R.K. Agrawal, J., President
1. The present Consumer Complaint has been filed under Section 21 of the Consumer Protection Act, 1986 (for short “the Act”) by Pawan K. Aggarwal (hereinafter referred to as the Complainant) against Opposite Party No.1, M/s. Sepset Properties Private Limited (hereinafter referred to as the Developer) and Opposite Party No. 2, Paras Buildtech India Pvt. Ltd., seeking refund of the amount paid towards purchase of Flat alongwith interest as the Opposite Party Developer failed to hand-over the possession of the Flat booked by him in the Project launched by the Developer in the name and style of “Paras Dew” to be developed at Sector 106, Dwarka Expressway, Gurgaon, Haryana.
2. Brief facts as narrated in the Complaint are that influenced with the alluring and attractive promises made and marketing material presented by M/s Sepset Properties Pvt. Ltd., Opposite Party No.1, (hereinafter referred to as the Developer) and Paras Buildtech India Pvt. Ltd., Opposite Party No.2, who were involved in the creation and development of various residential townships in the National Capital Region, in respect of their one of the Projects, christened as “Paras Dew” (hereinafter referred to as the Project) to be developed at Sector 106, Dwarka Expressway, Gurgaon, Haryana, and in order to spend his old age in comfort and to provide his family a quality standard of living, the Complainant, a Senior Citizen, had booked a residential Unit having Super Area of 1760 sq. ft., in the Project by paying booking amount of ?7.50 Lakhs on 29.12.2012. The sale consideration of the Unit was ?1,08,22,400/-. Vide Allotment letter dated 10.01.2013, Unit No. T-B/1401 situated at the 14th Floor was allotted to the Complainant, for which Flat Buyer’s Agreement, (hereinafter referred to as the Agreement) was executed between the Parties on 04.04.2013, i.e. after about three months of the booking made by the Complainant.By the said time, the Complainant had paid his hard earned money, amounting to ?1,03,29,242/-, which constitutes 96% of the sale consideration, as demanded by the Developer. The advertisement/brochure issued by the Opposite Parties stated that the Project would have: eco-friendly habitat, designed with very pristine view for rewarding living experience; various other necessary and recreational facilities, like exclusive club house, children’s play area, swimming pool, jogging and walking tracks, amphitheatre, multi-purpose hall etc.; manned security on entrance gates; water supply through underground supply lines and overhead tanks, rain water harvesting system; fire detection as per safety norms, electrical wiring in concealed conduits, power back-up etc.It is averred that the Developer continued to collect the instalments from the Complainant though they were not in a position to deliver the Project as per the promised date of delivery.Though the documents prior to the execution of the Agreement were endorsed with logo, goodwill and name of Opposite Party No.2, which was one of the verticals of the ‘Paras Group’ and its vision was to enhance lifestyles by crafting state-of-the-art residential projects, high-end commercial spaces etc., but the Agreement was executed only between the Complainant and the Developer and Opposite Party No.2 was not a Party to it.
3. As per Clause 3.1 of the Agreement, the possession of the Unit was to be handed over to the Complainant within a period of 42 months plus an additional grace period of 6 months from the date of execution of the Agreement, i.e. by 04.04.2017.The said Clause reads as follows:
“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 and not being in default under any of the provisions of this Agreement and having complied with all provisions, formalities, documentation, etc. as prescribed by the seller, whether under this Agreement or otherwise, from time to time, the seller proposes to hand over the possession of the Apartment to the Purchaser(s) within the period of 42 months with an additional grace period of 6 months from the date of execution of this Agreement or date of obtaining all license or approvals for commencement of construction, whichever is later, subject to Force Majeure.”
4. In due course of time, the stipulated period for delivery of possession expired because the Project was still under construction and was not near completion.Even at the time of filing the Complaint in June, 2017 the Project was moving at a very slow pace and there was no hope that it would be delivered in a next couple of years.The enquiries made by the Complainant relating to status of the Project fell on deaf ears and there was no substantial reply from the Opposite Parties.The Opposite Parties had no reasonable justification for the delay and none of the circumstances, resulting in the delay, were beyond their control and, therefore, they were liable to compensate the Complainant by paying adequate interest and damages towards financial loss, mental agony and hardships caused.Further, the Opposite Parties had imposed highly arbitrary, unfair, unreasonable and onerous conditions on the Complainant, which had serious adverse effects and ramifications on his rights, and the Complainant had no occasion to dispute the same as it would have resulted in rejection of allotment and forfeiture of amount paid by him, and, therefore, he had no choice but to accept the said unfair terms and conditions of the Agreement.
