Dr. Inder Jit Singh, Member
1. The present Consumer Complaint (CC) has been filed by the Complainants against the opposite parties as detailed above, inter aila praying for (i) refund of an amount of Rs.78,74,409/- paid by the complainants to the opposite parties alongwith interest @18% p.a., (ii) Rs.5,00,000/- as compensation on account of mental agony and harassment and (iii) to pay Rs.50,000/- towards legal expenses etc.
2. Notice was issued to the opposite parties on 19.12.2018 giving them 30 days’ time to file their written statement.
3. It is averred/stated in the complaint that:-
i) the complainants booked an apartment in the project ORB Tower of the Opposite Party at Sector-74, Noida in the year 2012 for a total consideration of Rs.1,34,95,925/- and were allotted a Unit No. RO290PU1602. Out of the total consideration for this unit, the complainants paid Rs.55,86,019/- upto May 2014 to the opposite party An allotment agreement was entered into between the parties on 13.02.2013, as per which, the committed date of possession was July, 2015. As the possession was not delivered by this time, the complainants approached for refund of the amount paid by them. But instead of refunding the amount, the OPs made an offer to the complainants to shift to their other project in the Super Nova at Plot No. 3, Sector-94, Noida. The complainants had no option but to accept the alternative apartment in the project offered by the OPs as the OPs and their agents stated that in case the complainants sought refund, the OPs would deduct the earnest money on the amount paid. As per the new agreement dated 23.07.2015 signed between the parties, the OPs promised to deliver the possession of the Unit No. 702 in the project Super Nova within two years from new booking i.e. by December 2016, with a grace period of six months. Complainants paid a total amount of Rs.78,74,409/- to the OPs for the Unit in Super Nova, including the amount transferred from the previous project. The total consideration for the Unit allotted in Super Nova was Rs.1,89,67,823/-. OP-1 and OP-2 are sister concerns, the booking in the project ORB was made against OP-2 while on transfer the allotment agreement was signed with OP-1.
ii) The complainants accepted the allocation of the apartment in the Super Nova Project only because the OPs promised to deliver within two years from new booking, i.e. latest by December 2016, with a grace period of 6 months. The payment was to be made in the ratio of 40:60 plan, i.e. 40% payment of the total consideration within 60 days of booking and the rest on offer of possession. The complainants made the payment as per the plan.
iii) The complainants received a letter dated 24.10.2018 through email titled as the Pre possession formalities to receive the amounts due on the offer of the possession, but the unit was still not ready for possession . The OPs also raised the demands for the advance maintenance without even offering possession and without even completing the unit.
iv) OPs are guilty of rendering deficient services and unfair trade practices.
4. OPs in their written statement/reply, while admitting the basic facts relating to allotment of unit in earlier project, transfer to the new project, payment by the complainants, committed dates for possession as per allotment agreement etc. have stated that :-
i. The Commission lacks pecuniary jurisdiction. Complainants are not consumers having bought it for investment/commercial purposes, in case of dispute matter needs to be referred to arbitration, the complaint is not maintainable because of the existence of alternative and subject specific forum for adjudication i.e. UPRERA.
ii. The OPs obtained occupation certificate on 18.07.2018 and initiated pre-possession formalities by sending Pre-possession Demand Notice dated 25.10.2018, but the complainants failed to pay the amount as per demand notice.
iii. As per allotment letter, OPs are entitled to charge escalation cost from the complainants on the basis of standard formula adopted in the construction industry, OPs are also entitled to advance maintenance charges.
iv. In view of occupation certificate having been obtained, complainants are bound to take possession.
5. Evidence by way of affidavit was filed by the complainants on 15.04.2019 and affidavit of evidence was filed by the OP on 03.08.2021 broadly on the lines of averments made in the complaint.
6. Heard counsels of both sides.
7. The contention of OPs 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 Rupees one crore. The contention that complainant is not a consumer as he has purchased the unit for investment/commercial purpose is also rejected as no such evidence has been adduced by the OPs in this regard. The plea of OPs that delay was due to reasons/circumstances beyond the control of OPs, is not valid as even after a gap of more than five years from the committed date given in the agreement, possession of flat has not been given even in the new project. The plea of OPs that the RERA is the Competent Authority to decide the matter is also not valid as remedies under the Consumer Protection Act are/were in addition to the remedies available under special statue”. Hence, this Commission has the jurisdiction to entertain this complaint.
8. In the instant case, there is an inordinate delay in handing over the possession of flat by the OPs. The complainants cannot be made to wait for an indefinite time and suffer financially. Hence, the complainant in the present circumstances have a legitimate right to claim refund alongwith fair delay compensation/interest from the OPs. The plea of OPs for entitlement of refund to the complainant in accordance with provisions agreement, which entails forfeiture of 15% of total cost of the unit, is not valid.
9. For the reasons stated hereinabove, and after giving a thoughtful consideration to the entire facts and circumstances of the case, various pleas raised by the learned Counsel for the Parties, the Consumer Complaint is allowed/disposed off with the following directions/reliefs: -
i. The OPs shall refund the entire principal amount of Rs.78,74,409/- (Rupees seventy eight lakh seventy four thousand four hundred nine only) to the complainant, along with compensation in the form of simple interest @ 9% per annum from the date of each payment till the date of refund. The principal amount refundable mentioned in this para is subject to verification of actual amount paid by the complainant based on receipts etc.
(ii) The OPs shall pay a sum of Rs.50,000/- as cost of litigati
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on to the complainants. (iii) The payment in terms of this order shall be paid within three months from today. iv. Liability of OP-1 and OP-2 shall be joint & several. (v) In case the complainant has taken loan from Bank(s)/other financial institution(s) and the same/any portion of the same is still outstanding, the refund amount will be first utilized for repaying the outstanding amount of such loans and balance will be retained by the complainant.The complainant would submit the requisite documents from the concerned bank(s)/financial institution(s) to the OP(s) four weeks from receipt of this order to enable them to issue refund cheques/drafts accordingly. 10. The pending IAs, if any, also stand disposed off.