JUSTICE SUDIP AHLUWALIA, MEMBER

These Consumer Complaints have been filed under Section 22 of the Consumer Protection Act, 1986 alleging deficiency in service and unfair trade practice on the part of the Opposite Parties, and seeking refund with ancillary reliefs.

2. The facts and questions of law involved in these Complaints are identical except for minor variations in the dates, consideration amount and Flat numbers.Therefore these Complaints are being disposed off by this common Order. However, for the sake of convenience, CC/243/2019 is treated as the lead case, and the facts enumerated hereinafter are extracted from this Complaint.

3.      The factual background, in brief, is that the Complainant entered into multiple agreements with the Opposite Party No. 1, specifically the Agreement of Sale dated 25.01.2010, and both the Sale Deed and Construction Agreement dated 27.01.2010. These agreements were for the sale of an apartment to the Complainant by the Opposite Parties for a total consideration of Rs. 87,76,301/-.  Pursuant to these agreements, the Complainant was allotted Flat No.1934 in the Aliens Space Station-1 project and paid the full consideration amount through RTGS transfer. Subsequently, the Opposite Parties circulated a draft of an Amendment Agreement titled "Amendment to Agreement of Sale." Paragraph 1 of this Amendment stated that possession of Phase 1 would be provided within 36 months, with an additional grace period of 6 months calculated from 31.03.2017. However, the Complainant did not execute this Amendment Agreement due to the significant project delays that had already caused him substantial hardship. The Complainant sought clarification from the Opposite Parties regarding the delay in possession, which was initially scheduled for December 2011, but received no satisfactory response. On 17.12.2017, he issued a Legal Notice demanding a refund of the deposited amount with interest at 18% per annum, and an additional 6% penal interest after 60 days from the due dates, to be paid within two weeks of receipt of the Notice. In response, the Opposite Parties denied the Complainant's contentions and incorrectly asserted that the flats were ready for possession. Upon verification, the Complainant found that the flats were not in a ready condition and no Occupation Certificate had been issued. Aggrieved by the deficiency in service and unfair trade practices of the Opposite Parties, the Complainant filed the present complaint.

4. In the Complaint, he has prayed as following -

“a) The Opposite parties be declared and hold them guilty for deficiency of service and adoption of Unfair trade Practice by them.

b) The Opposite parties be directed to refund the entire cost of the flat along with interest thereon from the date of the agreed possession of the flat (i.e. w.e.f lstt July, 2012 including 6 months grace period) and which is more particularly set out in Particulars of Claim. Or alternatively

c) The Opposite party be directed to compensate the Complainant by paying 18% interest (on the total cost of the flat) accrued since 1st July, 2012 till possession of the flat not exceeding more than 1 month from disposal of the present Complaint.

d) The Opposite Party be directed to pay the Complainant Rs. 10 Lakhs towards physical and mental hardship.

e) The Opposite Party be directed to pay Rs. 3 Lakhs towards litigation expenses/ cost of the present Complaint.”

5.      The Opposite Parties entered appearance in the case and contested the same by filing their Written Version in which all the material averments made in the Complaint were denied. It was contented on behalf of the Opposite Parties that the Claim was deliberately inflated for the purpose of bringing the same within the pecuniary jurisdiction of this Commission, and that the dwelling Unit was actually purchased by the Complainant for a commercial purpose i.e. for earning profit by subsequently selling the same at a higher price, and that the delay in completion of the Project was for reasons beyond the control of the Opposite Party/ Developer on account of which, it is a clear case of Force Majeure for which the Developer cannot be penalised. In fine, the contention of the Opposite Party(ies) is that the Complaint is liable to be dismissed with costs.

6.      Evidence by way of Affidavit has been filed by Complainant(s) Mr. Cyrus Warden in CC/243/2019 and by Mr. Zubin Warden in CC/244/209; Evidence by way of Affidavit has been filed on behalf of the Opposite Parties by Mr. Ramesh Kumar Reddy Juture, Liaison Manager with M/s. Aliens Developers Pvt. Ltd.

