1. Complainant Mr. Gagan Deep Raheja has filed the present complaint under Section 17 of the Consumer Protection Act, 1986 stating therein that father of the complainant Shri Jai Dev Raheja had booked a residential flat in the project of OP, namely, Green Escape at Kundali Sonepat, Haryana in February 2006 by making payment of Rs.2,50,000/- to the OP. OP vide allotment letter dated 15.12.2006 allotted a flat bearing No.120403 measuring 1250 sq. Ft. at a total basic sale price of Rs.20,62,500/-. It is stated that Shri Jai Dev Raheja transferred his rights in favour of the complainant and submitted requisite documents with the OP, which was duly received and acknowledgement by the OP on 17.01.2007. It is stated that thereafter in compliance of the demand of OP, complainant made payments as and when demanded. It is stated that when no intimation was received from OP, the complainant wrote a letter to OP on 16.11.2008 making enquiry about the progress of the said project. However, no reply was received from the OP.
2. It is stated that after waiting for some time complainant again wrote letter on 03.08.2009 followed by reminder dated 17.09.2009 to OP calling upon the OP to clarify the position regarding construction or to refund amount of Rs.4,09,375/- alongwith interest. OP vide letter dated 15.02.201 informed that the development work is in full swing and that it will keep the complainant informed about the progress of the work. It is stated that OP vide allotment letter dated 28.09.2011 allotted a new unit No.0103-0-320203 due to change in tower and also increased the area from 1250 sq. Ft to 1650 sq. Ft. without assigning any reason for fresh allotment/change of allotment. It is stated that thereafter a flat buyer agreement dated 08.10.2011 was entered into between the OP and complainant for the new unit at a total sale consideration of Rs.27,232,500/-. It is stated that though the terms and conditions were not acceptable to the complainant, however, due to fear of forfeiting of earnest money, complainant signed the said agreement. It is stated that believing the assurance of OP, complainant made total payment of Rs.32,04,653/-, which was duly acknowledged by the OP. It is stated that complainant also obtained loan of Rs.15,00,000/- from Canara Bank.3. It is stated that in terms of agreement, OP had agreed to handover the possession of the flat within 42 months with an extended period of six months from the date of execution of the agreement. The said period has already expired on 07.04.2015. It is stated that OP has failed to perform his part of the contract and respond to the interest of complainant. It is stated that complainant sent a legal notice dated 10.03.2016 calling upon the OP to deliver the possession of the flat and to pay interest on the amount deposited. However, no reply was received from the OP, therefore, complainant filed present complaint seeking direction to the OP to deliver the possession of the flat in question, to pay interest @20% per annum compounded quarterly on Rs.32,04,652/- and to pay interest @20% per annum compounded on Rs.4,09,375/- and compensation of Rs.10,00,000/-.
4. OP filed written statement wherein apart from denying the allegations of the complainant, the OP, inter-alia, raised several preliminary issues that complainant is not a consumer as booking is made with the intention of trading in the flat to earn profit, the complaint is barred by limitation and that this Commission has no territorial jurisdiction to deal with the matter. It is stated that the complaint is bad for non-joinder of parties as complainant has also not made the Canara Bank a party to the complaint as the Bank is having first lien over the flat.
5. On merits it was admitted that father of the complainant bad booked flat in the project of the OP, which was subsequently transferred in the name of the complainant. It is stated that due change in the layout plan the complainant’s booking was relocated and increase in the area is also admitted. It is also admitted that in terms of the agreement, the OP was liable to handover the possession of the flat in 42 months from the date of signing of the agreement with grace period of six months. OP has also admitted the execution of the Flat Buyer Agreement and the payments made by complainant. However, it is stated that defaults and delays occurred on the part of the complainant.
6. Rejoinder is filed by the complainant to the written statement of the OP wherein the allegations made by the OP against complainant are denied. The complainant has reiterated averments of the complaint case.
7. Complainant filed evidence in the form of affidavits alongwith written arguments. However, OP did not file evidence by way of affidavit despite giving sufficient opportunities and imposition of costs. Subsequently, right of the OP to file evidence by way of affidavit was closed vide order dated 14.02.2019. The said order has not been challenged by the OP.