5. In the afore-stated background, alleging misconduct, fraudulent activities, deficiency in service, diversion of funds to other projects and unfair trade practices on the part of the Opposite Parties in not handing over possession of the Unit booked despite lapse of stipulated period and payment of over ?1.00 Crore, the Complainant has filed the present Complaint, seeking the following reliefs:
“A. Direct the Opposite Party(s) for an immediate 100% refund of the total amount of INR. 1,03,29,242/- (Rupees One Crore Three Lakhs Twenty Nine Thousand Two Hundred Forty Two Only) paid by the Complainant, along with a penal interest of 18% per annum from the date of the receipt of the payments made to the Opposite Party(s);
B. Direct the Opposite Party(s) to pay compensation of INR.10,00,000/- (Rupees Ten Lakhs 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(s);
C. Direct the Opposite Party(s) to pay a sum of ?1,00,000/- (Rupees One Lakh Only) to the Complainant as a whole, towards litigation costs;
D. That any other and further relief in favour of the Complainant(s) as the Hon’ble Commission may deem fit and proper in the fact and circumstances of the case.”
6. The Complaint has been resisted by the Developer by filing its Reply.While denying the allegations leveled against it, the Developer has submitted that the Complaint is premature since all the approvals for commencement of the construction work were received towards the end of 2013 and construction work commenced in January 2014 and in terms of Clause 3.1 of the Agreement the Seller is to handover possession within a period of 48 months from the date of execution of the Agreement or date of obtaining all licenses or approvals for commencement of construction, whichever is later, subject to force majeure.Under Clause 3.5 of the Agreement, the Purchaser has agreed that the Seller is entitled to extension of stipulated time for construction due to force majeure or other reasons, as stated in the Agreement, and in such event, no compensation or penalty is payable by the Seller to the Purchaser.The stipulated time for completion of the Project is subject to force majeure, which has been defined in Clause 11 of the Agreement and includes non-availability of essential raw material/manpower and non-granting of approval by any authority, including delay in issuance of commencement certificate or any other certificate etc.The Project is in advanced stage and 100% structure work has been completed and Clause 12.4 of the Agreement stipulates that if the construction has commenced, then the Complainant shall not have any right to cancel/withdrew the Agreement for any reason whatsoever.The Complainant is not a ‘consumer’ as he had booked the flat for investment purposes, which is apparent from his conduct, wherein he has filed the Complaint before expiry of the period mandated for offer of possession under the agreement.
7. As regards Opposite Party No.2, it has been averred that the Project has been constructed/developed solely by the Developer and all licenses and approvals are granted in its name.It is an associated company of Opposite Party No.2 but Opposite Party No.2 is not associated for the construction/development of the Project.Opposite Party No.2 has no role whatsoever in the Project and should be deleted from the array of parties.
8. Clause E(2) and E(4) of the Agreement would show that the Complainant has entered into the Agreement after exercising his own judgment/intelligence and is not influenced by any sale brochure/advertisement etc.The Complainant is blowing hot and cold at the same time as on one hand he is relying on various contractual provisions in support of his submissions and on the other he is calling the other provisions arbitrary, which show his malafide and fraudulent intentions.
9. As regards diversion of funds, the Complainant is making false and defamatory statements without any material particulars.Accordingly, there is no unfair trade practice and deficiency in service on the part of the Opposite Parties and, therefore, the Complaint is liable to be dismissed with costs.
10. We have heard Mr. Aditya Parolia, learned Counsel appearing on behalf of the Complainant and Ms. Tanya Swaroop, learned Counsel appearing on behalf of the Opposite Parties and perused the material on record, including the Evidence adduced and the Agreement entered into between the Complainant and the Developer.
11. At the outset, we find that no specific allegation has been levelled against Opposite Party No.2. All the transactions have been made between the Complainant and the Developer. The Agreement has been entered into between the Complainant and the Developer. Opposite Party No.2 does not seem to be associated with the construction/development of the Project and all the approvals/sanctions have also been granted in the Developer’s name. Therefore, Opposite Party No.2 is deleted from the array of parties.
12. The submission of the Developer that the Complaint is premature since all the approvals were received towards the end of 2013 and construction work commenced in January, 2014, cannot be accepted. As per Clause 3.1 of the Agreement, referred to above, the stipulated period for handing over possession of the Unit booked by the Complainant was 42 months + 6 months’ additional grace period from the date of execution of the Agreement. As the Agreement was entered into between the Complainant and the Developer on 04.04.2013, the possession was required to be handed over by or before 04.04.2017. As far as the words “or date of obtaining all licenses or approvals for commencement of construction, whichever is later, subject to force majeure”, as appearing in Clause 3.1 of the Agreement, are concerned, it was for the Developer to obtain all the requisite approvals/permissions/sanctions before accepting the bookings from the prospective buyers. If it was not possible before accepting the bookings, then the Developer could have clarified this position to the prospective buyers, intimating them that the pending approvals etc. would be obtained in due course of time and the period prescribed for delivery of possession of the Unit booked would be dependent on the said factor. Had this been done, the buyers, including the Complainant, could have applied their mind and decided the future course of action to be taken relating to the booking of the Units offered for sale by the Developer.
