Binoy Kumar, Member
The present Consumer Complaint has been filed under Section 21(a)(i) read with Section 12(1)(a) of the Consumer Protection Act, 1986 (for short “the Act”) by Mr. Dinesh Goyal (hereinafter referred to as the Complainant) against M/s Sepset Properties Private Limited (hereinafter referred to as the Opposite Party) seeking refund of Rs. 88,38,521 (Rupees Eighty One Lakh Thirty Eight Thousand Five Hundred and Twenty One) paid by him against the total consideration of the Unit booked along with interest.
2. The facts leading upto the present Complaint are that the Complainant booked an Apartment (hereinafter referred to as the ‘Unit’) in the Project “Paras Dews” of the Opposite Party situated at Sector-106, Gurgaon, Haryana. The Complainant vide allotment letter dated 10.1.2013 was allotted Unit No. 1904 in Tower- B,19th floor , Area- 1,760 sq.ft. The Complainant paid an amount of Rs. 27,43,349 (Twenty Seven Lakh Forty Three Thousand Three Hundred and Forty Nine Only) as part payment towards the purchase of the Unit before the execution of Builder Buyer Agreement (hereinafter referred to as the ‘Agreement’). The Agreement was signed on 29.4.2013 and the total consideration was Rs. 1,06,37,600 (One Crore Six Lakh Thirty Seven Thousand Six hundred Only).
3. The Complainant averred that the Agreement contained various One-side arbitrary clauses, but the Complainant could not negotiate any of the clauses because any disagreement or dispute would have resulted in cancellation of the allotment and forfeiture of the earnest money. He further stated that the Unit was to be delivered within a period of 42 months from the date of execution of the Agreement or the date of obtaining all licenses or approvals for commencement of construction whichever is later i.e. by April 2017. The Relevant portion of Clause 3.1 of the Agreement reads as under:
“..…the Seller proposes to hand over the possession of the Apartment to the Purchaser(s) within a period of 42 (Forty-Two) months with an additional grace period of 6(Six) months from the date of execution of this Agreement or date of obtaining of all licenses or approvals for commencement of construction, whichever is later, subject to Force Majeure. The Purchaser(s) agrees and understands that the Seller shall be entitled to grace period of 90 (Ninety) business days, after the expiry of grace period, for offer to hand over the possession of the Apartment to the Purchaser…”
4. The Complainant stated that as per clause E.1 of the Agreement the Opposite Party was granted all the necessary licenses and approvals by 29.12.2012. Therefore, the date of delivery of possession was to be calculated from the date of execution of the Agreement, i.e. from 29.4.2013. The Complainant opted for construction linked payment plan which was later changed to the subvention scheme payment plan vide an Addendum to the Agreement dates 24.4.2015 and made all the payments well within time. The Complainant also pointed out that the Complainant vailed a Home loan from Housing Development Finance Corporation Limited (HDFC).
5. The Complainant stated that as per Clause 4 of the Addendum to the Agreement the Opposite party also increased the total consideration of the Unit to Rs. 1,12,62,400 (One Crore twelve lakh Sixty Two Thousand Four Hundred Only). He further stated that the Opposite party has collected a sum of Rs. 88,38,521 (Eighty Eight Lakh Thirty Eight Thousand Five Hundred Twenty One Only) from the Complainant by February 2017 itself. However, despite collecting substantial amount of money, the Opposite Party failed to deliver the possession of the Unit as per promised date of possession, i.e. by April 2017 (including the grace period).
6. The Complainant stated that the Opposite Party issued the letter for offer of possession on 24.01.2019 after delay of more than 2 years from the promised date of possession which has frustrated the purpose behind purchasing the Unit. Further, the Project and the Unit is still under construction.
7. Thus, aggrieved by the delay in possession of its Unit, the Complainant has filed this Complaint with the following prayer to:
(i) Direct the Opposite Party to refund the total amount paid by the Complainant along with a penal interest @18% per annum from the date of receipt of each payment made to the Opposite Party;
(ii) Direct the Opposite Party to pay compensation of Rs. 5,00,000 (Five Lakh Only) to the Complainant for mental agony, harassment, discomfort and undue hardships caused to the Complainant as a result of the above acts and omissions on the part of the Opposite Party;
(iii) Direct the Opposite Party to pay a sum of Rs. 1,00,000(One Lakh Only) to the Complainant towards litigation costs; and
(iv) That any other and further relief in favour of the Complainant as the Hon’ble Commission may deem fit and proper in the fact and circumstances.
8. The Opposite Party has filed its written version and resisted the Complaint by taking objections as under:
(a) The Complainant is not a consumer under Section 2(1)(d) of the Act as he had purchased the Unit for investment purpose.
(b) The Opposite Party has obtained Occupancy Certificate on 15.1.2019 and offered possession to the Complainant on 24.1.2019 but he deliberately failed to clear the outstanding amount and take possession.
(c) The Opposite Party has completed the project as per the Agreement read with force majeure clause of the Agreement. Relevant portion of Clause 3.1 reads as under:
“Subject to Clause 10 herein or any other circumstances not anticipated and beyond the reasonable control of the Seller and any restraints/restrictions from any Courts/authorities and subject to the Purchaser(s) having complied with all the terms and conditions of this Agreement…
…The obligation of the Seller to offer possession to the Purchaser under this Clause shall be subject to Force Majeure.”
In view of the aforesaid facts and circumstances the Opposite Party has prayed this Commission to dismiss the present Complaint.
9. A Rejoinder was filed by the Complainant against the written version of the Opposite Party in which he stated that he purchased the Unit exclusively for the residence of his family, and not for any commercial purpose. He further states that as per the Agreement the extension of time could only be granted for reasons which were beyond the control of the Opposite Party which is absent in the present case.
