1. The complainant has come forward with the plea that she applied for booking allotment and registration of Unit No.IN3/1702 Type-R, 17th Floor measuring about 1095 sq. ft. for Rs.48,68,365/- in OP’s project “Eldeco Inspire” at Aamantran project being developed by OP at Sector-119, Noida, UP. Copy of allotment certificate and agreement dated 26.04.2013 is annexure-A. She is a consumer within the meaning of Section 2(1) (d) of Consumer Protection Act as residential flat was booked by her with a desire to establish her permanent residence. The OP is errant, dominating builder who has taken undue advantage of its dominating position and is liable for deficiency in service and unfair trade practice.
2. The crux of dispute is delay in completion of project on the part of OP and failure to handover the possession of the flats to the buyers, non payment of adequate compensation for such delay and refusal to entertain request for cancellation of allotment and refund entire sale consideration paid with interest. She made different payments as mentioned in para-6 of the complaint. Total of the same comes to Rs.44,03,407/- till April, 2017 which is 90% of the total amount. The OP was to handover the possession of the flat within 36 months from the date of agreement i.e. by 26.04.2016. Between January, 2016 and April, 2016, she made several visits to the project site to enquire about status of construction. She was given false assurances that construction was in progress as per schedule and possession would be handed over as per timelines on 26.04.2016. The flat was nowhere near completion. The OP raised a further demand vide mail/ letter dated 09.08.2017. On receipt of the same, the complainant made physical visits to the site and it seemed that delivery would take atleast another 18 months or more. During December, 2017 she approached the OP and requested to handover the possession or refund the entire consideration with interest calculated from the agreed date of delivery of possession till actual date of refund. Upon being agitated by inordinate delay, she visited the office of OP and requested to cancel the allotment and refund the amount with interest which OP flatly refused. The very purpose of the complainant purchasing the said unit had become worthless. She served legal notice dated 24.01.2018
3. As per Clause-C of buyers agreement, in the event of delay in handing over the possession beyond scheduled delivery date, the OP is bound to pay Rs.5/- per sq. ft. per month as penalty for delay. The delay has considerably increased to almost 23 months. Minimal compensation of Rs.1,25,925/- per sq. ft. per month would in no way qualify as adequate compensation. She is entitled to refund with interest @18% per annum from the date of booking i.e. 26.04.2013 till realisation and Rs.10 lacs as compensation for mental trauma and inconvenience suffered by her. Hence, this complaint for directing OP to refund Rs.44,03,407/- with interest @18% per annum from respective dates of payments till date of refund, to pay delay penalty as per agreement @Rs.5/- per sq.ft. for the period of delay, compensation of Rs.10 lacs towards undue harassment, discomfort, inconvenience, loss of time, injury and agony. She has also prayed for litigation cost of Rs.5 lacs.
4. The OP filed WS raising preliminary objection that complaint does not constitute consumer dispute. The complainant is seeking reliefs which relate to contractual matter arising out of the terms and conditions of the agreement and interpretation thereof which can be adjudicated in civil proceedings. There is no deficiency in service. The complainant is not a consumer within the meaning of Section 2(d) of Consumer Protection Act as she has purchased the flat for resale purpose with sole intension of investment. The complaint has been filed malafide with sole motive to gain unlawful relief. The OP made preliminary submissions that Clause-C of the agreement provides grace period of six months subject to receipt of requisite building plans/revised building plans/ other approvals and permissions from concerned authorities, force-majeure conditions, subject to fulfilment of terms and conditions of allotment. Force Majeure was defined as performance being prevented, delayed or hindered by any reason beyond the control of OP which could not be prevented or reasonably overcome by the OP with the exercise of reasonable skill and care and does not result from the negligence or misconduct of the OP. The same includes non receipt of critical approvals, environmental clearances, non-availability of any building material and labour or enemy actions or natural calamities or strike, lockout or other labour disorder, de facto Government, revolution, civil disturbance etc. Environmental clearance prior to start of construction for which application was moved by the OP on January, 2013 and was granted in the month of October, 2013 resulting in loss of 11 months. Due to absolute ban by the NGT on extraction of ground water in Noida, adequate and regular supply of STP recycled water was not available due to which the structure and plaster work for severely hampered. In Original application 158(THC)/2013 popularly known as “Okhla Bird Sanctuary case” NGT passed an order banning construction activities in Noida in April, 2014 which was vacated in April,2015. Noida authority directed adherence to sound pollution level at night which impacted the working hours from 15 hours to 11 hours daily. Due to demonetisation there was slow down in the construction activity. Due to implementation of goods and services tax w.e.f. 01.07.2017, construction material went in short supply. There have been sporadic bans on mining of river sand which have also caused work to get stopped multiple times. OP filed email dated 17.07.2014, 06.11.2018 apprising complainant about reasons for delay in construction.
5. On merits the OP admitted para-1 & 2 of the complaint. Vide email dated 13.01.2016 it waived interest of Rs.5222/- which was charged in respect of delay in payment. It denied that complainant ever requested for refund/cancellation. Proposed date for issuing offer of possession was June, 2016. It denied that complainant is entitled to Rs.10 lacs as compensation. It prayed for dismissal of complaint.
6. The complainant has filed rejoinder controverting the defence of the OP and reiterating her own case as set up in the complaint. Complainant’s plea is that in DLF Homes Panchkula Pvt. Ltd. Vs. D.S. Dhanda and Ors. I (2019) CPJ 218, National Commission has held that stoppage of construction activities due to reasons such as delay in getting statutory approvals, shortage of labour, ban on constructions by court order, litigation apropos acquisition of land etc., cannot be construed to mean ‘force majeure’. She also filed her own affidavit in evidence.
