Subhash Chandra, Member
This complaint has been filed under section 12(1)(A) read with Section 21 of the Consumer Protection Act, 1986 (in short, the ‘Act’) alleging deficiency in services and unfair trade practice in respect of the apartment booked by the complainants with the opposite party.
2. In brief, the facts of the case are that the complainants had booked a residential flat in the project ‘Palm Gardens’, Sector 83, Gurgaon, Haryana being developed by the opposite party by way of transfer letter endorsing a booking originally done in the name of one Mr Rajesh Mayor vide nomination letter dated 01.09.2014 who had booked the flat on 31.10.2011 and was provisionally allotted unit number PGN-12-0504, 5th Floor, Tower 12 admeasuring 1720 sq ft for a sale consideration of Rs 90,00,341/-. The present complainant thus stepped into the shoes of the original allottee by virtue of the transfer letter endorsed by the opposite party on 01.09.2014. The Builder Buyer’s Agreement (in short, BBA) signed between the original allottee and the opposite party on 17.02.2012 promised possession after 36 months, with a grace period of 3 months. The BBA was endorsed in the name of the complainant on 01.09.2014 on payment of Rs 22,45,437/- to opposite party. However, possession promised by February, 2016 has not been done despite payment of Rs 85,40,064/- by the complainants as on the date of filing of this complaint.
3. Alleging failure to hand over possession of the flat as promised and non-acquisition of the green area for which preferred location charges (PLC) was collected, the complainants are before us with the following prayer:
i. direct the opposite party for an immediate 100% refund of the total amount of Rs 85,40,064/- paid by the complainants, along with a penal interest of 18% per annum from the date of receipt of the payments made to the opposite party;
ii. direct the opposite party to pay compensation of Rs 10,00,000/- 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 to the complainant as a whole, towards litigation costs;
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 of the case.
4. The opposite party has resisted the complaint by way of reply. The averments of the complainants have been denied and it has been contended that the complainants are not entitled to claim compensation being transferees; complainants are not ‘consumers’ within the definition of section 2(1)(d)(ii) of the Act as they have invested for speculative purposes; this Commission lacks jurisdiction in view of clause 32 of the ABA providing for arbitration and that there has been no deficiency in service as time was not of the essence in the Agreement for delivery of possession. It is also contended that the Apex Court has held that compensation can be awarded by consumer fora only if negligence of opposite party is proved; that complainants are defaulters in payments and that the complaint is barred by limitation under section 24A of the Act.
5. Parties led their evidences and filed their written statements. We have heard the learned counsels for the parties and perused the records carefully. Admittedly, there has been a delay in the handing over the subject flat. The opposite party has not denied the receipt of Rs. 85,40,064/- towards the sale consideration, but has denied making false or misleading promises and averred that the sector road was not its responsibility but that of Haryana Urban Development Authority (HUDA). Reasons for the delay in completing the project and obtaining an occupation certificate advanced by the opposite party are that there were contractual issues with M/s IL&FS the contractors and that this constituted a force majeure clause. An offer of possession dated 24.10.2019 has now been sent to the complainants.
6. Opposite party has relied upon the judgement of the Hon’ble Supreme Court in Ireo Grace Realtech Pvt Ltd Vs. Abhishek Khanna & Ors 2021 SCC OnLine SC 14 that since possession is offered the complainant is under obligation to accept possession. He has also relied upon judgments of the Hon’ble Supreme Court in DLF Homes Panchkula Pvt Ltd Vs. D.S. Dhanda II (2019) CPJ 117 (SC) that when interest is awarded by way of damages, awarding additional compensation is unjustified and Laureate Buildwell Pvt Ltd Vs. Charanjeet Singh V (2021) SLT 10 that in the case of a subsequent purchaser of a flat, the builder’s obligation applies from the date of transfer.
7. Learned counsel for the complainants has claimed refund of the amount deposited with the opposite party with interest. Reliance has been placed on the judgement of the Hon’ble Supreme Court in Experion Developers Pvt Ltd Vs. Sushma Ashok Shiroor in CA 6044 of 2019 in support of the averment that he is entitled to refund even if an offer of possession has been made by the opposite party during the pendency of the appeal and that he is entitled to interest at 9% from the respective dates of deposit, with effect from 01.09.2019, the date the buyer’s agreement was endorsed in the name of the complainants.
8. Admittedly the complainants stepped into the shoes of the original allottee of the subject flat on 01.09.2014. Accordingly, following Laureate Buildwell Pvt Ltd (supra), the obligations of the opposite party will apply from that date. The opposite party has made an offer of possession to the complainant dated 29.10.2019. In its judgement dated 02.04.2019 in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan & Connected Matter in Civil Appeal No. 3182 of 2019 the Hon’ble Supreme Court has held that an allottee cannot be compelled to accept possession of an apartment which has not been completed within the promised date even if an offer of possession is made during the pendency of the case. It is also relevant to recall this Commission’s order in Emmar MGF Land and Ors. Vs Amit Puri – II (2015) CPJ 568 (NC) dated 30.03.2015 which held that after the promised date of delivery it was discretion of the complainant whether or not to accept the offer of possession or seek refund with some reasonable compensation. In the instant case, the opposite party has made an offer of possession on 29.10.2019 during the pendency of the complaint. The complainants have, however, prayed for refund with interest of the amount deposited. We are therefore inclined to the view that this is a case of unreasonable delay in offering possession, and therefore the complainants cannot be compelled to accept possession at a belated stage and are entitled to seek refund of the amount paid with compensation although this would be only from the date the complainants stepped into the shoes of the original allottee, i.e. 01.09.2014.
9. As regards the opposite party’s contention that this Commission lacks jurisdiction in view of the provision for arbitration in the Agreement, it is relevant to note that this issue has been settled by the Hon’ble Supreme Court in M/s Emaar MGF Land Limited Vs. Aftab Singh I (2019) CPJ 5 (SC) wherein it was held that an arbitration clause in the Agreement does not bar the jurisdiction of the consumer fora to entertain the complaint. Hence, the objection of the opposite party that the clause of arbitration bars this Commission from entertaining the complaint is unsustainable.
10. The opposite party has also contended that the complainant is not a consumer within the definition of section 2 (i) (d) of the Act. This assertion needs to be considered in the light of the documentary evidence submitted. From the records it is seen that the opposite party has not submitted any evidence in support of this assertion. In Kavita Ahuja Vs. Shipra Estates I (2016) CPJ 31 it has been categorically laid down by this Commission that the onus of proving that complainants are not consumers lies upon the opposite party which in the instant case it has failed to prove by way of any documentary evidence. This contention is therefore not valid.
11. The Hon’ble Supreme Court’s judgment in Abhishek Khanna (supra) pertains to a specific case based upon the facts of th
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at case and does not lay down any principles. Therefore, the same does not apply in this case. 12. In view of the foregoing, we are of the considered view that the opposite party has been deficient in not making an offer of possession of the subject flat to the complainants within the stipulated period of February, 2016. We, therefore, find merit in the complaint and allow the same with the following directions: (i) Opposite party is directed to refund the entire amount of Rs.85,40,064/- deposited by the complainants along with 9% simple interest on it from the dates of respective deposits from 01.09.2014 till the date of realisation; (ii) Opposite party shall also remit Rs 50,000/- as litigation cost; (iii) Order be complied within 12 weeks failing which penal interest of 12% shall be paid to the complainant. 13. The complaint is accordingly disposed of with these directions.