & Infrastructure Ltd. vs Govindan Raghavan Civil Appeal No. 12238/2018 held that: “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 incorporation of such one-side 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.”
(ii) Lucknow Development Authority vs. M.K. Gupta [1994 SSC (1) 243] held that when a person hires the services of a builder, or a contractor, for construction and the same is for a consideration, it is a “service” as defined by Section 2(1)(o) of the Consumer Protection Act, 1986.
(iii) Wg. Cdr. Arifur Rahman Kan and Aleya Sultana vs DLF Southern Homes Pvt. Ltd., 2020 SCC Online SC 667 decided on 24.08.2020, has held that “ A failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within a contractually stipulated period amounts to a deficiency. There is a fault, shortcoming or inadequacy in the nature and manner of performance which has been undertaken to be performed in pursuance of the contract in relation to service.”
(iv) Sanjay Rastogi vs BPTP Limited and Anr. (CC no. 3580/ 2017 dod 18.06.2020 which has also been upheld by the Hon’ble Supreme Court in BPTP Limited vs Sanjay Rastogi (Civil Appeal no. 1001/2021) has observed that “(13)… OP has argued that the complainant is not a consumer and so cannot be a complainant under the Act. As to why he is not a consumer, the only reason advanced is a bland averment that he stays in Oman and is an investor. Beyond this, nothing of any substance or evidentiary value has been put forth to support this contention. This objection of the OP is therefore rejected for two reasons. One, the complainant has clarified in the very first para of this plaint that he is not buying the unit for any commercial purpose. It is for the OP to prove otherwise. Two, commercial purpose requires that the complainant be shown to be in the business of buying and selling flats. No attempt has been made to prove this…”
(v) Yashpal Marwaha vs Pushpa Builders Ltd. MANU/CF/0228/2005: (II(2006 CPJ 259 (N.C.) has held that failure to rectify defects or delivery leads to a continuing cause of action.
The complainant further refers the following cases in which the present OP was also a party pertaining to the same project in question and those complaints were allowed for refund of amount by the Hon’ble National Commission, after determining same kind of objections raised by OP in those cases-
(vi) Yash Pal Sabharwal & Ors. Vs. Vatika Limited [CC. No. 1874 of 2018 dod 22.01.2020].
(vii) Bhanu Priya Vs M/s Vatika Limited [CC/535/2020 dod 03.12.2021].
(viii) Kanupriya Vijay Vs M/s Vatika Limited [CC/534/2020 dod 03.12.2021].
6.3.2 The OP opposed all the contentions of complainants that the OP was prevented by the situations, which were beyond its control and as per terms of agreement, they fall under force majeure clauses. Further, it is settled law that compensation cannot be awarded more than agreed in terms of agreement unless there exists substantial or exceptional reasons to do so, while relying upon GDA Vs. Balbir Singh (2004) 5 SCC 65. Moreover, if loss and injury is suffered by the complainant , it should be correlated with the amount and compensation for the same cannot be awarded at a uniform rate.
7.1 (Findings)- The rival contentions of both the sides are considered, keeping in view the material/evidence on record, the case law was presented, the statutory provisions of the Consumer Protection Act 2019 and notification dated 30.12.2021 by the Central Government, while revising the pecuniary jurisdiction of the District Commission.
7.2. At glance, there is no dispute that the complainants had booked the apartment and they were allotted the subject apartment against payments from time to time. The builder-buyer agreement dated 27.07.2015 is also not disputed and the total sale price of the apartment is Rs. 1,18,02,875/- and the complainants had paid total amount of Rs. 72,20,758/-. In other words, the consideration amount paid was Rs. 72,20,518/- out of total price of Rs. 1,18,02,875/-. Since, the complaint is under the Consumer Protection Act 2019 , the criteria for determining the pecuniary jurisdiction is consideration amount paid. However, the disputes are in respect of other law point, facts and features. All of them are being taken one by one.