8. Complainant has filed his own affidavit wherein averments made in the complaint case are reiterated on oath. Complainant has proved on record the receipt issued by OP dated 09.02.2006 Ex. CW-1/1; copy of allotment letter dated 15.12.2006 Ex. CW -1/2; copy of application for transfer Ex. CW -1/3; copy of letters dated 03.08.2009 and 17.09.2009 Ex. CW -1/4 (Colly); copy of letter dated 15.02.2010 Ex. CW -1/5; copy of second allotment letter dated 28.09.2011 Ex. CW -1/6; copy of flat buyer agreement dated 08.10.2011 Ex. CW -1/7; copies of receipts issued by OP Ex. CW-1/8/1 to 8/9; copy of statement of account Ex. CW-1/9; copy of loan interest statement and certificate of interest issued by Canara Bank Ex. CW -1/10 (Colly) and copy of legal notice dated 12.03.2016 with postal receipts Ex. CW -1/11 (colly).
9. Ld. Counsel for complainant has contended that OP has failed to fulfil its commitment and did not hand over the possession within 42 months as was assured by the OP. It is contended that there is no likelihood of the same being completed in near future. It is contended that the complainant has no option but to seek the refund of money. It is contended that nothing has also been placed on record by the OP to substantiate the delay and that OP is not a position to complete the project. It is submitted that money deposited by complainant be refunded with 24% as OP itself charges said interest on delay in payment.
10. Ihave heard the counsel for the complainant and perused the material on record, as no one appeared on behalf of the OP despite awaiting.
11. The first objection taken by the OP, to the effect that the complainant did not fall within the definition of "Consumer", as per the Consumer Protection Act, 1986 because the said property was bought by the complainant merely for speculation and not for any personal use, deserves rejection. It may be stated here that there is nothing on record to show that the complainant is the property dealer and deals in the sale and purchase of property, on regular basis, and as such, the unit, in question, was purchased by way of investment, with a view to resell the same, as and when, there was escalation in the prices thereof. Thus, in the absence of any cogent evidence, in support of the objection raised by the OP that complainant being an investor/speculator, did not fall within the definition of a consumer, cannot be taken into consideration. In a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31, Hon’ble National Commission, has held that the buyer(s) of the residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs Nirmala Devi Gupta, 2016 (2) CPJ 316. Not only this, in a case titled as Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14.09.2016, under similar circumstances, the National Commission negated the plea taken by the builder, while holding as under:-
"In the case of the purchase of the houses which a builder undertakes to construct for the buyer, the purchase can be said to be for a commercial purpose where it is shown, by producing evidence, that the buyer is engaged in the business of a buying and selling of houses and or plots as a trading activity, with a view to make profits by sale of such houses or plots. A person cannot be said to have purchased a house for a commercial purpose only by proving that he owns or had purchased more than one houses or plots. In a given case, separate houses may be purchased by a person for the individual use of his family members. A person owning a house in a city A may also purchase a house in city B for the purpose of staying in that house during short visits to that city. A person may buy two or three houses if the requirement of his family cannot be met in one house. Therefore, it would not be correct to say that in every case where a person owns more than one house, the acquisition of the house is for a commercial purpose."
12. The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. The complainant, thus, fall within the definition of a 'consumer', as defined under Section 2(1)(d) of the Act. Such an objection, taken by the OP, in the written statement, therefore, being devoid of merit, is rejected.13. As regards the objection that complaint is time barring, I find that complaint is not time barred. It is by now settled legal proposition that failure to deliver possession being a continuous wrong constitutes a recurrent cause of action and, therefore, so long as the possession is not delivered the buyers can always approach a Consumer Forum. In the present cases complainant has been requesting the OP for possession and when the possession is not delivered the complainant had written letters for refund of the amount alongwith the interest, however, OP did not refund the money, therefore, the cause of action continues to subsist in favour of the complainant. Reliance in this regard may be place upon the decision of the Hon'ble Supreme Court in Meerut Development Authority Vs. M.K. Gupta, IV(2012) CPJ 12 where the Hon'ble Supreme Court held that in such a case the buyer has a recurrent cause for filing a complaint for non-delivery of possession of the plot. Hence, the complaint is not barred by limitation. The objection raised in this regard is also rejected.
14. Another objection raised by the OP that this Commission has no territorial jurisdiction to deal with the present complaint. As per Clause 11.2 of the Agreement Ex. CW – 1/7, the courts where the land is located i.e. Sonepat shall have the jurisdiction. The objection raised is baseless. The Agreement Ex. CW -1/7 between the parties was executed at Delhi. Even the registered office of OP is at Delhi. Under Section 17(2) of the Act, this Commission has territorial jurisdiction to deal with the present complaint. It has been held by National Commission in catena of judgments that restriction of jurisdiction to a particular court need not be given any importance in the facts and circumstances of the case. Reliance is placed upon Radiant Infosystem Pvt. Ltd. & Others v. D. Adhilakshmi & Anr. 1(2013) CPJ 169 (NC).15. OP has also raised an objection that complaint is bad for non joinder of parties as complainant has also not made the Canara Bank a party to the complaint as loan was taken by the complainant from Canara Bank. In complaint, complainant has not sought any claim against Canara Bank from whom complainant has taken loan, as such, presence of Canara Bank is not required. Accordingly, the aforesaid objection is also rejected.