10. We have heard the Learned Counsel of both the parties and have gone through material available on record.
11. The learned Counsel of the Opposite Party stated that the Complainant has not abided by the construction linked agreed payment plan, as per “Offer of Possession” dated 24.1.2019, the Complainant was to pay Rs. 31,73,240 alongwith Rs. 1,91,330 towards Two year Advance Maintenance Charges (AMC) and Club Charges and for that the Complainant was called upon several times to make payments but he did not pay any heed to the demand letters and show cause notices.
12. We will analyse the objections of the Opposite Party. The objection by the Opposite Party was that the Complainant is not a consumer under the Act, but an investor and has purchased the Unit for commercial purpose is rejected. In this regard, it would be proper to draw attention to this Commission’s Order in the case of Sanjay Rastogi v. BPTP Limited & Anr. in, CC No. 3580 of 2017, decided on 18.6.2020 which was upheld by Hon’ble Supreme Court. It has observed as under:
13. ” Similar observation has been taken in the order of this Commission in Sai Everest Developers v. Harbans Singh Kohli, 2015 SCC OnLine NCDRC 1895, decided on 21.7.2015, in which it was held that “ the Opposite Party should establish by way of documentary evidence that the Complainants were dealing in real estate or in the purchase and sale of the subject property for the purpose of making profits .”
14. The Objection that the delay was due to reasons beyond the control of the Opposite Party or due to Force Majeure circumstances is devoid of merit. In this regard, attention is drawn to Order of this Commission in CC 379 of 2013, Sivarama Sarma Jonnalagadda & Anr v. M/s Maruthi Corporation Limited & Anr., IV (2021) CPJ 131 (NC), decided on 21.9.2021 wherein it was held that:
“We are of the view that that the Complainant cannot be made to wait indefinitely for the delivery of possession and the act of the Opposite Party in relying on force majeure clause while retaining the amounts deposited by the Complainant , is not on only an act of deficiency of service but also amounts to unfair trade practice.”
15. The relief provide under Clause 3.3 of the Agreement, i.e. Rs. 5 per sq.ft. per month for delayed period is unreasonable which clearly indicates that the Agreement is one-sided and arbitrary. In this regard, attention is drawn to the Order of the Hon’ble Supreme Court in Pioneer Urban Land & Infrastructure Ltd. v. Govindan Raghvan, II (2019) CPJ 34 (SC)=III (2019) SLT 435, decided on 2.4.2019 it was held as under:
“6.7. 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 contractual terms of the Agreement of 8.5.2012 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 flats by the Builder.
7. In view of above discussion, we have no hesitation in holding that the terms of the Apartment Buyer’s Agreement dated 8.5.2012 were wholly one-sided and unfair to the Respondent-Flat Purchaser. The Appellant-Builder cannot seek to bind the Respondent with such one-sided contractual terms.”
16. In another Order of Hon’ble Supreme Court in Ireo Grace Realtech Pvt. Ltd. v. Abhishek Khanna & Anr., I (2021) CPJ 60 (SC)=I (2021) SLT 337=Civil Appeal No. 5785 of 2019 , decided on 11.1.2021, it was observed as under:
“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)(v) of the Consumer Protection Act…….”
17. We find that there is no doubt to the fact that there has been an unreasonable delay in handing over the possession of the Unit to the Complainant as per “the Agreement”. The Complainant cannot wait for an indefinite time as it had invested heavy amount with the intention to get the possession of the Unit on time. There are a number of Case Laws wherein the Hon’ble Supreme Court and this Commission has decided favourably on the right of the buyers for getting refund of their money in case of undue and unreasonable delay by the Developer in giving possession in terms of the Agreement.
18. Reliance is placed on the Order of this Commission in Emmar MGF Land Ltd. & Ors. v. Amit Puri, II (2015) CPJ 568 (NC), wherein it was laid down as under:
“It hat after the promised date of delivery, it is the discretion of the Complainant whether he wants to accept the offer of possession, if any, or seek refund of the amounts paid with reasonable interest.”
19. Reliance is placed on the judgment of the Hon’ble Supreme Court in Kolkata West International City Pvt. Ltd. v. Devasis Rudra, II (2019) CPJ 29 (SC)=III (2019) SLT 631, decided on 25.3.2021 in which 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.”
20. In another Landmark judgement of Hon’ble Supreme Court, titled Pioneer Urban Land & Infrastructure Ltd. v. Govindan Raghvan (supra), it was held as under:
“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 22 Respondent-Flat Purchaser was entitled to be granted the relief prayed for, i.e
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. refund of the entire amount deposited by him with Interest”. 21. There has been unreasonable delay on the part of the Opposite Party in completing the construction of the Project and the Unit. It is a fact that the Agreement was signed on 29.4.2013. As per clause 3.1 of the Agreement the construction of the Project was to be completed within a period of 42 months with a grace period of 6 (six) months. Thus, the possession of the Unit should have been delivered to the Complainant by April 2017. While the Opposite Party has obtained the Occupancy Certificate on 15.1.2019 and thereafter offered possession to the Opposite Party on 24.1.2019 as per the Written Version of the Opposite Party, the construction of the Project is in full swing. Even otherwise, thus there is a delay of around 2 years from the promised day of possession for which the Opposite Party has not given any valid justification. Therefore, the Complainant is entitled to fair and reasonable delay compensation. 22. In view of the discussion above, the Consumer Complaint is partly allowed. The Opposite Party is directed to refund the entire amount paid by the Complainant with a delay compensation @ 6% per annum simple interest from the respective dates of deposits till realization, within a period of six weeks of this Order. Any delay beyond six weeks, will attract an interest rate of 9% per annum simple interest for the same period. 23. All pending applications, if any, stand disposed of. Ordered accordingly.