7.3. [Issue of Pecuniary Jurisdiction] - The sole/substantial legal issue pertains to the pecuniary jurisdiction of the present District Commission and para 22 of the complaint is like a legal paragraph on the point of pecuniary jurisdiction of this Commission. The OP during the course of arguments raised objections on the pecuniary jurisdiction of this District Commission, although in reply dated 02.12.2020 [including reply to paragraph 22 of complaint], the OP asserts that it does not need any reply. To say, the OP deemed to have admitted the pecuniary jurisdiction of the present Commission in its reply in paragraph 22. The reason may that at that time, there no such notification dated 30.12.2021 of revision in pecuniary jurisdiction.
Since, it has been raised during arguments also, by referring provisions of the Act, 2019, therefore, it is appropriate to decide it.
7.3A. The OP refers notification pertaining to section 34 (i) (a) of the Consumer Protection Act 2019 that since the jurisdiction of the District Commission has been revised not to exceed Rs. 50 lakhs, the present consumer complaint showing amount of Rs. 72,20,578/- is beyond the pecuniary jurisdiction. But on the other side, the complainants contend that when complaint was filed, it was under the amount of rupees one crore as prescribed in section 34 (i) (a) of the Consumer Protection Act 2019, and for want of any further directions while modifying the pecuniary jurisdiction, the complaint is maintainable in the present District. The complainants also derive their reasons from the cases cited in sub-paragraph 6.2 above.
In order to resolve this rival plea/controversy of the parties, it needs to refer the specific dates being relevant for the enforceability of Act 2019 and the notification there- under. The Consumer Protection Act 2019 was made enforced with effect from 20.07.2020 and the pecuniary jurisdiction of the District Commission is not to exceed rupees one crore. However, there is notification [for proviso u/s 34 (i) (a) of the Consumer Protection Act 2019] regarding revising of pecuniary jurisdiction by the Central Government w.e.f. 30.12.2021, whereby the pecuniary jurisdiction was revised for not exceeding Rs. 50 lakh. This complaint was filed on 26.09.2020, which is after the enforceability of Act 2019 but prior to the date of notification of 30.12.2021. There was no transitional direction in the notification that the complaints having value more than Rs. 50 lakh but not exceeding Rs. 1 crore instituted prior to 30.12.2021 is to be dealt in a particular manner nor the revised jurisdiction is to be effective retrospectively. For want of such provision, it is abundantly clear, also from the law declared in precedent/case law (referred in paragraph 6.2 above), that the present complaint [in which total consideration amount paid is Rs. 72,20,578/-] is within the pecuniary jurisdiction of this Commission and the complaint filed on 26.9.2020 is maintainable in the present District Commission.
7.3B. In view of the discussion and conclusion in sub-paragraphs 7.3.1 and 7.3.2 above, it is held that this District Commission has pecuniary jurisdiction to adjudicate this complaint and issues involved. Accordingly, this objections of OP is disposed off.
7.4. [Whether or not complainants are consumers]- According to complainants, they booked the residential apartment and not only they paid the booking amount but also the installments if and when due or called for by the OP. Further, the OP had taken objection in the written statement as if the unit was for commercial or speculative purposes but the OP failed to prove it, vis-à-vis the unit was booked for residential purposes and not for commercial purposes. The complainants are consumers, they covered within the Act 2019.
Whereas, the OP has strong reservations that complainants are dabbler, they themselves write in para 4 of the complaint that they have invested the money, they invested the money for speculative purposes, however, when there was adverse market and they could not make gains out of that apartment, the complaint was filed. The complainants were also raised query to disclose by way of affidavit, whether they have booked any other unit, commercial or otherwise, in the other project of OP or project of others but they failed to responded. It clearly establishes that the unit was booked by them for speculative and commercial purposes.
At this stage the complainants refer the case of Yashpal Sabarwal and Others (supra) and also other cases mentioned in paragraph 6.3.1 that the OP had also taken similar objections in other case, which are reported cases, but those objections had not been proved and sustained., since it was clearly held that OP failed to establish such bald allegations.