7.      This Commission has heard both the Ld. Counsel for Complainant and Opposite Parties, and perused the material available on record.

8.      Ld. Counsel for Complainant in CC/244/2019 has argued that for over a decade, the Complainant has been compelled to reside in a  rented premises, incurring a substantial monthly rent. Specifically, the Complainant and his brother, Cyrus Warden (Complainant in CC/243/2019), have been living in the same rented accommodation, paying Rs. 1.6 lakhs per month. The rent, which started at Rs. 1.3 lakhs per month in 2013, has periodically increased by Rs. 5,000/-, resulting in the current rate of Rs. 1.6 lakhs per month; That the Opposite Parties have not provided any documentary evidence to support their claim that the unit was booked for commercial purposes. The Complainant is a commercial pilot, and Hyderabad serves as a pilot base for his employer, Jet Airways. Consequently, the Complainant booked the flat with the intention of residing there, and not for commercial use; That the decision of this Commission in “Aloke Anand v. M/s IREO Pvt. Ltd. & 2 Ors., CC/1277/2017” held that purchasing additional houses for investment purposes does not amount to commercial use unless the purchaser is engaged in the business of buying and selling houses; That the Opposite Parties' assertion of delays due to prolonged agitation in Andhra Pradesh against the creation of the State of Telangana is incorrect, and they have failed to produce any document to substantiate the existence of such agitation or its impact on their ability to meet delivery commitments. Thus, the claim of delay attributable to such agitation remains unsubstantiated and should not be considered valid.

9.      From his side, Ld. Counsel for Opposite Parties has argued that the Complainant has intentionally exaggerated the compensation and interest claims, overvaluing the amount to manipulate the complaint's eligibility for this Commission's jurisdiction. Consequently, the complaint should be dismissed for lacking pecuniary jurisdiction; That the booking of the unit by the Complainant was for purely commercial purposes, intending to benefit from anticipated price escalation. The current complaint is frivolous and vexatious, motivated by the downturn in the real estate market. The Complainant seeks a refund with 18% interest merely because the market conditions have become unfavourable; That the Complainant is a resident of Mumbai and had no genuine intention of residing in the upcoming project in Hyderabad. The booking was made solely to profit from the rising real estate market in Hyderabad; That the Complainant did not approach the Opposite Parties before filing the present complaint, neither for a refund nor for cancellation, nor with any prior grievance. This lack of communication undermines the Complainant's claim; That according to Clause VIII(a) of the Agreement of Sale, the timeline for delivering possession of the unit is not definitive due to circumstances beyond Opposite Party No. 1's control. Despite continuous efforts to complete the project, several unavoidable circumstances delayed the project, including prolonged agitation in Andhra Pradesh over the state bifurcation, the bifurcation itself, and the nationwide lockdowns which significantly impacted ongoing projects. These events in themselves qualify as force majeure; That the Opposite Parties No. 2-4 had no involvement in the service provided by the Opposite Party No. 1, and their inclusion in the complaint is intended to exert undue pressure and cause harassment; That under Clause VIII(g) of the Agreement, it was agreed that any delay in delivering possession would result in a compensation charge of Rs.3/- per square foot per month, which would be adjusted against any dues payable by the Complainant.

10.    The Sale Agreement between the Opposite Party(ies) and the Complainants was executed on 21.1.2010, it was stipulated therein that possession of the dwelling Unit(s) in question would be delivered to the Complainant(s) by the end of December, 2011 alongwith a grace period of 06 months i.e. latest by June, 2012.  But, no such possession had been offered even till filing of the Complainant in the year 2019 which was more than 6½ years after even the extended date for delivery of possession had passed.