13. Except for non-availability of raw material/manpower, no other reason or inability which could be said to be force majeure has been indicated by the Developer.While the said problems cannot be said to be force majeure, the buyers are not responsible for the same and cannot be made to suffer therefor.It was only for the Developer to ensure the availability of requisite raw material and manpower for timely completion of the Project.However, if there were indeed such problems on account of which the Project was getting delayed, the Developer could have taken corrective measures, including engagement of Sub-Contractors, who could have helped in timely completion of the Project by providing their own resources.But, it is evident from the record that the Developer did not take any such measures and was alone responsible for the delay in the Project.
14. In support of its plea that the Complainant was not a ‘Consumer’ and had booked the Unit in question for investment purposes, the Developer has not adduced any evidence nor produced any supporting document and, therefore, this plea also does not hold water in the light of the judgement of this Commission in Kavita Ahuja vs. Shipra Estates I (2016) CPJ 31, in which the principle laid down is that the onus of establishing that the Complainant was dealing in real estate i.e. in the purchase and sale of plots/ flats in his normal course of business to earn profits, shifts to the Opposite Party, which in the instant case the Opposite Party Developer had failed to discharge by filing any documentary evidence to establish their case.
15. Further, the submission of the Developer that the Project was in its advance stage and 100% structure work had been completed and in terms of Clause 12.4 of the Agreement and, therefore, the Complainant had no right to cancel/withdrew the Agreement also belies from fact that even till today the possession has not been offered/handed over to the Complainant.
16. As regards one-sided terms and conditions in the Agreement, it is well settled by a catena of decisions of the Hon’ble Supreme Court and this Commission that the one-sided, arbitrary, unfair, unreasonable and onerous terms and conditions in the Sale Agreements are not applicable.A reference can be made to the judgment passed by the Hon’ble Apex Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, II (2019) CPJ 34 (SC), wherein the Apex Court has observed as follows:
“6.7. A terms of a contract will not be final and binding if it is shown that the flat purchasers had no option but to sign on the dotted line, on a contract framed by the builder. The contractual terms of the Agreement dated 08.05.2012 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 the flats by the Builder.
7. In view of the above discussion, we have no hesitation in holding that the terms of the Apartment Buyer’s Agreement dated 08.05.2012 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.”
1. Therefore, on one hand even if the Complainant relies upon certain conditions of the Agreement and on the other challenges the other conditions, it cannot be said that there were malafide or fraudulent intentions of the Complainant in filing the Complaint.However, we agree with the submission of the Developer that there was no diversion of funds to other Companies as no supporting material in this behalf is forthcoming on the record.
2. It is admitted fact that the Complainant booked Flat in the year 2012 and despite receiving a huge sum of ?1,03,29,242/-, the Developer failed to deliver the possession of the Flat till date.Keeping in view the Judgment passed by this Commission in Emmar MGF Lan
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d Ltd. & Ors. vs. Amit Puri [II (2015) CPJ 568 NC], wherein it was laid down that 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, it is held that it is well within the Complainant’s right to seek for refund of the principal amount with interest and compensation as construction is still not complete. We are of the considered view that the Complainant cannot be made to wait indefinitely for the delivery of possession and the act of the Opposite Party in retaining the amounts deposited by the Complainant, is not only an act of Deficiency of Service but also amounts to Unfair Trade Practice. 3. In view of the foregoing discussion as also the decisions of the Hon’ble Supreme Court in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra [II (2019) CPJ 29 (SC)] and Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan [II (2019) CPJ 34 (SC)], which are somewhat similar matters relating to non-delivery of possession of the Flat, the Complainant cannot be made to wait for an indefinite period and, therefore, he is entitled for refund of the amount deposited by him with interest. 4. Accordingly, the Complaint is disposed of with a direction that the Opposite Party Developer shall refund the entire amount of ?1,03,29,242/- (Rupees One Crore Three Lakh Twenty Nine Thousand Two Hundred and Forty Two only) collected from the Complainant, along with simple interest @9% p.a. from the date of respective deposit, till realization, within a period of six weeks from today.However keeping in view the facts and circumstances of the case, there shall be no order as to costs. Pending Applications, if any, also stand disposed of.