7.4A. The rival contentions are clear, they are to be read with the pleadings referred in paragraph 3.4 and 3.2 along with the evidence of the parties. The apartment booked and allotted is in the residential project, which is an undisputed fact. By taking into account, the totality of documentary record, there was no specific column either in the booking form or in the allotment letter or in the builder-buyer agreement that the complainants booked the unit for commercial purposes. This plea has been taken by the OP in the written statement, therefore, the ones was on the OP to establish that the unit was booked for commercial purposes to make gain out of transaction of that apartment. Neither the complainants are in the business of trading the residential units to have their avocation nor the OP could establish that the complainants are in the business of real estate. As appearing, the OP is drawing inference from expression/word 'investment' mentioned in complaint, however, word 'investment' is not defined in the building-buyer agreement, therefore, its ordinary dictionary meaning is to be taken, which means ' act of putting in or into'; which may be 'money or efforts or time'. The word 'investment' mentioned in the complaint is not qualified by adjective 'commercial' being presumed by the OP and so asserted in the written statement.
Therefore, by taking into account, the circumstances of this case as well as the ratio of case law relied upon by the complainants, it is held that OP could not establish that the apartment was booked for commercial or trade purposes by the complainants. This objection of OP is disposed off against the OP.
It is settled law that the relationship of the OP and the complainants are of builder and of buyer of the apartment, which comes within the purview of consumer and there is existence of consumer disputes, therefore, it is also held that complainants are consumers within the definition prescribed under the Act 2019.
7.5 [whether or not project was ready or is there force majeure situation]- The complainants and the OP have juxtaposition stand against each other as the complainants contend that as per builder-buyers agreement dated 27.02.2015, the possessions was to be delivered within 48 months from the date of agreement. The OP failed to honour the commitments and the terms and conditions of contract, despite the complainant paid all the installments as per schedule of payment, if and when so demanded. The OP failed to complete the project and even the complainants had written letter dated 13.02.2020 to disclose the status of project, it was not responded by OP. However, by browsing the website, it revealed that the project was not only incomplete but its completion was also not expected in the near future and that is why as a last resort the complaint was filed in September 2020. The OP also could not prove that project was ready to offer possession or to deliver it to the complainants.
Even the project has not been materialized and there are number of other cases filed against the present OP, which have been decided by the Hon’ble National Commission and also reported (the complainant refers the cases already mentioned in paragraph 6.3.1 above). The OP is taking the stand as if there is force majeure, however, the same has been put in a vague manner and as a camouflage, as no concrete and specific periods are mentioned or the periods of 70 days or 128 days are unspecific (whether having common tenure therein) vis-à-vis the residential apartment was booked in 2013 and the agreement was of 27.07.2015 but the project was not completed even in 2020, which was much after the period of 48 months from the date of agreement. The plea of pandemic Covid-19 is also not at the avail of OP, which is much beyond the agreed period in March 2020.
On the other side, the OP contends that there was period of 12 months to make allotment of residential apartment from the date of booking and it was very much done within the agreed period. The period for handing over the possession was 48 months from the date of agreement dated 27.07.2015 but it was subject to other clauses in the agreement, especially clause no. 14 to 17 and 37, the circumstances detailed (which have been referred in paragraph 3.3 above) were beyond the control of OP and it was followed by pandemic Covid-19, therefore, the OP has not violated any of the terms and conditions of the agreement. The complaint is without cause of action.
7.5A. On plan reading of the rival contentions, it is undisputed that the OP failed to deliver the possession of the apartment to the complainants within 48 months from the date of agreement dated 27.07.2015, which ended in July 2019 and the present complaint was filed on 26.09.2020 that too after seeking status of the project from the OP by the complainants by writing letter dated 13.02.2020. The OP has reservation on the basis of force majeure that certain facts and circumstances were beyond its control to make the project complete. This delay cannot be attributed to the OP.
However, the records is abundantly clear that the OP has narrated certain circumstances but without proof thereof that in a particular span of time the project was at a particular stage and because of those reasons the project was halted. Had the project been not completed for those specific reasons, the OP was required to establish those facts and circumstances specifically to prove that it was prevented for carrying the project forward and to complete the same within time. Since, the OP failed to prove the exceptions of force majeure clauses, therefore, the terms and conditions of agreement being relied upon by the OP cannot be invoked in favour of OP. The pandemic Covid 19 had happened from March 2020 but OPs are trying to intermingled with the earlier period, the OP cannot derive any benefit since the period of 48 months ends in July 2019 and complainants had written letter dated 13.02.2020 while seeking information about the status of project and residential apartment from the OP, who failed to even respond to that letter but all of a sudden plea of force majeure was set up, which could have not been proved. The complaint was filed on 26.09.2020, this contention of the OP stand is disposed off against the OP.