11.    In such circumstances, the present case would appear to be squarely covered by the decisions of the Hon’ble Supreme Court in C.A No.3182 of 2019 dated 25.03.2019, “Kolkata West International City Pvt. Ltd. Versus Devasis Rudra”, and in C.A. No. 12238 of 2018 dated 02.04.2019 “Pioneer Urban Land & Infra Ltd. versus Govindham Raghavan”, in which it has been held that a Purchaser/allottee cannot be made to wait for an indefinite time. 

12.    In “Kolkata West International City Pvt. Ltd. Versus Devasis Rudra” (supra), it was observed inter alia -

“…..It would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession.  By 2016, nearly seven years had elapsed from the date of the agreement.  Even according to the developer, the completion certificate was received on 29 March, 2016.  This was nearly seven years after the extended date for the handing over of possession prescribed by the agreement.  A buyer can be expected to wait for possession for a reasonable period.  A period of seven years is beyond what is reasonable.  Hence, it would have been manifestly unfair to non-suit the buyer merely on the basis of the first prayer in the reliefs sought before the SCDRC.  There was in any event a prayer for refund. In the circumstances, we are of the view that the orders passed by SCDRC and by the NCDRC for refund of moneys were justified…….”.

13.    In “Pioneer Urban Land & Infra Ltd. versus Govindham Raghavan” (supra), it was held –

“9. We see no illegality in the Impugned Order dated 23.10.2018 passed by the National Commission.  The Appellant-Builder failed to fulfil his contractual obligation of obtaining the Occupancy Certificate and offering possession of the flat to the Respondent- Purchaser within the time stipulated in the Agreement, or within a reasonable time thereafter.  The Respondent- Flat Purchaser could not be compelled to take possession of the flat, even though it was offered almost 2 years after the grace period under the Agreement expired.  During this period, the Respondent- Flat Purchaser had to service a loan that he had obtained for purchasing the flat, by paying Interest @ 10% to the Bank.  In the meanwhile, the Respondent- Flat Purchaser also located an alternate property in Gurugram. In these circumstances, the Respondent- Flat Purchaser was entitled to be granted the relief prayed for i.e. refund of the entire amount deposited by him with Interest”.

14.    With regard to the 18% interest that has been prayed for in the complaint, this Commission is of the view that 9% interest is appropriate in view of the Hon’ble Apex Court’s judgment in “Experion Developers (P) Ltd. v. Sushma Ashok Shiroor, (2022) 15 SCC 286”, the relevant extract of the judgment are set out as below –

“32. We are of the opinion that for the interest payable on the amount deposited to be restitutionary and also compensatory, interest has to be paid from the date of the deposit of the amounts. The Commission in the order impugned has granted interest from the date of last deposit. We find that this does not amount to restitution. Following the decision in DLF Homes Panchkula (P) Ltd. v. D.S. Dhanda [DLF Homes Panchkula (P) Ltd. v. D.S. Dhanda, (2020) 16 SCC 318] and in modification of the direction issued by the Commission, we direct that the interest on the refund shall be payable from the dates of deposit. Therefore, the appeal filed by purchaser deserves to be partly allowed. The interests shall be payable from the dates of such deposits.

33. At the same time, we are of the opinion that the interest of 9% granted by the Commission is fair and just and we find no reason to interfere in the appeal filed by the consumer for enhancement of interest.”

15.    For the aforesaid reasons, these Complaints are allowed with the following directions-

(a)  The Opposite Party shall refund to the Complainants in both cases the entire amounts paid by them to the Opposite Party along with interest @ 9% from the dates of each respective deposit till realisation, within three months from the date of this Order;

(b)     The Opposite Party in both cases shall also pay Rs.10,000/- each to the Complainants towards litigation costs;

 (c)    In the event of non-compliance of this Order within the time specified, the outstanding amount(s) to be paid shall attract an interest @ 12% p.a.,  till the time of final realization.  

16.    Pending application(s), if any, also stand disposed off as having been rendered infructuous.