7. On the other hand, the OP filed affidavit of Ms. Richa Gupta Rohatgi, AR in evidence. The same is on the lines of defence taken in the WS.8. Both the parties have filed written arguments. During pendency of the case, the complainant filed copy of demand notice dated 28.09.2019 and 03.10.2019 which mentioned that in case of any delay in taking possession beyond 90 days, complainant would have to pay holding charges @Rs.5/- per sq.ft. per month and safeguard charges @Rs.2.5/- per sq.ft. per month respectively for the period of delay. The complainant stated that agreement was entered in 2013. Agreement provided period of 36 months for completion of flat and handing over of possession which expired in 2016, now in 2019 after delay of about three years complainant cannot be compelled to take possession as per law laid down by Hon’ble Supreme Court in Fortune Infrastructure and Ors. Vs. Trevor D ‘Lima and Ors. She relied upon another decision of Hon’ble Supreme Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, 2019 SCC Online SC 458. Thus, vide order dated 30.10.2019, OP was restrained from levying holding charges and safeguard charges till disposal of the complaint. Despite that OP continued sending reminders demanding the charges.
9. I have gone through the material on record and heard the arguments. Counsel for complainant submitted that burden of proving that complainant was not a consumer was on the OP as per decision of National Commission in Kavita Ahuja Vs. Shipra Estates I (2016) CPJ 31. The OP has not led any evidence to establish its objection. It is not a case of multiple booking. It is not a case of OP that complainant purchased any other unit in the past or sold the same after earning profit. Moreover, the OP has not pressed on this defence in its written arguments. Thus, objection of OP is turned down.
10. Counsel for complainant urged that in Ajay Kumar Vs. Supertech (2019) SCC Online NCDRC 63, National Commission held that inordinate delay by builder in the delivery of flat’s possession amounts to deficiency in service. In the present case, there is delay of more than three years. As per decision of National Commission in Ajay Nagpal Vs. Today Homes and Infrastructures Pvt. Ltd., National Commission held that delay in handing over possession falls u/s 2(e) of Consumer Protection Act. Submission of counsel for complainant seems to be sound.
11. Counsel for complainant went on to urge that as per decision of National Commission in Shalabh Nigam Vs. Orris Infrastructures Pvt. Ltd. and Ors. MANU/CF/ 0287/2019, the homebuyers can seek refund if flat is delayed beyond one year. In the present case, there has been delay of over four years and for this reason the complainant is well within its right to claim refund with interest, on cancellation of the allotment. Similarly as per decision of Hon’ble Supreme Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, 2019 SCC Online SC 458 homebuyers cannot be made to suffer and wait indefinitely for possession of the flat allotted to him and is entitled to seek refund of the amount paid by him, alongwith compensation. Same proposition of laid down by Hon’ble Supreme Court in Fortune Infrastructures and Ors. Vs. Trevor D ‘Lima and Ors.MANU/SC/0253/2018. Again arguments appears to be well founded.
12. The plea of force majeure taken by the OP is bound to be turned down in view of decision in DLF Homes Panchkula Pvt. Ltd. Vs. D.S. Dhanda and Ors.(supra).
13. Regarding interest, counsel for complainant contended that clause (3) of agreement provided for delay compensation @Rs.5/- per sq.ft. per month on the super area is one sided clause. It comes out approximately 1.3% rate of interest per annum whereas the developer claims interest @18% per annum as per clause C of the agreement. Such one sided clause 3 was held to be unfair trade practice by Hon’ble Supreme Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan (supra). The argument is quite germane.
14. Per contra, counsel for OP gave three alternative offers during the course of arguments on 18.06.2020. One was free maintenance for five years which comes to around Rs.5 lacs. Alongwith this, the OP offered to provide first transfer of flat free of charges in which complainant would save Rs.1.5 lacs. The second proposal was a discount of Rs.3 lacs and no interest on delayed payment which would enable the complainant to save Rs.8 lacs. The third proposal made by counsel for OP was that OP may be permitted to dispose of the flat which would fetch around Rs.50-60 lacs and then pay the amount to the complainant.
15. All the three proposals were not acceptable to the complainant. Her counsel stated that maintenance can be charged only after delivery of possession. Regarding second proposal, he submitted that there is no delay in payment. Complainant has already paid 90% of the amount in time. Despite that there was delay on the part of OP. So offer of waiving interest to the tune of Rs.8 lacs is f
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ake. 16. Counsel for OP submitted that there was slump in market and financial crunch was being faced by the OP. So the OP is not able to refund the amount for at least six months. I am unable to accept the argument of counsel for OP. Financial crunch of the OP is no defence in the eyes of law. The complainant is not concerned about the same. 17. However, I may mention that complainant is not entitled to compensation for delay in possession, alongwith refund. The reason being that compensation for delay can be given only when the complainant accepts possession. When she is not willing to take possession and she is claiming interest, she cannot claim double benefit i.e. one by way of compensation for delay possession and other by interest on payment. To that extent, prayer of the complainant is rejected. 18. As a result of above discussion, OP is directed to refund Rs.44,03,407/- with interest @9% per annum from the different dates of payment till date of refund. She will also be entitled to litigation cost of Rs.1 lac. Keeping in view the submissions of counsel for OP, the OP is permitted to make the payment within two months from receipt of copy of this order. 19. Copy of the order be sent to both the parties free of cost. 20. File be consigned to Record Room.