7.6. [whether nor complainant is defaulter]- This is another limb of rival contention and both the sides are putting hard to each other. According to complainant the total amount agreed was Rs. 1,18,02,875/- and the complainants had paid total amount of Rs. 72,20,758/- from time to time as per schedule or when it was demanded by the OP, it was constructions payment linked plan. Since, the project remained incomplete and possession was not handed over till the filing of complaint, the complainants have no option but to seek return of the amount. They were never defaulter, the statement of account and receipts issued show the regular payment from time to time.
Whereas, according to OP, it was not a constructions linked plan but time plan, complainant had not adhered to time frame of payment schedule agreed. They are defaulter in tendering the payment and they want to wriggle out of the contractual obligations. In fact, for want of making gain of the said unit, they filed the complaint without cause of action and the allotment is to be treated as cancelled, for which amount payable is Rs 47,38,666.45, after appropriate deductions, as per calculation shown in paragraph 16 of the reply .
7.6A. It needs to look at the record to determine this controversy. Firstly receipt of amount of Rs. 72,20,758/- by OP from the complainants is not disputed. The dispute is with regard to other factors. As per schedule of payment mentioned in Annexure-I ( to the builder buyer agreement) depicts payment plan, there are two columns the left column shows period as well as stage of construction and correspondingly the right column shows the percentage of amount payable. At glance, part payment is time based upto 12 months period and then subsequently it is construction linked payment plan. This answers the contentions of both the sides.
Since, the payment plan is also construction linked plan after initial payments within 12 months period, however, the OP could not establish that what was the stage of the construction and correspondingly that particular phase, the amount was paid or not paid or partly paid by complainant. Therefore, the OP could not prove its case but complainants have proved that payments were made in time as demanded. It is held that complainants are not defaulter. The OP could not complete the project nor even OP offered the possession of the residential apartment to the complainants. This issue is decided against the OP.
7.7 In view of the aforementioned discussions and conclusions, it stands establish that the complainant has succeeded to prove that they have paid the amount of Rs. 72,20,758/- but OP failed to complete the project or to offer the possession of the apartment within stipulated period nor delivered it to the complainants. The complainants never asked for cancellation of their booking, rather prior to filing of the complaint, they have written letter dated 13.02.2020 to ascertain status of the project and the apartment from OP, it was not responded by the OP. There is no justifiable reason nor fair on the part of OP to portray an amount of Rs. 47,38,666.45p payable in lieu of the paid amount. Since, there is deficiency of services on the part of OP, the complainants are entitled for refund of entire amount of Rs. 72,20,758/-.
7.8 The complainants had claimed interest at the rate of 18%pa, it is opposed by the OP vehemently, however, in Bhanu Priya and Yash Pal Sabharwal cases (supra), the Hon’ble National Commission determined simple interest at the rate of 9% pa. Accordingly, the rate of interest is determined as 9% pa, but it will be payable from the date of complaint till realization of amount of Rs. 72,20,758/-.
7.9 The complainant has claimed compensation of Rs. 5,00,000/- lakh and litigation cost of Rs. 1,00,000/-, however, in Bhanu Priya case (supra) the component of compensation was included in the rate of interest allowed, therefore, no separate compensation is determined. The costs of Rs. 50,000/- was allowed in that case, accordingly, cost is also determined of Rs. 50,000/- in favour of complainants and against the OP.
8. Thus, the complaint is allowed in favour of complainants and against the OP while directing the OP to pay an amount of Rs. 72,20,758/- along with interest at the rate of 9% pa from the date of complaint till realization of the amount besides costs of Rs. 50,000/- payable within 30 days.
In case the amount is not paid by the OP within 30 days from the date of receipt of copy of this order, then the interest rate will be 11% pa on amount of Rs. 72,20,758/- (instead of rate of 9%pa).
9. Announced on this 4th day of December 2023 [अग्रहायण 13, साका 1945].
10. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for compliances besides upload on the website of this Commission.
[Inder Jeet Singh]
President
[Shahina]
Member (Female)