16. As regards the delay in handing over the possession, the OP has relied upon clause 5.1 read with clause 5.2 i.e. force majeure clause. However, OP has failed to prove that due to force majeure circumstances, which were beyond the control of the OP, the possession was delayed. In the absence of any force majeure circumstances having been faced by the OP or any other valid and legal reason beyond their control, the stand taken by them, in this regard, cannot be taken into consideration. Thus, under these circumstances, since as per Clause 5.1 of the Agreement, the OP was bound to deliver possession of the unit, within a maximum period of 48 months from the date of execution of the Agreement. Therefore, OP cannot evade their liability under the garb of aforesaid clauses. In view of above, the plea of the OP in this regard also stands rejected.
17. Though OP has alleged that complainant has defaulted in making payment as and when demanded. Be that as it may, the fact remains that complainant has made payment of Rs.32,04,653/-, which is over and above the agreed sale consideration of the flat in question.
18. It is admitted position that complainant was allotted flat in question and that the possession to be delivered by OP within a maximum period of 48 months. It is also admitted that no possession has been offered by the OP till the filing of the complaint or even thereafter and even till date. It is also admitted position that OP has received a sum of Rs.32,04,653/- from the complainant.
19. It is submitted by the Ld. Counsel for complainant that complainant has been deprived of the use of flat on account of default by OP which has caused serious injury to him as such the complainant be given suitable compensation. It is further submitted that OP has failed to explain the delay in completion of project and has rather mis-utilized the funds of complainant. Ld. Counsel prays for grant of suitable compensation.
20. It is admitted position that the OP has failed to complete the construction within the period of 48 months. The said period had lapsed long back. The present complaint is filed in the year 2016. Even at the stage of final arguments, the construction has not been completed. Even, OP has failed to give any specific period as to when the construction is likely to be completed. The stand of the OP is that the project could not be completed due to force majeure circumstances. However, OP has not been able to show that there were justified reasons for delay in handing over the possession. The same amounts to deficiency in service on the part of OP. In these circumstances, the complainant is justified in seeking refund of the amount which he has paid to the OP. The hard earned money of the complainant has been retained by the OP for number of years. The same has caused mental agony and harassment to the complainant.
21. As discussed above, OP has not been able to show any justified reasons for delay in completion of project. There is delay of about 12 years. The complainant has made out a clear case of deficiency in service on the part of the OP. The complainant cannot be compelled to wait for indefinite period for the possession of flat allotted to them, whenever it is offered by the OP. Reliance is placed upon judgment of Hon’ble Supreme Court in Fortune Infrastructure & Anr. v. Trevor D’Lima & Ors., (2018) 5 SCC 442, wherein it is held that a person cannot be made to wait indefinitely for possession of the flat allotted to him, and is entitled to seek refund of the amount paid by him, along with compensation.
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22. In Lucknow Development Authority v. M.K. Gupta, (1994) 1 SCC 243, Hon’ble Supreme Court has held that when possession of property is not delivered within the stipulated period, the delay so caused is denial of service. 23. It has also been held by the National Commission in catena of judgments that when possession of the allotted flat is not delivered within the specified time, the allottee is entitled to refund of amount paid, with reasonable interest thereon from the date of payment till the date of refund. Reliance is placed on the judgments of National Commission titled Subodh Pawar v. M/s Ireo Grace Realtech Pvt. Ltd. & 4 Ors. dated 24.09.2018 in CC No.1998/2016 and Amit Arora v. M/s Ireo Grace Realtech Pvt. Ltd. dated 27.03.2019 in CC No.696/2017. 24. Present is a clear case of deficiency in service on the part of OP. Complainant is legally entitled to seek refund of the money deposited by him with OP along with appropriate compensation. Though, complainant has prayed for award of interest @ 24% p.a., however, keeping in mind the facts and circumstances of the case, I award compensation in the form of interest @ 10% p.a. from date of deposit till realization. Accordingly, OP is directed as under:1)The Opposite Party is directed to refund the amount deposited by the complainant with the OP i.e. Rs.32,04,653/- along with compensation in the form of interest @ 10% p.a. from the date of each deposit till realization. 2)The Opposite Party shall also pay a sum of Rs.25,000/- towards cost of litigation to complainant. 25. A copy of this order as per statutory requirements be sent to the parties free of cost. Thereafter the file be consigned to record room.